PROPERTY LAW: THE PURCHASERS HAVE NOT PAID THE DEPOSIT AND HAVE NOT APPEARED BEFORE THE NOTARY

Security deposit

1. Statement of facts :

On 18 November 2015, Anne-Claire and Mariline gave Haute Saintonge Immobilier, an estate agent, a non-exclusive mandate to sell a dwelling house located [...].

On 2 May 2016, Marlène and Claude made an offer to purchase the property.

Le sales agreement drawn up by the Haute Saintonge estate agency is dated 14 June 2016.

It stipulated that :

-. the sale had to be confirmed by deed no later than 30 September 2016

-and that the withdrawing party would be required to pay a 'fixed indemnity and penalty clause'.

Despite several reminders and two formal notices, the buyers did not go ahead with the sale.

On 21 October 2016, the estate agency filed the sales agreement in the chambers of Maître A.

The aforementioned sum of EUR 13,500 was not sequestered in the notary's office.

2. Procedure (IMMOBILIER : Deposit) :

By deed dated 26 July 2017, Anne-Claire and Mariline referred the matter to the Saintes Regional Court.

They summoned :

-Marlène and Claude,

-. the real estate agency Haute Saintonge Immobilier,

-. maître Anne C.

-. and SCP L., D., F., F.-M., R.-A. and C.

Their main requests were:

-cancel the sale

-payment of the sum of EUR 13,500.

The contract for the sale of a dwelling house should be rescinded. The purchasers failed to fulfil their obligations by failing to :

-pay the deposit of EUR 13,500

-and to attend the signing meetings arranged by the notary.

As a result of these breaches, they are liable to pay the penalty clause included in the sales agreement.

3. Court of Appeal :

The vendors had given the estate agent a non-exclusive mandate to sell the house.

They criticised him for not having taken any steps to ensure that the purchasers paid the deposit of EUR 13,500 into the hands of the notary who was to act as escrow agent for the compromise, which turned out to be the case.

However, the loss of chance of receiving the sum of EUR 13,500 as a penalty clause is non-existent.

In fact, the following is noted:

-the absence of any capacity on the part of the estate agent to do so

-and any means at its disposal to compel the purchasers to pay the sum in dispute.

As a result, the court rejected the vendors' claim in this respect.

The sellers make the same criticism of the notary. However, the notary is a third party to the sale agreement for which he was appointed receiver. Furthermore, the sellers do not prove that he accepted the receivership.

It can therefore only be held liable in tort.

However, he was not entitled to recover payment of the deposit that the purchasers had undertaken to deposit in the firm's account.

He also: took the necessary steps to draw up the deed of sale and advised the vendors, in their interest in completing the sale and receiving the proceeds.

The claim for compensation against him is therefore also dismissed.

4. Solution chosen (PROPERTY: Security deposit) :

The purchasers committed a tort against the estate agent, Haute Saintonge Immobilier, a third party to the sales contract, by refusing to fulfil the undertakings given in the preliminary sales agreement and by obstructing the signing of the contract of sale.deed of sale.

As a result, he was unable to receive the agreed remuneration of EUR 10,000 inclusive of tax.

He is therefore awarded this sum as compensation for his loss of earnings.

Poitiers Court of Appeal, 1st Civil Division, 10 November 2020, RG no. 19/00244