FRAUD ON THE PART OF THE VENDOR AND INCOMPETENCE ON THE PART OF THE ESTATE AGENT

Dol of the sellers and incompetence of the agent

In this case (sellers' dol and agent's incompetence) :

The deed of sale dated 30 September 2008 specifies that the property sold consists of ". a house with 3 rooms, kitchen, bathroom, wc, veranda, garage, set in approx. 7,500 m² of land with a stone shed, on land planted with local vegetation, and adjoining land registered in section G no. 921 and 923". It states that the land is located in a non-constructible zone (agricultural zone) of the commune's land use plan approved on 30 October 1980. He mentioned that two building permits had been obtained on 7 May 1973 and 23 October 1978. Visit planning permission of 7 May 1973 authorises the construction of a farm dog shelter with a total floor area of 35 m². And that of 1978 authorises the conversion of a dwelling with a total floor area of 58.85 m², subject to certain modifications.

Procedure (sellers' dol and agent's incompetence) :

1.

In support of their claims, the appellant purchasers argue that :

-The villa has a surface area of 110 m², whereas the permit only authorises 58.85 m².

-and that the part built without permission concerns the veranda, the garage and one of the 3 rooms in the house, a bedroom.

The defendants, their sellers, first put forward a plea alleging that their action was time-barred.

However, the court has already replied that there is no evidence that the purchasers, Mr and Mrs X, were aware of the difference between the surface area of their villa and the building permits issued before obtaining the latter from Aups town hall on 24 December 2014.

In fact, reading the deed of sale and the attached documents did not enable the purchasers to be aware of this difference, as the building permits were not attached to the deed of sale and the town planning certificate included in the deed of sale did not provide any information on this point.

The Xs therefore did not know the facts that would have enabled them to bring their action. This within the meaning of Article 2224 of the Civil Codefrom 24 December 2014.

As a result, they duly served the document instituting proceedings on 9 July 2015. This was before the expiry of the five-year time limit for the action.

The judgment dismissing the claim that the statute of limitations had expired is therefore confirmed.

Mr and Mrs Y, who sold the property, had it built. They never mentioned that they had carried out any work without permission.

They declared in the deed of sale that no work had been carried out on their villa for less than 10 years. What the town planning certificate issued on 16 May 2008, appended to the deed, confirmed .

2.

The purchaser spouses bring an action on behalf ofcall plans drawn up by Mrs E, architect DPLG.

They established that the part of the building built illegally had a surface area of 54.9 m². This is 52.53 % of the total surface area of the property, which is 104.5 m².

These statements are corroborated by the statement of facts drawn up by the bailiff's company on 1.02.2017. In other words, the day on which Mr and Mrs X took possession of the premises. This was after Mrs Y had waived her right to use and live in the property.

She does not dispute these facts.

The part of the villa that was built illegally, corresponding to the extension of the house by the construction of a veranda, a garage and a bedroom, appears in the designation on page 3 of their title deed. It is stated that the property was the subject of two building permits that were not attached to the deed.

The purchasers, Mr and Mrs X, demonstrate that in reality, on 25 July 1977, Mr and Mrs Y had applied to extend the surface area of the agricultural shelter to 104.4 m², which had been refused by an order dated 20 October 1977, and that they had therefore built in defiance of this refusal, with full knowledge of the facts.

3.

In this way, the vendor-builders knowingly concealed from their purchasers the fact that half of their house had been built without permission.

This fraudulent concealment led Mr and Mrs X to enter into the contract.

The latter are entitled to claim compensation for the resulting loss.

For estate agentsthe latter was responsible for publishing an advertisement expressly stating that the villa in question had a habitable surface area of 110 m² ("An truffle country, for nature lovers, just 1 km from the village, charming 110 m² house (...)" .

SARL JBS conseil admits that it drafted the promise to sell. It was in possession of the building permits.

In response to a complaint from the notary, Maître C, dated 3 September 2008, the estate agent replied: "The building permits are listed in the first paragraph on page 3 of the compromis, a copy of which has been sent to you. The originals of these documents are in the possession of your client, who sent them to us at the time; you will note that these permits are almost 30 years old." .

4.

4.1

The estate agent was therefore unprofessional. He knew the building and site permits, having visited them on several occasions.. From then on, he could only :

-. note that the building permit issued in 1978 clearly included half as much living space

-. and that the veranda, garage and third room were clearly missing from the plan of the permit.

The property professional was therefore liable in tort. His negligence led the purchasers to believe that the :

-issued in 1973 and 1978 

-authorised the construction of the 110 m² that the estate agent was offering for sale.

Without the fault of JBS Conseil, the fraud committed by the sellers could not have succeeded. As a result, since their respective faults also contributed to the damage, the estate agent will be condemned /...

-. in solidum with the vendor

-. to compensate the damage caused to husband and wife X .

4.2

With regard to the liability of notariesIt is common ground that a notary does not have to visit the property. This is to check the condition of the property sold and its consistency.

In the case in point, neither the sellers' declarations nor the town planning certificate issued by Aups town hall on 16 May 2008 allowed Maître D or Maître C to suspect that an irregularity had been committed during the construction of the property.

In particular, even if Mr C, who requested it in a letter sent to the estate agent on 3 September 2008, had been aware of the contents of the building permit granted in 1978 and in particular of the plan attached thereto, these did not reveal any discrepancy between the authorised living area and the description of the property that was the subject of the sale he was making, insofar as there is no evidence that either of the notaries was aware of the exact surface area of the property, which is not mentioned either in the promise of sale or in the deed that he executed.

