Tuesday 09 March 2021
The prescription period for bringing a legal action against a notaire is 5 years, but when does the clock start?
Like all professionals, French notaires have a legal responsibility to undertake their activities in a competent manner.
If they breach their duty of care they can be sued for professional negligence (responsabilité civile professionnelle). We have reported in the past on the litany of complaints that are made against notaires in our article Complaints Against Notaires.
That is why notaires take out substantial and expensive professional indemnity insurance (PII) against such claims.
Under Article 2224 of the Civil Code, there is a statute of limitations on claims of 5 years.
More precisely, the law specifies that "personal or movable actions are subject to a limitation period of five years from the day on which the holder of a right has known or should have known the facts enabling him to exercise it".
In concrete terms, this means that a legal action can be brought more than five years after the signing of a deed if the plaintiff only later becomes aware of the damage suffered.
The rule is a general one in relation to legal proceedings in France.
There have been several important rulings* handed down from the French Supreme Court (Cour de Cassation) in the past that support such an interpretation of the law, which has been confirmed in two further cases this year.
In the first case, a notary had in 2007 drafted a deed of sale for a piece of land, which was found to be encumbered by a right of way.
A neighbour, whose land was landlocked, claimed this easement.
After a lengthy trial, the easement was recognised by a court decision in 2014.
In May 2015, the buyer decided to hold the notary liable for failing to draw his attention to the risk of claiming the easement.
Not surprisingly, the notary argued that the action brought by the buyer was time-barred.
The Cour de Cassation ruled that "the limitation period for a liability action runs from the time when the damage is manifested and not from the time when the fault is committed".
The judges considered that the damage resulting from the notary's failure to act at the time of the deed in 2007 had only manifested itself when the purchaser became aware of his error, once the court decision had become irrevocable (Cour de Cassation 27.02.2020 no. 18-24008).
In a second case, the Cour de Cassation censured a decision of the Besançon Court of Appeal which had declared the action of a purchaser inadmissible as time-barred.
In 2005 the purchaser had acquired a residential building and a plot of land wrongly presented as belonging entirely to him.
The following year the purchaser's neighbours sued him, arguing that the parcel of land was in shared ownership.
After two lower court hearings, in 2016 the Besançon Court of Appeal ruled that an action against the notaire was time-barred.
However, the Court of Cassation overturned their decision, holding that the damage suffered by the purchaser had only occurred after the court decision in 2015, ruling that the disputed parcel was shared, so that the statute of limitations for the liability action against the notary had only begun to run from that date (Cour de Cassation 09.09.2020 no. 18-26390).
Twenty Years Maximum
Although, therefore, the 5-year period is a floating one, it cannot go on forever. Article 2232 of the Civil Code states that the starting point "may not have the effect of extending the extinctive prescription period beyond twenty years from the day on which the right arose."
*Cour de Cassation 1 July 2015, no. 14-16.555 and 26 January 2012, no. 10-21.529.