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Guide to Selling Property in France

7. Statutory Disclosure Requirements

There are a number of important statutory disclosure requirements on the seller, and failure to comply with these requirements could lead to the sale being annulled or damages being paid to the buyer, or both.

The main requirements are as follows:

Hidden Defects
Surface Area
Easements
Tenancies/Licences
Planning Conformity

1. Hidden/Latent Defects

The most important of these statutory disclosure requirements relates to hidden defects, called a vice caché.

There is a huge amount of case law concerning the application and interpretation of these principles.

However, the courts have determined that certain defects are more self-evidently 'hidden' defects, such as defective foundations, termite infestation, flooding risk, and an unstable structure, provided of course they have not otherwise been brought to the attention of the buyer, for which the seller would need to provide suitable proof.

The definition of a vice caché is not precisely defined in law, but courts have stated that it must be something of a profound nature, of which the seller was aware at the time of the sale, and about which, if the buyer had known, they would not have proceeded with the purchase, or would have offered a lower price.

So the best defence against such a potential claim is full disclosure of the condition or other material facts relating to the property.

You would then need to ensure a clause was contained in the contract that made it clear that the buyer had been informed about the defect and accepted full knowledge and responsibility.

A more general clause in the sale contract stating that the property is sold 'as seen' (en l'état), and that the seller does not accept any responsibility for latent defects, would not necessarily exonerate the seller, particularly if it could be proved that they had acted in bad faith.

Where the seller themselves undertook major works to the property, which become the subject of a dispute, they cannot claim an exemption from the guarantee of hidden defects.

If a court decides that a property was sold with a hidden defect it can reduce the sale price, or declare the sale null and void.

The rule does not apply to the sale of new dwellings, which are subject to separate regulation (a guarantee against major defects for ten years).

Neither does it apply if the buyer is a property professional, engaged and registered on a professional basis in the construction, buying, selling and/or renting of property in France.

2. Surface Area

In relation to the sale of apartments or other grouped property, the seller is required to declare the overall internal surface area of the property, under a law called loi carrez.

If this figure is omitted, or incorrect by greater than 5%, then the sale can be annulled.

The seller can carry out the measurement survey themselves, or engage a professional.

3. Easements/Rights of Way

An ‘easement’ is a restriction on the right of use or possession of property agreed to by one party for the benefit of another party and in France it is known as a 'servitude'.

Once in place the easement normally applies to the benefit of the property, rather than any particular owner. So it is normally binding on future owners.

The most common easements are a right of way, flow of water, right of light and right of planting. There are also public easements relating to the presence of cables, pipes and roads etc.

An investigation into the existence of public easements should be undertaken by the notaire, but you are obliged to also disclose any you know about.