Tuesday 10 September 2019
An estate agent and notaire have been found negligent in the drafting of the sale and purchase contract and of the deed of sale.
In a recent case heard in the French court of appeal sitting in Rennes, a couple sold their house through an estate agent whom they had engaged on an exclusive contract.
Preparation and signing of the sale and purchase contract (compromis de vente) was undertaken through the estate agent.**
As a result of the sale not proceeding, the sellers brought an action in the courts against both the estate agent and the notaire.
The court found that title deeds of the property mentioned the existence of a highways easement (servitude) that prevented any construction on a 35-metre wide stretch of the property.
The agent was not in possession of a complete copy of the title deeds, so in drafting of the sale and purchase contract they were not aware of the easement.
Although the contract included a standard conditional clause concerning satisfactory outcome of the planning search, the court considered that this did not exempt the estate agent from their responsibility, since it was incumbent on them to hold the full title deeds before the contract was drafted.
The estate agent also claimed that they were not informed of substantial building works carried out by the seller, which were likely to fall within the 10-year building guarantee, as a result of which there was no reference to the works or the liability of the seller in the sale and purchase contract.
Once again, the title deeds revealed that the seller had taken out a loan for building works to the property.
In addition, the court considered that the estate agent had made visits to the property and, in their capacity as a real estate professional, and in view of the importance of the work carried out, it could not ignore them.
The court therefore found the agent had committed errors in the execution of their contract with the seller by not requiring a complete copy of the deeds before drafting the sale agreement and by not mentioning the building works in the contract.
The court also examined the responsibility of the notaire in the subsequent preparation of the deed of sale (acte authentique).
It found the notaire committed a fault in drawing up and communicating tardily a draft deed mentioning the existence of an highways easement of that he had been aware for almost two months.
The notarial practice of sending all the documents in the file to the purchaser or their adviser in a single mailing, and not as and when they are received, could not justify the absence of timely information from them when a difficulty arose prior to the signature of the deed.
Similarly, the simple fact that the title deeds mentioned a loan for building works, and the very significant difference between the purchase price of the property in April 2002 (€144K) and the resale price in 2011 (€730K), justified at least the notary asking the sellers about the extent of the work carried out and making an appropriate reference in the deed of sale of the 10-year building guarantee.
The court therefore found that the notaire committed errors in the preparation and drafting of the draft deed of sale and incurred liability to the sellers.
**The contract can also more securely be prepared and signed through a notaire, as we indicate in our guide below.