Chateau de Chigy

Legal requirements

French Property Surveys

Property buyers in France benefit from a number of obligatory surveys and reports that the seller is required to have carried out. However, the surveys fall well short of a full building survey, so do not fall into a false sense of security about the amount and quality of information you will receive.

On this page we review the statutory surveys that the seller is required to supply, and in later pages we consider the wisdom and process of organising your own building and land surveys.

1. Statutory Surveys
2. Building Surveys
3. Land Surveys

Statutory Surveys

There are an increasing number of obligatory surveys and reports that must be provided by the seller as part of the sale process. These surveys and reports are collectively referred to as the Dossier de Diagnostic Technique (DDT). The documents are provided to the notaire for annexation to the sale and purchase agreement and, ultimately, the deed of sale. If the surveys are not carried out at the time of exchange of contracts they must be carried out before completion takes place.

You would be well advised not to sign the sale and purchase agreement without the reports being in place.
That said, it is possible for completion to be subject to, for instance, a clean bill of health for termites and septic tank. Some contracts provide that if termites are found then treatment should be carried out at the cost of the seller, but unless this clause also includes replacement of timber damaged by the termites it is of dubious value. The survey requirements are becoming an increasing burden for sellers, both in terms of the cost and the supply of information on the property to the survey technician. They are also a substantial legal responsibility.

In the absence of valid surveys being carried out the seller can be held liable for remedial works under legal rights relating to 'hidden defects'. Indeed, in the absence of the report on 'natural or technological risks', the buyer is entitled to withdraw from the contract, or demand a reduction in price. In practice, the notaire will insist on the surveys being carried out but if they do not you must raise the issue! At completion of the sale all survey reports must be within the date of their expiry period.

There have been concerns about the control and professional competence of those who undertake these surveys. In other cases, concern has also been expressed about the lack of independence of some firms, allied as they may be to estate agents, or construction companies, to whom they pay a commission. As a result, the government has tightened regulations on the training and accreditation requirements of those who undertake the surveys. The technicians are now also forbidden to have any formal links with notaires, and the use of retro commission payments to estate agents is no longer permitted.

All survey technicians must have received a certificate of competence through a certification body accredited to the Comité d’accreditation français (COFRAC), which should ensure some degree of professional competence and independence. There is also a professional association called Chambre Syndicale des Experts Immobiliers de France (CSEIF) to whom any reputable survey company is likely to be affiliated.

There are now ten surveys or reports that are now in operation, as follows:

1. Asbestos
2. Lead
3. Termites
4. Energy Efficiency
5. Natural or Industrial Risks
6. Gas Installations
7. Electrical Wiring
8. Septic Tanks
9. Radon
10. Geotechnical Survey
5.1.1. Asbestos Survey

A report on the presence or otherwise of products or materials containing asbestos, called amiante. This rule only applies to properties granted planning permission earlier than 1st July 1997. The period of the validity of the report is not regulated.

Lead Survey

A report on the presence or otherwise of paintwork that contains lead, in a report called the constat de risque d'exposition au plomb - CREP. This survey requirement applies to all properties built before 1949.
The report cannot be dated earlier than one year from sale completion. If lead is not found to be present, or to be so low as to not be a risk to health, then no further survey is necessary on a subsequent sale of the property.

The survey requirement also applies to the communal areas of a block of flats and to all rental properties let since 1st August 2008. In relation to rental properties the survey must have taken place within the last six years, and where lead is not found, no further survey is required. Where the large-scale presence of lead paintwork is found the technician undertaking the survey is required to inform the préfecture and the owner can be made to undertake remedial work.

There is no requirement to seek out and to report on the presence of lead piping in the property.

Termites Survey

A report on the presence or otherwise of termites (termites) and other similar destructive pests in the property. The survey is called the etat des risques parasitaires. It is only required within designated areas of the country. The estate agent or notaire will know if it is the case, but in the event of any doubt the local mairie will be in a position to advise. Accordingly, buyers need to take care about the risk of an infestation if the property is not located in an area where an obligatory survey is necessary.

If termites are found the owner is obliged to inform the mairie. The problem of termites is widespread in France, although it is most severe in the South West.

