Clause suspensive - Notaire trying to hold us to purchase after diagnostic proves dry rot - mérule.

[ross.e]

Hello All

 

Firstly tanks in advance for any and all help and advice. I am anewbie to French Property.

I will try not to bore you with too many details and just stick to the real facts.

Ok....

In May we saw a property that we liked. It is extremely run down. We decided to use a Notaire in Calais who speaks some English. She has been in discussion with the sellers Notaire on our behalf.

Our Notaire suggested that we included a clause

that would allow us to pull out of the deal if there was dry

rot ‘mérule’ present in the structure.

We arranged to sign the Compromise at the our Notaire’s

office in Calais on June 25, 2015.  I had

asked about the diagnostic and was told that it would be done after we had

signed and paid the deposit. From that day on I sent numerous emails asking

when I would receive the diagnostic for dry rot ‘mérule’.

There was a delay in sending the cooling off letter as our

Notaire wanted it to be translated into English. This was fine – it did however,

take until September 3 for the translated cooling off letter to arrive.

At that stage I had been assured by our Notaire that the

conditional clause regarding the dry rot ‘mérule’ could be still enacted and

thus we were happy to let the cooling off period lapse, expecting that we could

pull out of the deal if and when the diagnostic showed dry rot ‘mérule’.

Some days after the cooling off period had lapsed I again

emailed our Notaire asking where the diagnostic was. I was then forwarded (by

our Notaire) an email from the sellers Notaire saying that she (the sellers

Notaire) was once again forwarding the diagnostic. It turns out that the

diagnostic was actually completed at the beginning of July.

I think somewhere along the way our Notaire had failed to

recognise that they had been sent it……..aghhhh

The diagnostic, once I had it, showed a fair amount of dry

rot and I wrote to our Notaire saying we would not go ahead with the purchase.

That was just over a week ago. Our Notaire (after reading through the

diagnostic) agreed and said that we were within our rights to pull out of the

deal.

Today I have received an email from our Notaire. It is the

forward of an email from the sellers Notaire. In it is attached an annex to the

dry rot diagnostic (a one page letter from the diagnostic firm) that sates that

there is no dry rot present. Dated October 9^th 2015

 

The seller’s Notaire says – thus we are not able to have our

deposit returned.

 

This is seems strange. There is no part of the dry rot

conditional clause that states how much dry rot there needs to be before the

clause can be enacted.

 

Also – of course I would not have let the cooling off period

lapse – had I been privy to the diagnostic.

I feel I am well within my rights to pull out of this deal.

I spoke briefly to an English/French lawyer today and he

told me that he thought that if we did not have the diagnostic (for whatever

reason) prior to signing the compromise, then that signing was void.

If this is a point of law – could someone post the a link to

the relevant laws etc

Any other comments/ help/ reflections/advice gratefully received.

Many thanks and kind regards

 

ross

[alittlebitfrench]

Sorry, is there actually dry rot in the house ? The first report says yes and the second no. Is that right ?

You are in a very unfortunate position.

Lets assume there is no dry rot, would you still buy the house ?

As I understand it, if there is dry rot in the house you get your money back. No dry rot, you must proceed with the sale.

[AnOther]

If the compromis contained the clause about dry rot then the cooling off period has nothing to do with it and you had the right to withdraw up to the instant of signing the acte if it was found to be present at any time prior to that.

If the diagnostic showed that it was present then I fail to see how the company who carried out the checks and found it can now say that there is none.

Their credentials are now completely compromised as is their report and the next step has to be to appoint an independent uninterested 3rd party to redo the diagnostics.

Regarding your deposit, it can only be forfeit with your consent or by the order of a court, it's not, as some seem to believe, a case of the Notaire just handing it over to a cuckold seller !

That said involving courts should be the absolute last resort.

[Patf]

https://www.frenchentree.com/french-property/selling-homes/diagnostic-surveys/

You'll see from this link that the diagnostic reports should have been attached to the Compromis de Vente.

So it seems you're not bound by the contract, but it's going to be complicated to get your deposit back.

[alittlebitfrench]

There is also thing in France called 'vice caché.

So lets assume you bought the house and there is indeed a dry rot problem. Your insurance company will take up a legal battle on your behalf towards the vendor, the diagnostic company and the notaire which you will win.

I dare say neither of those three wants to get into such a battle and a swift letter from a French lawyer may resolve the situation.

In the short term it is very important you get copies (better still the originals) of the two diagnostic reports because now you need a paper trail.

Any correspondence from now on (in French) needs to take place by recorded letter. That is how it works in France.

[idun]

Yes, every last thing by recorded and signed for.........And I will add to that, any correspondence you receive by post, keep the envelope it came in too. And print out any emails. You need a good paper trail in France.

[AnOther]

[quote user="Patf"]You'll see from this link that the diagnostic reports should have been attached to the Compromis de Vente.[/quote]We don't know that the routine diagnostic report wasn't and the fact that the OP's Notaire saw fit to advise a specific clause suspensive for dry rot mérule would seem to indicate that it was outside and above that and therefore not subject to that particular requirement.

