Tuesday 11 August 2020
A seller who agrees to undertake roof works to their property as a condition of sale fails to undertake the works.
In a property sale that took place in 2013, the sale and purchase contract (compromis de vente) stated that the seller would undertake building repair works to the roof before completion took place, and that they would produce an invoice to confirm the works had been carried out.
When completion duly took place several months later, the deed of sale (acte authentique) included in it a declaration by the seller that work had been carried out, although no invoice was produced.
Subsequently, the buyers suffered a significant infiltration of rainwater through the roof, as a result of which they convened a meeting with the seller and the notaire. At the meeting the seller was unable to produce an invoice and admitted that the work had not in fact been carried out.
As a result, the buyers bought a legal action against the sellers on grounds of a hidden defect (viche caché) in which they also sought damages from the notaire.
Although they were able to successfully sue the sellers, the court of appeal rejected any fault on the part of the notaire, stating that it was not their responsibility to carry out any particular verification with regard to the seller's declaration that work had been carried out on the roof.
The buyers contested the ruling, arguing that in law the notaire had a duty of care to their clients, which requires that they do more than merely process the formalities of an agreement that had been reached between buyer and seller; they must also provide an appropriate level of advice, warning them of the implications and any risks in the transaction, and ensure proper execution of the whole process.
The Supreme Court overturned the earlier ruling, siding with the buyers that it was the notary's duty to ensure the veracity of their work relied on by the buyer or, at the very least, to warn them of the absence of proof of the work allegedly carried out.