The cost of remedying a termite infestation is substantial. Not only will you pay thousands of euros for the treatment itself, but there is also the cost of repair, removal and replacement of the affected timber. The treatment can be done on a DIY basis, but as it requires injection into main timbers and walls (spraying is not sufficient), without a proper understanding of what you are doing there is no guarantee it will be successful. If a survey is required it cannot be dated earlier than six months from the sale contract. The quality of these reports is of a generally high standard.

However, errors do sometimes occur, which can be most serious where the technician has failed to properly pick up on the presence of termites in the property. Where a technician has been found to have been professionally negligent French courts have made divergent judgments on the nature of the compensation to the seller. In some cases the seller has been merely compensated for the loss of the opportunity to have purchased as a lower price; in several cases the sale itself has been annulled; in other cases the compensation has been limited to treatment being carried out; in yet other cases the surveyor firm has been required to pay for timber treatment, remedial works and damages to the buyer. The issue of the nature and level of the award becomes particularly difficult where, although the surveyor has found no current activity they cite evidence of past infestation. If subsequently a re-infestation occurs, what is the liability of the surveyor?

That question arose in a legal case with a buyer who had acquired a property for renovation and later found that it was infested with termites. In the survey report that had been carried out the technician had mentioned traces of termites infestation from the past, without the current presence of termites, but concluding that it was impossible to exclude the possibility that there might be a re-infestation. When the case reached the court of appeal the judges took the view that the damages payable to the buyer should be limited to the cost of new termite treatment. In coming to their decision they stated that the buyer was aware they had purchased in an area prone to termites, and that they had been informed of the past infestation and the risk that it might occur again in the future. The purchaser appealed the decision to the Supreme Court, the Cour de Cassation, who ruled that in stating there was no termite infestation in the property the technician provided a guarantee against the risk, stating:

«le dossier de diagnostic technique annexé à la promesse de vente ou à l'acte authentique de vente d'un immeuble garantit l'acquéreur contre le risque» Accordingly, they ruled that the survey company was obliged to pay for termite treatment, remedial works, and damages to the buyer.

Energy Efficiency

A report on the energy performance of the property is required to give the future owner some idea of the likely level of energy consumption and heating costs. The report is called the Diagnostic de Performance Energétique - DPE. The report must be carried out prior to advertising of the property, so must be shown in the property advert.

Provided it was carried out prior to advertising of the property and shown in the advert the report has only information value. If not, it is possible the report could be used by the buyer as a reason to withdraw from the contract or seek a lower price. The law on this point is currently untested.

The report will grade the level of energy efficiency using the European standard energy efficiency rating scale - A (economical) to G (high consumption) - in terms of the annual level of consumption of energy and greenhouse gas emissions. The period of validity of the report is ten years.

Natural or Industrial Risks

A report on any natural or industrial risks to which the property may be prone, together with a declaration by the seller on any previous insurance claim(s) on the property relating to a natural disaster.

The report is called L’état des risques naturels, miniers et technologiques (ERNMT). Since January 2018 it has been retitled Etat de servitude Risques et information des sols (ESRIS). It is required in those communes where there a risk prevention plan (un plan de prévention des risques naturels) in place or in preparation, or in those areas classified as at risk of seismic movement.

The report must stipulate, for instance, whether or not the property is located in a flood zone, an area prone to earthquakes, major storms, avalanches, subject to ground movement, near a dangerous factory, if there is exposure to radon, or in proximity to major lorry routes where dangerous materials are being transported.

From June 2020 it must also state if the property is located in designated 'noise' zone - zone de bruit, - as defined by a plan d'exposition de bruit (PEB). Such zones are those located near an airport, so do not be misled by the scope of the designation.

The report cannot be dated more than six months prior to the signing of the sale contract and must be updated if there has been a change in the designation of the area prior to completion. Basic responsibility for providing the risk report lies with the préfecture, in collaboration with the local mairie.

They will be able to provide the seller/surveyor with the standard ERNMT form, which you can find by visiting Geo Risques. You can also find out more about the risks in the commune you propose to buy on the same site.

The seller must also state separately whether they have previously received compensation from their insurer on a claim resulting from a natural or ‘technological’ disaster on the property, e.g. claim for subsidence, flooding, or storm damage. There should be a form to complete for this purpose.
Where the risk report is not provided a buyer has the right to seek recourse in the courts for cancellation of the sale contract, or a reduction in the sale price.

