Buying A French Property? Buyer beware v. Duty of good faith
It’s a cliche to say that the French always do things differently to the Brits. The French turn it round and say the British do things differently from everybody else. But like all cliches there’s a fundamental truth.
Disclosing flaws in a property purchase is a very good example. The underlying principle in English law is “buyer beware” – in other words, it is up to the buyer to determine the nature of what he is buying. A seller is not permitted to misrepresent: however, if an individual markets “a property” he is not thereby required to tell the buyer everything that is wrong with it. It is up to the customer to inspect and discover.
Here is the underlying reason behind the advisory services surrounding a British house purchase. A surveyor will give you an expert inspection intended to discover any hidden defects. A lawyer will take a look at the legal aspects, carry out local queries, raise a long list of queries and summarise the ramifications. When a buyer is satisfied he knows everything about the house that there is to understand, he’ll feel in a position to move forward.
Vice cache
In France the obligation is put on the seller. The customer isn’t required to carry out any serious study. The notary will provide him with evidence of title and information on any authorized charges and third party rights. But apart from that the seller is required to act “in good faith” and also to disclose problems in the property. A deficiency that’s intentionally not revealed by the vendor, and which eventually materialises, is described as a vice cache or concealed defect. The buyer can turn upon the vendor after the sale and demand either a reduction in price or perhaps a cancellation of the purchase.
What type of things are we talking about? Basically, anything that makes the property inadequate for the expected use, or which makes the use so different from that which was meant that the purchaser would not have purchased it, either at the value arranged or at all. This may be something outside the home itself – such as too much noise in the neighbourhood. Or it might be an interior matter, like a falling wall that the seller has hidden.
In practice, there’s generally a component of deceit required if a claim is to work. Buyers are required to undertake a degree of inspection, such as any sensible person would. Furthermore, the various reports that the seller is required to provide (termites, asbestos, electrical installation etc.) eliminate liability as regards matters covered inside the reports.
Taking things on trust
An overseas purchaser, bemused by the functions of the French system, not to mention the language, tends to rely on the integrity of the individuals he is working with. If he’s told that the seller has to tell him of all defects he may be calm. But he would be foolish to rely on it without inspection and confirmation. First, he might not understand what he is told. Secondly, once he’s paid his money he will need to tackle courtroom procedures in France to be able to obtain redress. Thirdly, the vendor might have vanished over the horizon. Fourthly – well, you get the drift.
Unlike what many French think, purchasers of property in France aren’t especially well protected. The notary will advise as well as he can, but he is supervising a transaction instead of taking one side in opposition to the other. The system of liability for hidden problems gives an ex post facto remedy that may be hard to enforce.
Solutions
It’s all very well mentioning an issue, but what of the answer? Hiring a UK legal agent versed in French legislation may help, but in my experience it tends to complicate the chain of communication and build more misunderstanding compared to reverse. I am more in favour of individuals exercising basic common sense. The notary will check title, to ensure that shouldn’t be a problem. Obtaining a survey from a UK-qualified surveyor resident in France ought to remove any niggles concerning the solidity of the structure. As for other matters, you shouldn’t be bamboozled by estate agents dismissing concerns of yours until they have given an explanation that you grasp. And for those who have any serious concern, obtain the response in writing.
The basic rule in this as in other major choices is to make sure you understand what is at risk and take enough time to make a sensible decision, without being overinfluenced by emotion or people with other interests at heart.
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