Selling a home: Be careful not to hide anything

At the end of 2010, a couple in the Pau region (Pyrénées-Atlantiques) sold accommodation without informing the buyers that it was known that a ring road was about to be built within 50 meters. The buyers filed a complaint against the sellers and obtained the cancellation of the sale and the reimbursement of the sums paid. In turn, the sellers then turned against “Optimhome”, the estate agency in charge of the transaction, accusing it of not having drawn their attention to the need to inform the buyers of the ring road project.

In a judgment of January 9, 2019, which was recently made public, the Court of Cassation agreed with them. It recalls that the Hoguet law (of January 2, 1970), which governs the profession, imposes on the estate agent a duty of advice: it should have drawn the attention of sellers to the risks involved if they refused to warn buyers appropriately. "In this case, it is pushing the duty of advice a great deal because the sellers knowingly lied to the buyers. They were in fact members of a ring-road defence committee and knew the scope of the project. The sellers, taken at their own game, rather wanted to find a culprit in the person of the real estate agent ", thinks Olivier Colcombet, president of the real estate network Optimhome.

More than just information

However, the courts have found that the agent's duty to advise is more extensive than providing simple information when visiting the accommodation. "He must inquire, check the regularity of the transaction etc and the decisions are even more strict when the agent is responsible for drafting the preliminary sales contract," said Maître Camille Fourier-Ferrand, lawyer at Cornet Vincent Ségurel.

Whilst not being an architect or a mason, the agent is not a layman in real estate and must bring added value that is not within the reach of individuals. "The agent must be well established locally in order to have a thorough knowledge of the city, town or district where the accommodation is sold, so as to ignore none of the defects that could affect the property", estimates Christine Fumagalli, president of the organisation ‘ORPI’.

The decision of the Court of Cassation also recalls the importance for sellers not to lie. The couple were ordered to cancel the sale and therefore reimburse 173,000 euros to the buyers. The couple then succeeded in reselling the accommodation but at a reduced price of 119,000 euros. "We regularly process files of this type and this creates serious financial problems for people", mentions Maître Camille Fourier-Ferrand. In the case of the house near the ring road, there was "fraud", that is to say a fraudulent scheme aimed at deliberately hiding a defect in the accommodation. But there may also be a hidden defect that sellers ignore and that reveals itself once the home is sold.

The purchasers then have five years to take legal action against their seller from the moment the defect is declared. If it is ultimately difficult to predict hidden defects, it is in any case important not to try to hide a known defect in the property, such as repainting damp spots or failing to mention that it is located right next to a nightclub.

Original author : Nathalie COULAUD - LE MONDE
Original article : https://www.lemonde.fr/argent/article/2019/05/21/vente-d-un-logement-attention-a-ne-rien-dissimuler_5464840_1657007.html

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