4. Contract Conditions when Buying Property in France
- Conditional Clauses
- Cooling Off Period
- Options to Buy
- Statutory Disclosures
- Local Rates
4.5. Statutory Discloser Obligations
The law requires that the seller is obliged to provide all relevant information about the property to the buyer.
In particular, they must provide information on the following matters.
4.5.1. Hidden/Latent Defects
This is statutory protection for a buyer against a seller who may not have disclosed important information about the condition of the property or other problems in connection with the property.
A hidden or latent defect is called a vice caché.
Article 1641 of the civil code states: 'Le vendeur est tenu de la garantie à raison des défauts cachés de la chose vendue qui la rendent impropre à l’usage auquel on la destine, ou qui diminuent tellement cet usage, que l’acheteur ne l’aurait pas acquise, ou n’en aurait donné qu’un moindre prix, s’il les avait connus' .
This definition requires that it must be something of a profound nature, of which the seller was aware at the time of the sale, and about which, if the buyer had known, they would not have proceeded with the purchase, or would have offered a lower price.
Whilst it covers primarily building defects it also encompasses environmental problems not disclosed to the buyer, such as a proposed new development near the property or a neighbour nuisance.
The problem must also be something that was not reasonably apparent at the time of the sale, and a court of law will assume the buyer adopts a degree of vigilance in the whole process.
It is, therefore, a difficult rule to enforce in the courts and it is only valid for two years following the date when it was first discovered. So you need to act within two years of finding the problem.
The right does not apply where it can be demonstrated that the seller informed the buyer of the problem at the time of the sale.
This may be best evinced by inserting a clause in the contract that makes clear that the buyer has been informed about the defect/problem and accepts full knowledge and responsibility.
A more general clause in the sale contract stating that the property is sold 'as seen' (en l'état), and that the seller does not accept any responsibility for latent defects, would not necessarily exonerate the seller, particularly if it could be proved that they had acted in bad faith.
Unfortunately, the use of such a general clause has become common practice, with many notaires now automatically including an exoneration clause for the seller in a sale contract (non-garantie des vices cachés).
However, a court of law would not necessarily accept that the liability of the seller could be absolved so easily. The court would be equally interested in the intention of the parties, not just the written text.
Ask the notaire about the vice caché clause. Endeavour to get it removed from the contract, particularly if you have any concerns about the property or the seller. If the seller is unwilling to agree you may need to make further enquiries.
At the least you should certainly be hesitant about signing unless you fully understand what you are buying. If you have had a full survey of the property carried out that may provide the reassurance you need to accept such a clause in the contract.
It may also be enough for you to have obtained from the seller, with a relevant clause included in the contract, which provides information from them on the condition of the property and any defects with it.
If a court decides that a property was sold with a hidden defect it can reduce the sale price, or declare the sale null and void.
The rule does not apply to the sale of new dwellings, which are subject to separate regulation (a guarantee against major defects for ten years).
Neither does it apply if the buyer is a property professional, engaged and registered on a professional basis in the construction, buying, selling and/or renting of property in France.
Where major works have also been carried out by the owner themselves, which become the subject of a dispute, the owner has no entitlement to the guarantee.
4.5.2. Surface Area
In relation to the sale of apartments or other grouped property, the seller is required to declare the overall internal surface area of the property, under a law called loi carrez.
If this figure is omitted, or incorrect by greater than 5%, then the sale can be annulled.
The seller can carry out the measurement survey themselves, or engage a professional. Given the protection offered to the buyer concerning the surface area, you may find that professionals err on the side of caution in this task, in order to avoid being successfully sued by the seller in the event of a post-contract dispute between buyer and seller about the surface area of the property.
Other than in relation to the sale of apartments, there are no statutory guarantees in relation to the surface area of houses or land. It is also rare indeed that any contractual guarantees would be offered on the surface area of a house or on the land surface. It is more likely to be the case that the contract will contain a fairly standard clause that gives no guarantees.
If you are in any doubt, you need to do your own measurements, although get advice on just what parts of the property can be included in the calculation.
4.5.3. Easements/Rights of Way
An easement is a restriction on the right of use or possession of property agreed to by one party for the benefit of another party.
In France it is known as a servitude.
The land that benefits from the easement is the 'fonds dominant’ and the land carrying the burden of an easement is the ‘fonds servant’.
Once in place the easement normally applies to the benefit of the property, rather than any particular owner. So it is normally binding on future owners.
If the restriction, or right, is merely to the benefit of a person, rather than to the property itself, then it is an 'authorisation', not an easement, and is not binding on future owners.
The most common easements are a right of way, flow of water, right of light and right of planting. There are also public easements relating to the presence of cables, pipes and roads etc.
An investigation into the existence of public easements should be undertaken by the notaire, but their enquiries may not always be as comprehensive as may sometimes be required.
In addition, sellers are not always entirely forthcoming about easements, some of which may be so long-standing that they are not even recognised as such! They may also be unknown to the estate agent, although the agent does have an obligation to make such enquiries as is reasonably necessary eg asking the seller!
Strictly speaking, in order to ‘run with the property’ all easements must be registered with the French land registry.
However, this is not always the case, for easements of 'necessity’, which have been acquired tacitly by prescription (30 year use), or by the earlier division of a property (an easement that is called ‘par destination du père de famille’), are enforceable.
In some cases, it may be a public authority easement, which are not necessarily recorded on the title documents.
In other cases easements registered in the dim and distant past may not have been carried forward into title documents, but if the beneficiary can prove their continued use, they may also be accepted as enforceable.
In this respect, notaires are under no obligation to carry out a search going beyond 30 years.
Now it is unlikely that, in the event of a dispute, easements acquired tacitly would be upheld in a court of law unless they were clearly apparent.
If the notaire does discover them in the searches s/he is under an obligation to bring them to the attention of the buyer, and to ensure that they are included in the deed of sale.
What all of this means is that you do need to question the owner on the possibility of easements affecting the property, and to ensure that the notaire includes in the sale contract (and subsequently in the deed of sale) either that no easements exist, or that you are buying with clear knowledge of the easement.
It is important you request specific information from the seller, in front of the notaire, on the existence or not of any easements on the property and that the sale contract deals with the issue.
You need to ensure that, if you are reliant on an easement, then the sale contract makes clear your rights. Thus, if access to all or part of the property is dependent on an easement, it is paramount that this is clearly enshrined in the legal documentation for the sale.
Do not rely on verbal assurances or imprecise legal drafting.
You should ensure, in particular, that your successors have the benefit of the easement, failing which you may have problems passing it on, should you wish to later sell the property.
The contract should also make clear that completion is subject to your unencumbered ownership of the property.
You can read more about these issues in our Guide to Easements.
The seller is required to state whether or not there are any other legal interests over the land, including tenancies or licences.
However, sellers have been known to omit to mention, for instance, an informal licence granted to a local farmer on part of the land, which may not be known to the notaire.
Just because a farmer cuts the grass on the land for hay does not mean an agricultural tenancy is created, but if the owner receives some kind of payment in return it is quite possible a tenancy is in existence.
Once again, therefore, it is important to ask, in front of the notaire, as to whether or not there are any tenancies (informal or otherwise) on the property.
You should also ensure that the contract makes it clear that, on completion, the seller is required to grant vacant possession of the property. There have been cases in the past where family members or lodgers have refused to move out of a property and the buyer has only found out once the sale has been completed!
If there are any doubts, then insist that a penalty clause is included in the contract if the seller does not grant vacant possession. It is also possible to include a clause that states all the funds will not be released to the seller until you have obtained vacant possession.
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