Pre-contract Enquiries

How to Avoid Pitfalls When Buying French Property

Pre-Contract Enquiries are generally raised in English conveyancing at the outset of the transaction. Typically they consist of standard questions which the seller is asked to complete, dealing with issues such as disputes with neighbours, boundary problems, guarantees for appliances and so on.

Most people who have bought or sold a property in England will be familiar with these. In addition the English solicitor will normally raise additional enquiries which deal with any particular concerns the buyer has, normally arising from the inspection of the property.

These enquiries are normally not raised by a notaire in France and are usually resisted by estate agents in France who invariably say that it is not French practice. The reasons usually given for not dealing with the enquiries are that all matters are dealt with in the compromis de vente either by way of representations from the seller or by way of suspensive conditions allowing the buyer to withdraw before completion.

This is somewhat disingenuous because firstly the object of pre contract enquiries is to get the seller to give ‘yes’ or ‘no’ answers on specific matters which may lead the buyer to ask further questions or renegotiate the price. The standard clauses in most Compromis de Vente are not comprehensive on this point and the Compromis de Vente is usually drafted by the selling agent or the selling notaire who is unlikely to want to include any matters which might impede the sale.

Similarly, suspensive conditions can only deal with known and ascertainable problems and it is unusual for the seller to accept any suspensive condition which is widely drawn. They are normally restrictively drafted and construed against the buyer. The buyer, of course, has the additional difficulty that his deposit will already have been paid over before any problem arises.

I set out below a few of the typical problems I have encountered when acting for purchasers of French properties. There are many more! In all these cases the buyer would not otherwise have been aware of the problem if they had simply purchased using the seller’s notaire:

1.The seller initially omitted to inform the buyer that there was a long-running dispute with a neighbour regarding the construction by the neighbour of a window in his house, which overlooked the neighbour’s rear garden, and into the kitchen. The buyer was not ultimately concerned about the window but would otherwise have been unaware of the ill feeling between the two neighbours and the fact that litigation was proceeding.

2.A property on the edge of a village had outstanding views across a field. This was one of the main attractions for purchasing the property. During the course of enquiries it became apparent that the field had been purchased with a view to becoming, within the next few years, an overflow cemetery for the village. The buyer withdrew from the purchase. This would not have been covered by any suspensive conditions and it is difficult to see how the purchaser could otherwise have withdrawn from the transaction if he had found out about it before completion.

3.The boundary down one side of a rural property was not defined. The estate agent assured the buyer that a ‘bornage’ could be carried out shortly before completion. This involves putting white pegs in the land to demarcate the boundary. When we insisted on dealing with before the compromis was signed rather than on completion further enquiries of the neighbouring landowner revealed that there was a neighbour feud and that the adjoining landowner would, under no circumstances, enter into any bornage agreement with the seller of the property.

4.The contract contained the usual termite and lead reports but the asbestos report was blurred on the copy. There were difficulties in obtaining a clear copy of the asbestos report though when one was finally produced it revealed extensive asbestos in the house.

5.The property being purchased had a chemin rural (rural road) between the main house and a field to the rear of the property. The seller and the selling agent were adamant that there was no possibility of this being used for any other purpose. It became apparent during further enquiries that there was a possibility of a housing development of fields relatively close to the property and the risk that the chemin rural would become more heavily used by traffic accessing the area to be developed.

6.A smart flat in a fashionable tourist resort was purchased with a view to holiday rentals. Assurances were given that there would be no difficulty with holiday lets. The co property rules were ambiguous on the question of holiday lets though enquiries of the management company resulted in the production of the minutes of the coproperty meetings which showed hostility within the building to any holiday lets. It also showed moves afoot to change the co property rules to prohibit any holiday lets.

The golden rule is that you cannot be too careful and if the seller tells you not to conduct a full investigation then you should become very suspicious. You should also be very suspicious of any property, which is described as a ‘bargain’ as, in my experience, bargains only exist with very real related problems, which the purchaser will have to resolve.

David Anderson is solicitor and chartered tax adviser at Sykes Anderson LLP.

Please note that taxation and property are complex subjects and you should not take or refrain from taking any step without full independent advice on the particular facts of your case. The content of this article is of a general nature and no liability is accepted in connection with it.