Legal Issues When Purchasing an ‘eco-house’

Edward Coxall examines some legal issues that might arise when purchasing an ‘eco-house.

We recently acted for a client on the purchase of a house that had been self-built with eco-credentials by the vendor. With more and more houses now boasting eco-friendliness exactly what should you look out for when buying such houses?

In this particular case the construction of the building itself was sourced from either locally available materials (stones from a ruined building on the site) or “waste” materials, including old car tyres! It also included a Scandinavian “dry toilet” system and “reed bed” and perhaps rather more mundanely, solar panels (solar photovoltaic (PV)).

Just like any new-build, eco-friendly houses require planning permission. Assuming a valid permission has been granted there are a number of forms which are then required to be lodged at the Town Hall including a declaration of commencement of works and more importantly a declaration of completion of works and certification the works were carried out in conformity with the permission. This is a self-certification system and it is therefore important to obtain the Town Hall’s acknowledgement of receipt. It is from the date of receipt that the Planning Authorities have 3 months to contest the conformity of the works.

If there is no receipt of the certificate of completion of works then ensure there is a clause put into the contract which requires the vendor to obtain a certificate from the Planning Authorities confirming the absence of any contesting of the conformity of the works (attestation de non contestation de conformité).

It is also important to ensure, particularly where the build is part of a larger plot owned by the vendor, that the purchaser has all the necessary covenants and easements regarding rights of passage for services to the property.
With regard to guarantees and insurance for work carried out at a property, article 1792 of the Civil Code provides that a constructeur is strictly liable for structural defects in the works. Included in the definition of constructeur are architects, developers, technicians and any person who sells (after completion) a building that they have built or had built. The ten year guarantee starts to run from completion of the works.

In addition, article 242-1 of the Insurance Code provides that anyone acting in this capacity as owner of a property who carries out construction works must obtain an insurance policy guaranteeing any sums that may arise under the provisions of article 1792. One exception however is where the property is intended to be used by the owner or his family and in those circumstances the owner is not required to obtain the insurance. The purpose of this insurance is that it is a no fault insurance which enables the purchaser of the property to recover damages for defects without having to become involved in possible protracted litigation against the vendor/companies that actually did the work. This insurance is not to be confused with insurance that tradesmen (artisans) should have in place to cover their own liability but is in addition to it. In the absence of the insurance referred to above it would be necessary to pursue claims against the artisans or the vendor directly.

It is not often that “self-builders” who are intending to occupy the property themselves will obtain this insurance particularly where the construction methods are non-traditionnel as the cost would be high.

French regulations require all domestic property to be either connected to the main sewer or have a compliant individual system, generally a septic tank (fosse tout eaux). Any other system requires special dispensation from the relevant authority. As with the planning provisions it is important to ensure the relevant dispensations have been obtained: if they have not ensure that a clause is inserted in the contract obliging the vendor to obtain them. The dispensation may well set out certain conditions for example that the “composting area” for the dry toilet is set away from any wells or humid areas and that the reed beds (for treating the “grey” water) are weeded and tested annually for oxygen level and the amount of suspended matter. In this particular case the dispensation also contained a condition that required any purchaser to be informed of how the system works.

The installation of solar panels requires planning permission so it is necessary to check that aspect has also been included in the planning permission for the build. There will generally be two contracts: one dealing with the installation and connection to the network and the second relating to the purchase of energy produced.

In addition to the planning permission aspect it is also necessary to obtain authorisation for the exploitation of a system for electricity production in accordance with regulation number 2000-877 of 7 September 2000. This is delivered by the Department of Energy and Climate (direction generale de l’energie et climat).

Finally with regard to the contract for the purchase of electricity produced this will need to be assigned to the purchaser after completion. EDF Solaire will require the contract number, the meter reading and a copy of the completion deed from which they will then prepare an avenant (amending contract) transferring the contract to the purchaser.

© 2013 Edward Coxall, Mayo Wynne Baxter LLP