Gas Installations

A report on a natural gas installation (installations de gaz) in the property. It applies to those properties where the gas installation has been installed for at least fifteen years. The survey is called un état de l'installation intérieur de gaz. The period of validity of the report is three years.

Electrical Wiring

A report on the condition of the electricity supply in the property, where the wiring is over 15 years old. A survey is valid for three years. The survey is called un état de l'installation intérieure d'électricité. No survey is necessary where a certificat de conformité can be produced as evidence that the property complies with the regulations, provided the certificate is less than three years old.

Septic Tank Survey

A report on the condition of a septic tank for those properties which do not have mains drainage. This requirement has been applicable since 1st January 2011. All mairie are now required by the government to set in place an inspection of all septic tanks in their area, and to require owners to bring them up to standard if they do not comply. Some local councils have yet to undertake the surveys so you may find that one is not available for the sale and purchase contract. Accordingly, if the survey has not been carried out, it needs to be arranged by the seller and at their cost. The survey report must also have been carried out no later than three years prior to signature of the deed of sale.

The law also states that if the septic tank is found not to conform the new owner must bring it up to standard (or at least commence works to bring it up to standard) within one year. It is highly unlikely that this is a clause that will be enforced with any rigour (lack of resources to monitor systems and a lack of sanctions), but it does need to be borne in mind by the purchaser.

The cost of a new septic tank installation varies by type and size of installation, but can be anything from between €6,000 and €15,000.

Radon

In those areas covered by a plan de prévention des risques or an area where, as defined by regulation, a potential radon risk is present, the buyer must be informed of the existence of the risk. This requirement has been in place since 1st July 2018.

Geotechnical Study

In relation to the sale of building land there is a requirement for a geortechnical study (e´tude ge´otechnique) to be carried out, but only in those areas considered of high risk from ground movement.

Building Surveys in France

Whilst those from the UK will be familiar with the practice of a building survey prior to purchase (if only for valuation purposes), there is no such tradition in France. Indeed, if you are hoping to sign the preliminary contract on the basis of a 'subject to survey' clause it is unlikely that either the seller or notaire will accept it. In France, such a clause does not have a lot of meaning. So, if you want a survey undertaken then best to organise it prior to signing the sale and purchase agreement.

If you do decide on a survey you may well also have a problem finding someone to do it as there is no building surveying profession in France, in the same manner as in the UK. There are professionals who undertake diagnostic technique immobilier, but these are generally firms who specialise in the more limited statutory surveys that must be carried out, not a full building survey.

You could also choose to use a local French architect or engineer to undertake the job. Unfortunately, the training of architects in France does not necessarily qualify them to be able to undertake this task, as their professional expertise relates primarily to architectural design. An engineer will also lack suitable expertise in building surveying.

Another professional who would be able to help would be a building professional called a maitre d’oeuvre, or building contracts manager.

There are also RICS professional building surveyors from the UK working in France, whom you can find by visiting RICS. You will need to click on the box 'Finding a Surveyor'. You should also try building surveyors listed in our Services Directory. Many of the RICS building surveyors operating in France are expats from the UK. A small number of French building professionals are also members of the RICS. No doubt they are experienced and competent in this role, but there is a question mark about their legal status in France. This is because, at the present time, the RICS qualification is not recognised by the French regulatory authorities.

In the event of professional negligence, it is possible you would not be able to successfully sue them in the French courts. Accordingly, to minimise any risk, you should make sure that the RICS surveyor is registered as a business in France, and that they carry professional indemnity insurance (PII) for building surveys in France. Due to the lack of qualification recognition, UK surveyors find it difficult to obtain professional indemnity insurance, so make sure you ask to see their PII certificate (not be be confused with general public liability insurance).

We would also recommend that you ensure the RICS surveyor is actually a specialist and qualified building surveyor, and not a general surveyor from one of the other divisions of the RICS. Whether carried out by a French or foreign surveyor, one of the regrettable features of many professional building survey reports is the extent to which many seek to limit the liability of the surveyor. Thus, you may need to read the small print to discover those matters that the surveyor is not prepared to warrant, either because they have not been able to obtain access, or because of the need for additional testing or survey work to be carried out. We have seen some reports and contracts that have so many caveats in them that they are of very limited value.