Perhaps the OP can clarify that point ?

[woolybanana]

The OP states that the diagnostique was NOT done at the time of signing the compromis which I always thought was illegal.

In my current sale most of it has been copied into the compromis.

The OP cannot be made to but or lose deposit on this one.

Smells rotten.

[Patf]

I wonder if dry rot isn't specified in the diagnostics because it's a fungus, not a creature?

I should think it would be visible, so maybe a case of caveat emptor?

[ross.e]

[quote user="AnOther"][quote user="Patf"]You'll see from this link that the diagnostic reports should have been attached to the Compromis de Vente.[/quote]We don't know that the routine diagnostic report wasn't and the fact that the OP's Notaire saw fit to advise a specific clause suspensive for dry rot mérule would seem to indicate that it was outside and above that and therefore not subject to that particular requirement.

Perhaps the OP can clarify that point ?

[/quote]

 

Hi there OP here

 

yes that is correct the dry rot diagnostic was extra to the others. I did receive the other diagnostics at he time of the compromise.

 

Thanks all for your input so far !

[Chancer]

Have you paid any money?

 

Dry rot, then no dry rot, or should it be mérule and then mérule, was this perhaps translated to English or passed on orally by a French person? that could explain a lot.

 

My advice especially if you have not handed over any money is to stick to your guns and say you are not buying the property and play the long game, you may be without your money for a good while but the Notaire cannot pass on the money to the seller without it being decided in court, well thats the theory but some Notaires give little heed to their responsabilities especially if they are on the take or related.

 

ALBF's question also needs to be answered, would you buy it with the rot for a different price or buy it if the rot is removed? Be wary, any treatment/eradication is likely to be no more than a worthless piece of fraudulent paper.

[ross.e]

Hi Chancer thanks for your reply. And thanks to all others as well.

We have only paid a small deposit but would of course like to get that money back.

Our Notaire even agreed in an email to me that we were within our rights to not go through with the purchase - and now we have this'annex' to the orginal diagnostic - and the seller's Notaire saying that we will not get the deposit back. Its very curious and annoying.

 

No - we would not buy the property for less or at all now that this has come to light.

 

Stick to my guns - Yes - but how? - is your advice to get a Avocat and have them write a letter to the seller's Notaire? This could be expensive - if we do get our money back - will the expense of the legal fees to get it back be covered?

 

many thanks again

 

ross

[Rabbie]

[quote user="Patf"]I wonder if dry rot isn't specified in the diagnostics because it's a fungus, not a creature?

I should think it would be visible, so maybe a case of caveat emptor?

[/quote]Dry rot is quite often NOT visible occuring in hidden timber. When we bought our present house they found some dry rot when they weree removing an internal wall. It was very easily dealt with and there have been no problems after that.

[Chancer]

[quote user="ross.e"]

Stick to my guns - Yes - but how? - is your advice to get a Avocat and have them write a letter to the seller's Notaire? This could be expensive - if we do get our money back - will the expense of the legal fees to get it back be covered?

[/quote]

 

stick to your guns by doing absolutely nothing, you are in the position of power, by ceasing all communication it will eventually dawn on them that they are pi55ing in the Wind and are completely powerless and cannot even sell to someone else without seeing you right.

Dont get an Avocat, it will just be an endless round of letters going back and forth costing both parties and if one isnt able to pay then the other will cop for it.

 

Long game = forget all about it or at least make them think you have, you will get the money back, its not a question of if.

[ross.e]

Ok - thanks for the advice.

Do you mean that while we have a signed compromise that they are unable to sell to anyone else? before they return our deposit?

That makes interesting news.

please say more.

thanks

ross

[ross.e]

Hi Chancer and all

 

It seems mérule is not always mérule.....

 

In our compromise de vente there is a clause concerning mérule...if found we get out of jail free.

The situation now is that the diagnostic has found other species of dry rot namely -

Donkioporia and

Coniophore.

I can also find many examples on the internet that state the

following or similar -

"Le Coniophore est également un champignon de pourriture

cubique. Le nom scientifique est Coniophora puteana."

Is mérule a description of the mérule species only or is it used as a general term to cover -

'mérule et autres champignon

lignivore' as is so often stated in .gouv.fr websites.

Is there any precedent here....?? 

[alittlebitfrench]

This is how I understand it.

Mérule is a 'Champignon lignivore'

http://merule.comprendrechoisir.com/comprendre/champignon-lignivore

It seems to me that a diagnostic Mérule is what you would undertake to detect the presence of all Champignon lignivore.

http://www.merule-expert.com/diagnostic.ws

http://www.developpement-durable.gouv.fr/Merules-et-autres-champignons,22397.html

Whilst they have not dected mérule but two other forms (as I understand it more dangerous) of champignon lignivore you perfectly in your right to reject the house and your deposit returned given that 'mérule' is used so generally in diagnostics.

No one is going to prevent you from getting your money back. This might be useful.

http://www.jurisprudentes.net/Comment-regler-un-litige-avec-un.html

[ventodue]

[quote user="alittlebitfrench"]This is how I understand it.

