It’s a cliche to say that the French always do things differently to the Brits. The French change it round and say that the British do things differently from everyone else. But like all cliches there’s an underlying truth.
Disclosing problems in a house purchase is a very good example. The underlying principle in English law is “buyer beware” – put simply, it is up to the customer to determine the nature of what he is buying. A vendor isn’t allowed to misrepresent: however, if someone sells “a house” he is not thereby required to inform the customer exactly what is wrong with it. It is up to the buyer to inspect and find out.
This is the underlying reason behind the advisory services surrounding a English house purchase. A surveyor will provide a professional examination designed to discover any concealed flaws. A solicitor will take a look at the legal factors, carry out local searches, raise a large list of questions and summarise the ramifications. When a purchaser is satisfied he knows everything about the house that there is to understand, he’ll feel able to proceed.
Vice cache
In France the duty is placed on the vendor. The customer is not likely to undertake any significant analysis. The notary will provide him with evidence of title and details of any authorized charges and 3rd party rights. But apart from that the seller must act “in good faith” and to disclose problems in the property. A deficiency that’s intentionally not disclosed by the vendor, and which eventually materialises, is described as a vice cache or concealed defect. The customer can turn on the seller following the sale and demand either a reduction in price or a cancellation of the transaction.
What sort of things are we referring to? In essence, something that makes the property insufficient for the expected use, or which renders the use so totally different from that which was intended that the purchaser would not have bought it, either at the price arranged or at all. This may be something outside the property itself – for example too much noise in the neighbourhood. Or it might be an interior matter, like a crumbling wall that the seller has hidden.
In practice, there is usually an element of deceit required if a claim is to work. Buyers are required to undertake a degree of examination, such as any sensible individual would. Additionally, the many reports which the seller must provide (termites, asbestos, electrical installation 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 think, purchasers of property in France aren’t particularly well protected. The notary will aid as well as he can, but he is supervising a transaction instead of taking one side in opposition to the other. The system of legal responsibility for concealed problems gives an ex post facto solution that may be challenging to impose.
Solutions
It’s all very well pointing out a challenge, but what of the solution? Appointing a UK legal agent versed in French law may help, but in my experience it tends to complicate the chain of communication and build more uncertainty compared to reverse. I am more in favour of people exercising basic good sense. The notaire will examine title, to ensure that should not be an issue. Getting a survey from a UK-qualified surveyor resident in France ought to remove any niggles concerning the solidity of the construction. As for other matters, you shouldn’t be bamboozled by estate agents neglecting concerns of yours until they have given a reason that you fully understand. And for those who have any serious concern, obtain the answer in writing.
The fundamental rule in this as in other key decisions is to make sure you understand what is at stake 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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