Conversely, there are sometimes difficult judgements to make and, so concerned have become many professionals of being sued for negligence, they may well exaggerate the risk or defect in the property, leading you to either withdraw from the purchase or carry out unnecessary work. If you do not want to pay the fees that one of these specialists is likely to charge you for this service then you could also contact a local builder (or electrician, plumber, etc), who might be willing to take a look at the property for you, with the prospect that you might later engage them in the work. Clearly, if you adopt this approach you are not going to get the professional guarantees that would come with engaging an architect or surveyor. You may also consider it lacks the independence you need, but that is a choice you need to make.

Despite our misgivings about the limitations of a building survey, we do consider international buyers do not always take seriously enough the need to fully understand the condition of the property and, as a result, often pay over the odds and seriously underestimate the costs of renovation. A good survey is the best way of minimising risks attached to buying a property abroad, and can be used in price negotiations. It is also useful in giving you an idea of renovation costs and conversion options.

In arranging for a survey you should:

• Ask the surveyor about their professional indemnity insurance, obtain a copy of the policy, and request information on its scope;
• Discuss and agree with the surveyor beforehand what the survey will cover and what it will not cover; remember the seller is required to provide some limited survey reports so do not pay twice;
• Tell the surveyor about plans you may have for alterations, extensions or demolitions etc;
• Try to find a surveyor local to the property you want looked at as they will have a better understanding of local problems and construction types, property values and building prices.
• 4.1. Conditional Clauses
• A conditional clause in French is a condition suspensive.
• The sale and purchase agreement will always be a 'conditional contract', in the sense that the wishes of both parties are subordinate to certain legal requirements, and the need to establish good title to the property before it can be sold.
• The purchaser (and seller) may also add their own conditions.
• So if you want confirmation on matters before you are willing to complete you need to include them in the sale and purchase agreement.
• The agreement will stipulate the manner in which the buyer will demonstrate fulfilment of the conditions, e.g. offer or refusal of mortgage, copy of planning consent or refusal.
• The contract will also state the date by which a condition precedent must be fulfilled. If it is not realised by this date the seller can withdraw from the contract, although it will be subject to the detailed contract conditions.
• Perhaps the most common and the most important condition is that relating to a mortgage. Other conditions may relate, for instance, to planning consent, the purchase of adjoining land, or to easements over the property.
• i. Mortgage
• If the property is being purchased with a mortgage it is important there is a condition that makes completion subject to a satisfactory mortgage being secured.
• The contract will contain in it a clause along the lines of 'condition suspensive d'obtention de crédit/prêt immobilier'.
• Even if by some oversight this clause is not included, provided the agreement does not expressly state that the property is being purchased without a mortgage, the law grants a presumption that a mortgage is being obtained.
• However, to ensure complete clarity, better to rely on an unambiguous conditional clause in the contract!
• It is likely the notaire will insist that any conditions are stated with a degree of precision, in order to reduce the scope for later disagreement and potential litigation.
• In relation to a mortgage the information should include the length of time during which the clause should remain valid and the main details of the mortgage - amount, duration, maximum rate of interest.
• It is not unusual for the purchaser to be granted 45 days to obtain a mortgage offer, after which the contract can lapse. If you are resident, and with a stable income, this is normally ample time, but it may be all too short for an overseas buyer seeking a French mortgage so if this applies to you try and negotiate a longer period in the contract.
• There is frequent litigation in the French courts concerning this condition suspensive, sometimes due to poor drafting or to delays in obtaining a mortgage, or simply because the buyer has had a change of heart and seeks to use it to withdraw from the agreement.
• A buyer seeking to rely on a mortgage rate lower than that stated in the sale and purchase contract risks losing their deposit.
• In a case before the French Supreme Court, the Cour de Cassation, a buyer signed a contract with a clause suspensive to obtain a mortgage at a maximum rate stated in the agreement.
• In seeking to obtain a mortgage at the best rate the purchaser subsequently made application for a mortgage at lower rate, on which he was refused.
• As a result, he sought to be relieved of the obligation to purchase the property on the basis of the conditional clause.
• The seller refused to accept that the purchaser had acted in good faith and brought an action in the courts, arguing that by seeking to obtain a mortgage at a lower rate it was contrary to the conditions laid down in the sale and purchase agreement, the compromis de vente.
• In a hearing at the Court of Appeal the judges found in favour of the purchaser on the basis that the mere fact of seeking a lower rate than that stated in the sale contract did not amount to a breach of contract. As a result, the seller was thereby unable to invoke the penalty clause contained in the contract.
• This was not the view taken by the Supreme Court to whom the seller appealed, who considered that the buyer had not fulfilled their obligation to seek funding in line with the conditions stipulated in the sale agreement, and so overruled the lower court.
• If you area seeking a mortgage then you may wish to read our guide to French mortgages.
• ii. Building Survey
• As a general rule, the use of a 'subject to survey' clause is not used in France, primarily because there is no such thing as a sale 'subject to contract' as is the case in the UK.
• Accordingly, if there is an issue concerning the condition of the property that you need to verify you may need to be very specific about it, or resolve the issue before you sign the contract.
• iii. Planning Consent
• Neither is it normal for the sale to be subject to obtaining full planning consent, as a planning application is likely to take some time to prepare and a planning consent, once obtained, can be later quashed if it breaches planning regulations.
• Accordingly, where planning is an issue, it is normal for the sale to be conditional on obtaining an 'in principal' planning certificate called a certificat d’urbanisme, which you can read more about in our pages on the Planning System.
• A new plot of land for construction of one or more dwellings requires a development permit, either a certificate d'urbanisme or a permis d'aménager. The former is normally sufficient for a plot for an individual house, but it will depend on the circumstances of the development e.g. infrastructure requirements, protected area.
• Conditional clauses concerning 'sale subject to planning consent' need careful drafting, not only in relation to the planning conditions that may be imposed, but also to a possible later legal challenge to a planning permission.
• iv. Easements
• You should ensure that the contract contains a relevant clause concerning easements (servitudes), so that completion is subject to no adverse easements on the property, or that, where appropriate, they are included to your favour.
• v. Good Faith
• The law only offers protection to a buyer who has acted in good faith.
• If a buyer withdraws from a contract because one of the conditions has not been fulfilled they can be asked by the seller to demonstrate that they made suitable efforts to get the condition fulfilled. A court of law can also judge all conditions to have been fulfilled if a prospective buyer does not act in good faith.
• Thus, where sale completion was subject to planning being obtained a court ordered that the sale was concluded, despite the fact that the prospective buyer had not made a planning application. The court ruled that by virtue of their inaction the prospective buyers had waived the necessity for planning permission to be obtained!
• Similarly, where the sale was subject to a mortgage but the purchaser applied for and was refused a larger mortgage than that which was stated in the contract, the court ruled damages were payable to the buyer.
• In short, a buyer cannot use conditional clauses as a way of merely giving them more time to decide whether or not they want to proceed with the purchase!