Mérule is a 'Champignon lignivore' <snip> [/quote]

Correct, but please note that champignon lignivore just means a 'wood-eating fungus', a description that doesn't really say too much as it can be applied to a very great number of species.  For more info, please see my post at:

http://services.completefrance.com/forums/completefrance-forums/cs/forums/830089/ShowPost.aspx

[alittlebitfrench]

The point I am trying to make is that if you had no idea of the ins and outs of dry rot (like me and most people) and you wanted a test then you would go for diagnostic mérule in France. To have to list all the specific 'champignon lignivore' that you would reject the house on would be unfair. France is bad but not that bad. Well maybe in the north.

Both Notaires are trying their luck because the OP is an expat

[ventodue]

Having re-read all this thread, I feel obliged to pose the OP this question:

Are you sure you want to back-out of this purchase simply because of the presence of some dry rot?

I guess what I don't understand is that you said in your original post that the house is "extremely run down".  Well, surely then, it's hardly surprising that the place is riddled with dry rot?

Or have I missed something?

Craig

[ventodue]

[quote user="alittlebitfrench"]The point I am trying to make is that if you had no idea of the ins and outs of dry rot <snip> . [/quote]

Yes indeed, alittlebitfrench, and please accept my apologies if my post came across otherwise.

The http://www.developpement-durable.gouv.fr  link*  that you supplied does a pretty good job of covering the ground without getting too scientific.  But there's the problem: it IS just that, a scientific issue.  Because, while some species of rot, aka mérule, can be widespread and/or objects of concern, whether in terms of human health or the structural integrity of buildings, most are neither.

And to try to record their presence and reduce their spread via the methods proposed by the loi Alur is just plain silly.  But, hey ...  Governments, you know.

* Also this one: http://www.developpement-durable.gouv.fr/IMG/pdf/guide_prevention_et_lutte_merules_122007.pdf

[ross.e]

Hi Craig and other posters here.

Thanks for your input.

 

Yes I understand that you feel that if the house is extremely run down that we should expect some rot dry or otherwise.

 

That said we were advised to place the merule clause and from that point on decided that that would be the 'straw that broke the camels back' so to speak.

When weighed in the balance - the amount of rot and its potential to be ever present after us try/working/paying hard to get rid of it - just seems too much.

The building has other issues that we were willing to wear but a line has to be drawn somewhere.

thanks

 

ross

[ventodue]

Understood, Ross and thanks for posting back.

 

Yes, it's true that dry rot can be difficult to completely eradicate, partly for the reason I explained in the other thread, partly because the spores are flying about in their millions everywhere in the environment anyways ... [:)].  So the basic rule is, if the building you're looking at is either has a lot of timber in it, for example because it's timber framed or has a lot of internal wood panelling.  Or if the building already has a heavy infestation of dry rot*, then walk away.

 

Otherwise, don't be overly hasty.  There is a simple solution to dry rot, and that is no more than proper ventilation.  Dry rots don't like being exposed to moving air currents.  The air dries them out more quickly than they can take up the water they need.  They react by 'closing down' - they stop growing and feeding and will just sit there for, who knows? possibly hundreds of years, awaiting the return of more favourable conditions.  This inability to cope with draughts is one of the reasons why you generally won't find dry rot along the length of exposed roof timbers - but you will find it in the feet of rafters, close to the guttering, for example.  (It's also a reason for why you shouldn't hermetically seal a building, like most energy conservationists would like. But that's a whole other story ... [:-))])

 

* This mainly because of the high cost of replacing all the weakened timber.

 

HTH

Craig

[ross.e]

Hello again Craig and other posters here.

I seem not be getting anywhere with the Notaires.

I would like to clarify something about the Compromise de Vente.

We have what I presume is a standard form contract. We have paid a deposit.

1. I have heard that the seller can force you to buy? Is that correct?

or is the worst case just loosing the deposit?

2. Chancer (in this forum) suggested doing nothing and waiting it out? Does this mean that the seller is stuck with us until we either a) get our deposit back, b) agree that they can keep the deposit,

before they put it back on the market?

thanks

[Chancer]

That is my understanding but only from reading posts on forums, this place is crazy in that you have to do all the legwork yourself, find out your rights in order to force the person, in this case the Notaire to do their job which should consist of passing the knowledge on to you.

 

I believe that the money and more importantly the sale of the house is in limbo until both parties agree on who gets the deposit, in the absence of agreement one will have to get a judgement from a tribunale which could take years, that is why I think you are in such a strong position.

 

Your Notaire really should be the one advising you but it doesnt surprise me that he is sat sucking his thumbs and passing on the letters from the other Notaire, all he is interested in doing is the form filling admin and taking his fee, I guess we are Lucky to have solicitors doing the conveyancing in the UK or at least sitting behind those that do the legwork and will naturally advise you of your rights and what to do, even accountants seem to want to be told what to do in France, i get the impression that its the Customer paying their fees but they believe that they work for and are responsible to les impôts.