Sellers who deceived a buyer over the condition of their property successfully sue the notaire for negligence!
It is a tale that began in 2003, in the commune of Saignan (Vaucluse) when a couple sold their property to a buyer for €203,000.
The price was around €50,000 less than the market value due to the presence of visible cracks in the structure of the property, a defect the buyer, himself a builder, considered he would be able to rectify.
However, in a short space of time the condition of the property deteriorated significantly, resulting in a legal case being brought by the buyer. The local tribunal appointed a independent expert who considered that the property was not fit for habitation, and estimated the costs of remedial works at €200,000.
Also produced in court was a geological report commissioned by the local council in 1999, which lead the following year to a ‘catastrophe naturelle’ (natural disaster) being declared in the commune, due to drought conditions that had occurred. The declaration of a ‘catastrophe naturelle’ triggers the right to an insurance claim for remedial works.
The property in question was mentioned in the report, where the appearance of cracks was noted and with a recommendation that works to the foundations be carried out. These works were never carried out by the owners.
Neither the declaration of the natural disaster or the technical report were disclosed to the buyer or the notaire by the sellers, who choose instead to present a report from 1989, which stated that the cracks did not present a threat to the stability of the property.
Initially, a local court sitting in Avignon ruled in favour of the sellers, on the grounds that the price of the property was sold below market value, the cracks were visibly apparent, and the buyer was himself a building professional.
The buyer successfully appealed the decision, with the court ruling that, although there was no dispute about the existence of the cracks, the fact the sellers had hidden the fact that the property was still moving constituted a fraud.
As a result, the court ordered the seller to pay the buyer €200,000 for remedial works as well as €40,000 in damages.
However, unbowed and unashamed, the sellers decided to sue the notaire for failing in their duty of care in not making their own enquiries relating to the catastrophe naturelle, which they should have brought to the attention of the buyer.
Although the lower court threw out the case, the sellers appealed the decision, with the Court of Appeal sitting in Nimes finding in their favour.
The court ruled that whilst the sellers had lied to the buyer and the notaire, this by itself did not exonerate the notaire of their own professional responsibility to make all search enquiries on the property, stating:
« La SCP des notaires, dont le siège est situé à Apt, soit à quelques kilomètres de Saignon, ne pouvait ignorer la publication de l’arrêté interministériel du 27 novembre 2000, relayé qui plus est par la presse locale, et il devait en informer les parties par une mention ou une annexion à l’acte de vente, comme il l’a fait pour l’état parasitaire de l’immeuble, le diagnostic amiante et la sécurité de la piscine attenante ».
The court ordered that the notaires pay damages amounting to 50% of the penalty imposed on the sellers, amounting to €138,000.
Although the notaires appealed the decision to the Cour de Cassation the ruling was upheld, with the court ruling that the notaire was obliged to verify the statements of the seller, stating:
« le notaire est tenu de vérifier, par toutes investigations utiles, spécialement lorsqu’il existe une publicité légale, les déclarations faites par le vendeur et qui, par leur nature ou leur portée juridique, conditionnent la validité ou l’efficacité de l’acte qu’il dresse »
Ed: Since 2006, for properties in a 'risk' area, sellers have been obliged to obtain an official report on any natural disasters that may have been declared in the area/on the property, which notaires are obliged to bring to the attention of the buyer as part of the contract process. It is also now an obligation that applies to landlords.