Pre-Contract Enquiries

Although we recommend you use the notaire for preparation and signing of the sale and purchase agreement (as opposed to going via the estate agent) there are limitations even on this approach.

The formal 'search' enquiries undertaken by them only take place after signing of the sale and purchase contract (compromis de vente) and are confined mainly to establishing proper title to the property and rights over the property.

In addition, although they make formal enquiries to the local council, those enquiries may only concern the perimeter of the property, and thereby exclude information concerning major developments in the locality.
The results of the search enquiries by the notaire are rarely comprehensive, due to shortcomings in the questions asked, and local authorities sometimes lack the resources to properly undertake the task.

We therefore consider it imperative that you undertake your own complementary enquiries, that the sale and purchase contract contains an appropriate clause concerning a full disclosure obligation by the seller, and that you insist the notaire makes a wider formal search beyond the boundaries of the property.

Thus, for instance, it may be pertinent to include clauses relating to access or the services to the property, and to any major local developments in the sale agreement if nothing is being stated on these issues in the draft contract. The notaire is competent to do the legal drafting of the clauses that are necessary.

In order to provide you with some idea as to what you should be looking for in the pre-contract enquiries, we have prepared a check-list of items, which you can find by visiting Pre-Contract Enquiries.

There are probably limits on the extent to which you can make full enquiries on all these matters, some of which will, in any event, be undertaken by the notaire, but the document serves as a check-list of the things you need to ensure are properly clarified.

