Nobody Told Me This When I Bought My House

Hello Tony, I bought a property in the Charente region in 2004, apparently before I bought the house it had been visited by Saur (the water company) and told the toilet was inadequate, it is an electric mastigator system. At no point during the purchase was I told about this, not by the owners, the estate agent or pointed out by the notaire. As this house doesn’t have any land I am at a loss as to what they want me to do about it, nowhere to install a fosse septic. I am leaving U.K. on Tuesday to attempt to sort it out, as I speak practically no French I should have great fun with the Maire the water company and probably all the village. Any thoughts on this.

Regards Val

===

Hello Valerie

A seller is responsible for telling you about any "known" defects or problems with a property they are selling. I do not believe the Agent or Notaire is responsible for finding this out other than asking the seller if there are any known problems. The Notaire doe not act like a UK solicitor and usually a survey in not required in France.

Other than this it is a case of "buyer beware" and the buyer is responsible.

If you have proof that the seller was informed by the water company if this problem, a letter for example to them before the date of your purchase, then there may be a case for action against the seller. I do not know what time limits there are for this, you will need independent professional advice.

The electric mastigator toilets are common in France, I know of schools who have them fitted, I assume this goes into the public sewer. Is you home in a town or village and on a sewer? If so I do not see you have a problem.

The usual French attitude is to ignore everything if it works and leave well alone - you are unlikely to be bothered by the Mairie or the water company.

I am copying this mail to a UK legal firm who can act for you in France if you instruct them, I attach a copy of their charges

DO let me know if you are on a main sewer and how you get on

Bonne Chance

Tony

===

Hi Tony,

Thanks for your e-mail below.

I assume that Valerie did not take independent legal advice from someone like me, nor did she instruct an independent surveyor to check that the property and its services were in good working order.

For the reasons you have yourself already given in your e-mail to Valerie below, one should resist the temptation to sign a standard-form preliminary contract until you are satisfied that the various preliminary enquiries you should make about the subject property, its services and its locality do not reveal any adverse matters which, if you had known of their existence, would have dissuaded you from contracting to buy the subject property at the agreed price.

As you know, the caveat emptor rule (‘let the buyer beware’) is a cornerstone of the French conveyancing system. Under this rule, the seller and his agents are not generally legally obliged to disclose information about legal or physical defects which currently affect or which might in future affect the subject property and/or its immediate surroundings. An independent survey report should therefore be part of a prospective buyer’s priorities at a pre-contract stage.

As you know, there are three main exceptions to the French caveat emptor rule. First, the seller must by law disclose to the buyer any hidden defects (vices cachees) adversely affecting the subject property which only the seller knows about. This would for example include a property - inspected by a buyer in the winter - which nobody but the seller knew suffered badly from ant infestation in the summer months.

The second exception to caveat emptor is that the seller must by law sometimes obtain a report from an accredited expert certifying that the subject property is free from asbestos, termites and lead poisoning. If it is not, you can insist that the seller is required to have the appropriate remedial work carried out before selling the subject property to you.

Finally, the seller must by law give honest answers to direct questions from you. These could for example include whether the subject property has ever suffered from dry rot, whether buildings insurance cover has ever been refused (and if so why) or whether there have been past and present disputes with neighbours giving rise to complain about noise? If you can prove that the seller has not answered truthfully - hence the importance of written evidence - that you relied on the answers given to you by the seller, and that you have suffered a financial loss, you may be entitled to compensation.

However, litigation in France should be seen as a measure of last resort.

Of course, the seller and/or his estate agents or other representatives are entitled to refuse to answer your questions, but if this happens you may decide to withdraw from the proposed transaction on the basis that the seller may be hiding something important from you.

Subject to the above, the seller is under no legal obligation to disclose any information about visible defects (vices apparentes) or other matters which the buyer could have discovered for himself by making appropriate enquiries. An obvious example is a crack in a wall, which on inspection by the buyer’s surveyor may confirm that the subject property is subsiding, and/or suffers from other structural defects. Another example is a worn path across the land or fence in the boundary hedge which may indicate the existence of a public or private right of way over the subject property. A final example relates to French planning matters. The fact that building or other works have been carried out to the subject property does not necessarily mean that these works comply with French planning law. If the seller does not have all the necessary papers, you may need to make further enquiries via the relevant Authorities.

As you know, the majority of preliminary contracts contain a clause to the effect that the property is sold as is (en l’etat) meaning that the seller gives no guarantee as to the state of the subject property, and also excludes all liability for visible and hidden defects. I assume Valerie’s contract stated this to be the case.

If the seller takes steps to cover up a physical defect (e.g. papering over a crack in a wall) this might constitute a misrepresentation (untrue statement) which induced the buyer, believing the subject property to be free of cracks, to enter into a legally binding preliminary contract to buy the subject property. In some circumstances, failure to disclose something (e.g. an infestation of ants as mentioned above) can also be a misrepresentation by silence, especially if the buyer’s decision to enter into a legally binding purchase commitment would have been influenced if the buyer had been aware of that defect. A statement of opinion is not actionable unless it can be proven that the opinion was never genuinely held.

As explained above, the onus is on the buyer to find out as much as possible about the subject property, its services and its surroundings before the point when there is a legally binding preliminary contract for the purchase of the subject property. Language barriers apart, this of course presupposes that the buyer knows what are the right questions to ask, and to whom they should be addressed. Some of my competitors practice defensive action and issue as many, often irrelevant, questions as possible! Adopting the ‘blunderbuss’ approach is not uncommon, and it does nothing to speed up the French conveyancing process. Some are justifiably accused of stage-managing a bogus legal drama when none in fact exists. Indeed, there is an element of truth in the argument put forward by many French estate agents that an independent legal adviser in the UK can slow down the whole process.

To avoid these and other delays, what is important for you is to be able to confer with experienced bilingual lawyers you can trust, in a language you understand. They can listen to your specific needs and ask any relevant questions before providing you with the right answers (assuming they are able to obtain the information they need in order to do so).

To conclude, a buyer of property affected by the above or any other potentially adverse matters is generally deemed to have full knowledge of them. Even if the seller is aware of these matters, he is usually under no legal obligation to disclose them to you. Your only protection therefore is to obtain separate independent legal advice tailored to your specific requirements.

Kind regards

Stephen http://stephensmithfranceltd.com/