A cultural divide in that Dordogne character buy: Buyer beware vs. duty of good faith
It’s a cliche to say that the French always do things differently from the Brits. The French turn it round and say the Brits do things differently from everyone else. But like all cliches there’s an inner truth.
Disclosing defects in a character buy is a case in point. The inner rule in English law is “buyer beware” – in other words, it is up to the buyer to check the character of what he is buying. A seller is not entitled to misrepresent: but if someone sells “a house” he is not thereby obliged to tell the buyer everything that is wrong with it. It is up to the buyer to inspect and find out.
This is the inner reason for the advisory sets surrounding a British character buy. A surveyor will provide an expert inspection intended to uncover any hidden defects. A solicitor will examine the legal aspects, attempt local searches, raise a long list of questions and summarise the implications. When a buyer is satisfied he knows everything about the character that there is to know, he will feel able to proceed.
In France the onus is placed on the seller. The buyer is not expected to attempt any serious investigation. The notary will provide him with proof of title and details of any registered charges and third party rights. But except that the seller is required to act “in good faith” and to disclose defects in the character. A defect that is deliberately not disclosed by the seller, and which afterward materialises, is described as a vice cache or hidden defect. The buyer can turn on the seller after the sale and require either a reduction in price or a cancellation of the transaction.
What sort of things are we talking about? basically, anything that makes the character inadequate for the intended use, or which renders the use so different from what was intended that the purchaser would not have purchased it, either at the price agreed or at all. This may be something outside the character itself – such as excessive noise in the neighbourhood. Or it may be an internal matter, such as a crumbling wall that the seller has disguised.
In practice, there is usually an component of deceit involved if a claim is to work. Buyers are expected to attempt a degree of inspection, such as any prudent person would. In addition, the various reports which the seller is required to provide (termites, asbestos, electrical installations etc.) remove liability as regards matters covered in the reports.
Taking things on trust
An overseas buyer, bemused by the workings of the French system, let alone the language, tends to rely on the integrity of the people he is dealing with. If he is told that the seller has to tell him of all defects he may be relaxed. But he would be foolish to rely on it without inspection and verification. First, he may not understand what he is told. Secondly, once he has paid his money he will have to attempt court proceedings in France in order to acquire redress. Thirdly, the seller may have disappeared over the horizon. Fourthly – well, you get the drift.
Contrary to what many French believe, buyers of character in France are not particularly well protected. The notary will advise as best he can, but he is supervising a transaction instead of taking one side against the other. The system of liability for hidden defects gives an ex post facto cure that may be difficult to enforce.
It’s all very well pointing out a problem, but what of the solution? Appointing a UK legal adviser versed in French law may assist, but in my experience it tends to complicate the chain of communication and create more misunderstanding than the reverse. I am more in favour of people exercising basic shared sense. The notary will check title, so that should not be an issue. Getting a survey from a UK-qualified surveyor resident in France should remove any niggles about the solidity of the structure. As for other matters, don’t be bamboozled by estate agents dismissing concerns of yours until they have given an explanation that you fully understand. And if you have any serious concern, get the answer in writing.
The basic rule in this as in other major decisions is to ensure you understand what is at stake and take sufficient time to make a sensible decision, without being overinfluenced by emotion or people with other interests at heart.
Sounds easy, doesn’t it? Now let me test your resolve by showing you a dream of a Dordogne chateau that will make your heart overrule your head…