Nor can the notaries be criticised for not having requested a certificate of conformity for work carried out in 1978. This requirement was only introduced after 1983 and disappeared in 2005 in favour of a declaratory system.

5.

No breach of their professional obligations may be held against ministerial officers.

It follows that all the requests made against them to be relieved and guaranteed by the notary are rejected. Whereas the notary is not responsible for the fraud.

The defendants in the action for damages maintain that their actions could not have caused any damage. No risk of demolition of the construction .

In fact, it is exactly argued that Mr and Mrs X no longer risk any criminal sanction. This is because the limitation period for prosecution is 3 years from completion of the work.

Similarly, a civil court may be seised of a liability action. It can order the demolition of an illegal building. Action for demolition based on article L480-13 of the Code de l'urbanisme is subject to :

-a limitation period of 10 years

-From completion of work on a building built before 18 June 2008.

6.

6.1.

Secondly, with regard to the administrative penalty incurred, i.e. first of all any action by the municipality to ensure compliance with the rules governing the operation of public services or governing activities subject by law to supervision by the administration in the public interest, while such action is not subject to any statute of limitations, it is unlikely in this case, as the connection of the disputed building to the network is not disputed by the parties.

On the other hand, when major work is to be carried out on a building all or part of which was built without planning permission, the application for authorisation must cover not only the work being carried out, but also the regularisation of work already carried out without permission.

The purchaser spouses, who do not invoke the risk of demolition of the property they have acquired, therefore argue that :

-the owner of an illegal building may not carry out major works on the property acquired

-without prior regularisation .

6.2

The vendor claims that this administrative sanction, which allows a municipality to oppose any new authorisation for work on the disputed property as long as the irregular construction has not been regularised, would not be applicable in the case of an irregularity concerning a construction carried out under the terms of a building permit and completed more than 10 years ago, in accordance with article L 111-12 al. 1 of the Code de l'urbanisme .

However, the ten-year administrative limitation period does not apply to work that :

-are built without a permit 

-. overturn the economics of the planning permission obtained .

Since Law no. 2006-8 72 of 13 July 2006, when a building has been completed for more than 10 years, refusal of planning permission or of a works declaration for new works can no longer be based on the irregularity of the initial building in terms of town planning law, but the situation is different in the specific cases listed in article L 111-12 of the law. And in particular "  e) Where the building has been constructed without planning permission" .

7.

7.1

This provision is aimed at the situation of an irregular construction, first and foremost:

-. that which has been carried out differently from the permit, when the modification alters the economics of the project

-particularly because it completely changes either its size (GFA) or its nature.

In this case, a building permit was issued for the construction.

But what was built by Mr and Mrs Y is very different from what was authorised. In fact, the GFA is almost double that authorised.

As a result, the ten-year administrative statute of limitations does not apply. And the situation of the property can only be regularised by the issue of a new permit.

New works can therefore be refused to the purchasers by the public authority. This is based on the irregularity of the initial construction in terms of town planning law.

On 30 April 2015, Aups Town Hall informed Mr and Mrs X that ". their plans to build a 110 m² villa required planning permission and the land was located in zone 'A' of the PLU, an area strictly reserved for agricultural holdings" .

7.2

In addition, a certificate from the Mairie of the commune of Aups dated 10 November 2015 establishes:

-In the event of a disaster, the rights to rebuild will only be those of the 58.85 m² authorised by the building permit issued on 23 October 1978,

-The property is located in an agricultural zone.

Only work to improve existing buildings is authorised.

The fact that there are no current appeals against buildings that have been erected and the allegation that the purchasers have already converted the garage into a habitable room are inoperative in this respect.

Husband and wife X, who are unable to regularise the situation of their property, which cannot be the subject of any alterations (an extension is already excluded by the property's location in an agricultural zone), nor of any identical reconstruction in the event of a disaster, and who will not be able to resell at the market price because of these serious impediments, have suffered direct, present and certain damage giving rise to a right to compensation.

8.

It follows that the judgment dismissing all their claims for compensation should be reversed.

The purchasers are not claiming compensation for the entire loss resulting from the loss of value of the property. Nor are they claiming nullity on the grounds of lack of consent,

They are entitled to maintain that if they had been aware of the illegal nature of the constructions carried out and of the inconstructibility attached to the very person of the beneficiary of the construction, they would not have acquired the property under the same conditions, or even would have renounced the sale if the sellers had refused to reduce the sale price in consideration of the defect in the construction and claimed to obtain the same price as a legal construction.

Conclusion (sellers' dol and agent's incompetence) :

As a result, the sellers' deceit and the estate agent's lack of professionalism have :

-. loses the chance to negotiate by knowing the loss of authorised surface area,

-. of around 54.9 m², i.e. 52.53 % of the surface area of the property.

The loss of an opportunity is not the same as the opportunity lost. This loss will be made good in full by an award of EUR 40,000 in damages. It should be noted that the purchaser spouses have the precarious use of the illegally acquired surface area.

Husband and wife X therefore suffered a number of setbacks.

This non-material damage will therefore be compensated by an award of EUR 5,000 in damages.

The vendor and the estate agent are therefore ordered to in solidum damages. It should be noted that Mrs Y cannot claim to be relieved and guaranteed by JBS Conseil. This is insofar as the fraud is imputable to her personally.

Dol of the sellers and incompetence of the agent

Aix-en-Provence Court of Appeal, Chamber 1-1, 2 June 2020, RG no. 18/09312

Dol of the sellers and incompetence of the agent

Lawyer in Bastia, Lawyer in Corsica, Real estate lawyer