One document that you should view at an early stage is a copy of the plan cadastral for the property you are proposing to purchase. This is the official public register of property ownership showing the boundaries of each property. There will be a plan cadastral for the whole parish in the mairie, but it would also be surprising if the seller did not have a copy they could show you. A copy should be provided by the notaire at the time you sign the sale and purchase agreement. Each parcel of land on the plan cadastral is numbered, so you will be able to see clearly the land you are buying. However, as we state in our pages on Land Registration in France, it is not a definitive statement of the land boundaries of the property.

Role of Notaires

A notaire is under a legal obligation to provide you with complete information on the nature and implications of the agreement you are signing. Most notaires do this job extremely well, insofar as it goes, as their primary role is to ensure you have good title to the property. Thus, although there are formal 'search' enquiries that are made by the notaire, they only occur after signing of the sale and purchase contract, and they are by no means as extensive as the 'pre-contract enquiries' that occur in the sale and purchase of property in the United Kingdom, between solicitors acting for seller and buyer.

Unless you ask for it notaires are not obliged to initiate a private consultation to provide you with tailored advice about your circumstances. It is not their job to hold your hand throughout the process in the manner that might be the case with a solicitor or avocat. Similarly, where there are opposing interests, it is questionable whether the transaction can be handled by a single person, whatever their formal level of independence. The situation can be particularly unsatisfactory in relation to conditional clauses which may be included in the sale contract. There is sometimes a difficult judgement to be made as to whether a condition set out in the contract has been fulfilled, and a single notaire acting for both parties may well be in an difficult position to make such a judgement.

Their competence and conduct also sometimes falls short of the standards required of them.Whilst it normal practice to use the local notaire, who acts for both parties, there is no reason why both buyer and seller should not each appoint their own notaire.This practice is not unusual amongst the French in Paris and other major cities and one that is now becoming more widespread in rural areas and smaller towns. It is likely to prolong the legal process, and we are aware of some cases that have become unnecessarily complicated and combative due to little more than a different approach by each notaire. However, at least you will have someone who can give you advice, away from the pressure of having a single notaire sit between buyer and seller. The general principle that applies is that it is the notaire of the buyer who drafts the contract and the deed of sale.

The estate agent can also often be a most useful source of advice, not only in relation to some of the legalities, but other administrative issues related to the purchase. It always pays to make use of their knowledge, although you need to remain aware they are legally contracted by the seller.

Unless you seek specific, detailed and specialist advice there is no increase in the fee for using your own notaire as the standard, official fee is shared between the two notaires. We consider it desirable to use your own notaire because, whilst notaires may well be professionally independent officials, their role in protecting individual interests is limited. If you do decide to have one notaire act for seller and buyer, you should note that the prerogative of choice lies with the purchaser.

Legally, the notaire does not need to know the property, or even operate within the locality, although it is obviously desirable that they have some local knowledge.
If separate notaires are used there are prescribed procedures that set out which notaire is responsible for drawing up the legal documentation and processing the sale. These procedures vary by department/region, but it is normally the notaire of the seller who leads. The buyers notaire will have an oversight on their work. The notaire is under a legal obligation to make sure that you understand what you are signing, but it is not always clear that this is a rule that is fully respected. If you are lucky, the notaire will speak English. If not, they should provide an interpreter for you. It is not unusual for this to be the estate agent, many of whom are bilingual. But, of course, the agent is acting for the seller, so some caution is needed. Do not pretend you understand what is being said if you do not.

If you choose to use the same notaire, then ask that you are sent the draft contract to go over in your own time, so you can be more confident of what you are signing. Even if language is not the criteria, we do recommend you visit the offices of the sellers notaire for a preliminary meeting prior to contract, as they are likely to be familiar with the property (and the seller!) and may have something useful to say to you, e.g. on the purchase price! If you can, try asking local foreign owners of their view of the local notaire, or of other notaires who may work in the area.

We appreciate the logistical difficulties for a foreign buyer of selecting their own notaire, but you do not need to have agreed a sale to ask for a meeting with one. Most notaires will be only too happy to see you for an introductory meeting on general issues, with the prospect that you might later come back to them once you have found the property you want to buy. If you want to find out who are the notaires in the area where you propose to purchase your property then you will find the national directory by visiting Notaires.

 

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