Choosing a French Property? Buyer beware v. Duty of good faith
It’s a cliche to state that the French always do things differently to the British. The French change it around and say that the British do things differently from everybody else. But just like all cliches there’s an underlying truth.
Revealing problems in a property purchase is a very good example. The fundamental principle in English law is “buyer beware” – put simply, it is up to the buyer to determine the nature of what he’s buying. A vendor isn’t entitled to misrepresent: but if an individual sells “a house” he is not thereby obliged to tell the buyer exactly what is wrong with it. It is up to the customer to inspect and find out.
This is the underlying reason behind the advisory services encompassing a British house purchase. A surveyor will supply a professional examination designed to reveal any concealed problems. A lawyer will analyze the legal aspects, carry out local queries, raise a large list of queries and summarise the significance. When a buyer is content he knows everything about the property that there is to know, he’ll feel in a position to move forward.
Vice cache
In France the onus is put on the seller. The customer is not required to carry out any significant analysis. The notary will supply him with proof of title and details of any authorized charges and third party legal rights. But apart from that the vendor is required to act “in good faith” and also to disclose flaws in the property. A defect that is intentionally not disclosed by the seller, and which subsequently materialises, is referred to as a vice cache or hidden defect. The customer can turn on the vendor following the sale and demand either a reduction in price or perhaps a cancellation of the deal.
What sort of things are we referring to? In essence, anything that makes the house insufficient for the planned use, or which renders the use so totally different from what was intended that the purchaser would not have purchased it, either at the value agreed or at all. This may be something outside the property itself – such as excessive noise in the general vicinity. Or it might be an interior issue, such as a falling wall that the seller has disguised.
In practice, there is usually an element of deceit involved if a claim is to work. Purchasers are required to undertake a degree of inspection, just like any sensible individual would. In addition, the various reports which the seller must provide (termites, asbestos, electrical installation etc.) remove liability as regards matters covered inside the reports.
Taking things on trust
An overseas purchaser, bemused by the workings of the French system, let alone the language, has a tendency to rely on the integrity of the individuals he is dealing with. If he’s told that the seller needs to make sure he understands of all defects he might be relaxed. But he’d be foolish to rely on it without examination and confirmation. First, he might not understand what he is told. Secondly, once he’s paid out his money he will need to undertake court procedures in France in order to obtain redress. Thirdly, the vendor may have disappeared over the horizon. Fourthly – well, you get the point.
Contrary to what many French think, purchasers of property in France are not particularly well protected. The notary will advise as best he can, but he’s supervising a deal rather than taking one side against the other. The system of legal responsibility for concealed flaws gives an ex post facto remedy which may be hard to enforce.
Solutions
It’s all very well mentioning an issue, but what of the solution? Hiring a UK legal agent versed in French law may help, but in my experience it has a tendency to complicate the chain of communication and build more misunderstanding compared to reverse. I am more in favour of people exercising simple good sense. The notary will verify title, to ensure that shouldn’t be a problem. Obtaining a survey from a UK-qualified surveyor resident in France should remove any niggles concerning the solidity of the structure. As for other matters, don’t be bamboozled by estate agents dismissing worries of yours until they’ve given an explanation which you fully understand. And if you have any serious concern, obtain the response in writing.
The basic rule in this as in other key choices is to make sure you understand what is at risk and take adequate time to make a sensible decision, without being overinfluenced by emotion or people with other interests at heart.
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