It’s a cliche to state that the French usually do things in a different way from the Brits. The French change it round and say that the British do things in a different way from everybody else. However just like all cliches there’s an underlying truth.
Disclosing flaws in a house purchase is a very good example. The fundamental principle in English law is “buyer beware” – in other words, it is up to the customer to check the nature of what he’s purchasing. A vendor isn’t entitled to misrepresent: but if someone markets “a property” he is not thereby required to tell the customer exactly what is wrong with it. It is up to the buyer to inspect and discover.
Here is the underlying reason for the advisory providers surrounding a British property purchase. A surveyor will provide a professional examination intended to reveal any hidden defects. A solicitor will take a look at the legal factors, carry out local searches, raise a long list of queries and summarise the ramifications. When a customer is content he knows everything concerning the house that there is to know, he’ll feel able to move forward.
Vice cache
In France the onus is put on the vendor. The buyer is not expected to undertake any serious analysis. The notary will provide him with evidence of title and details of any registered costs and 3rd party legal rights. But apart from that the vendor must act “in good faith” and also to disclose flaws in the house. A deficiency that’s deliberately not disclosed by the seller, and which subsequently materialises, is referred to as a vice cache or hidden defect. The customer can turn upon the vendor after the sale and require either a reduction in price or perhaps a cancellation of the transaction.
What sort of things are we talking about? In essence, something that makes the property inadequate for the expected use, or which renders the use so distinctive from what was meant that the purchaser wouldn’t have bought it, either at the value agreed or at all. This might be something outside the home itself – such as too much noise in the neighbourhood. Or it may be an interior issue, like a falling wall that the vendor has hidden.
In practice, there’s generally an element of deceit involved if a claim is to work. Purchasers are expected to undertake a degree of inspection, just like any prudent individual would. In addition, the many reports that the seller is required to provide (termites, asbestos, electrical installations etc.) eliminate liability as regards matters covered inside the reports.
Taking things on trust
A foreign buyer, bemused by the functions of the French system, not to mention the language, tends to depend on the ethics of the people he is working with. If he’s told that the seller needs to make sure he understands of all defects he might be relaxed. But he would be foolish to rely on it without examination and confirmation. First, he may not understand what he is told. Secondly, once he has paid his money he will have to undertake courtroom proceedings in France to be able to obtain redress. Thirdly, the vendor may have disappeared over the horizon. Fourthly – well, you get the drift.
Contrary to what many French believe, buyers of property in France aren’t particularly well protected. The notaire will aid as well as he can, but he is supervising a purchase rather than taking one side in opposition to the other. The system of liability for concealed problems gives an ex post facto solution which may be challenging to impose.
Solutions
It is all very well indicating an issue, but what of the answer? Employing a UK legal agent versed in French legislation may help, but in my experience it tends to complicate the chain of communication and create more uncertainty compared to reverse. I am more in favour of individuals exercising simple common sense. The notary will examine title, so that shouldn’t be an issue. Getting a survey from a UK-qualified surveyor resident in France should remove any niggles concerning the solidity of the structure. As for other matters, you shouldn’t be bamboozled by estate agents disregarding worries of yours until they have given an explanation which you grasp. And if you have any serious concern, obtain the answer on paper.
The fundamental rule in this as in other major decisions is to ensure you understand what is at risk and take sufficient time to make a sensible decision, without being overinfluenced by emotion or people with other interests in mind.
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