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

[ventodue]

[quote user="ross.e"]

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?[/quote]

Strictly speaking, yes: the seller has the absolute legal right to insist that you execute your undertakings under the contract - AND demand costs, damages and interest to boot.  I quote two sources below, the first from the droit-finances site, the second from Notaires de France, underlining the critical bits:

"Le compromis de vente signifie que, cette fois, l'acquéreur s'est engagé

à acheter le bien mis en vente par le vendeur, qui pour sa part s'est

engagé à vendre le bien à un prix déterminé. Leurs engagements

respectifs sont définitifs et les parties ne peuvent donc pas revenir en

arrière. Si l'acheteur ou le vendeur revient sur son accord, l'autre

partie peut le contraindre à exécuter son engagement en agissant en

justice."

"Dans le compromis, vendeur et

acheteur s'engagent l'un comme l'autre à conclure la vente à un prix

déterminé en commun. Juridiquement, le compromis vaut donc vente.  Si l'une des parties renonce à la vente, l'autre peut l'y contraindre

par voie de justice, en exigeant de surcroît des dommages et intérêts."

Can you please let us have the exact wording - in French - of your clause suspensive?

Also, please note, because accuracy in language is important:

1.  'Compromis de vente' - no 'e ' at the end of 'compromis'.

2.  What you paid over is called a dépôt de garantie.  This will normally be held by the notaire engaged by your seller.  From what I read  - and this is as alway subject to confiirmation/denial by others - the notaire is only entitled to release this money on instruction by his client.

"Le déblocage des fonds ne peut se faire qu’avec l’accord du vendeur."

Source: http://maprocedure.fr/immobilier/

[Patf]

We know an english couple who were in a similar position - they had signed the compromis, handed over a deposit. Then the vendor changed his mind about the amount of land he wanted to part with.

Our friends decided to pullout, and eventually, after about a year, they got their deposit back. I don't know how they managed that though.

In the meanwhile they were staying with some friends of ours, and couldn't afford to go for a different place withouth the deposit money. So frustrating all round.

We knew the vendor quite well too, it was a complicated family situation. A Dutch family, been in France 30 years.

[Antonia]

We turned up to sign the act authentique only to finder the vender still ensconced in the house and under the impression that he had at least three months to remove himself and his belongings after he had received the money. As neither ourselves or the Notaire could get out of him the exact date when he would leave we decided we wanted out. Our Notaire made it clear that we would, at the very least, lose our deposit and if the seller insisted we would have to compensate him for the loss of the sale. Our two options (according to the Notaire) were to buy now and charge the vendor rent or wait until he moved out. Fortunately he was out within the fortnight as we had to stay in a hotel having nowhere else to go.

Incidentally we had a clause suspensive concerning asbestos which was found in an outbuilding but as the vendor said he would remove it prior to the sale the Notaire felt it wasn't an issue.

[ross.e]

Conditions suspensives conventionelles

Hi

sorry - cant figure out how to make the french '

the clause reads as below

many thanks

Obtention par le Promettant d'un diagnostic Merule negatif.

Les presentes sont conclues sous la condition suspensive de l'obtention, aux frais du Beneficiaire, d'un diagnostic merule realise par un professionnel quailfie et independant au sens de la reglementation actuelle ne revelant pas la presence de merule dans les biens objet des presentes, avant la date de realisation de la vente

[Debra]

I'd write back to your notaire and tell him that as dry rot has been found, you consider the contract broken and require your deposit returned to you.   If he doesn't act, write to the seller, signed for, putting them under notice that the contract is broken and you require the return of your deposit.

My buyer had the standard clause suspensive that said they could back out if they didn't get a mortgage offer by a certain date.  They were supposed to provide proof of lodging their mortgage application by one date and proof of whether their application had been successful or not by another date.  They didn't do either and ignored my emails asking them what was happening.  I had to send them a 'mise en demeure' letter asking them to confirm whether the clause suspensive had been realised or not, after which I was free to sell the property to someone else and pursue them for the deposit (notaire couldn't just hand it over, it had to be applied for via court) or sue them to get them to complete the sale.  However, suing them to complete the sale would have tied the property up until the case was decided in court.

Your seller would have to go through this procedure and would have to go to court to get you to complete, being unable to sell his property in the meantime. 

My notaire didn't answer me for ages about what I could do to get out of the contract and sell to another buyer.  In the end I sent a simple question 'what do I have to do now to progress this matter so I can be free to sell this property'.  She then told me about the need for the 'mise en demeure' letter.  So try asking your notaire the simple question 'what do I need to do now to progress this matter and get my money back'. 

[Debra]

Just wondering - did you put the full ten per cent deposit down?  Sometimes notaires will accept a lower percentage of deposit but you are still liable for ten per cent of the agreed purchase price if it is found to be you who is at fault in breaking the contract.

[YCCMB]

The" avant la date de realisation de la vente" bit is soon going to get interesting..as, if I understand correctly, the diagnostic for merule only has a 6 month validity anyway. At this rate, that validity will have expired before you get a resolution to the problem you're having.

[alittlebitfrench]

Another problem with this is that never ever go through the process of buying a house in France that will involve the month of August. Especially when their are reports being conducted.

The OP made reference to the point the Notaire was in receipt of the report in July.

[YCCMB]

[quote user="alittlebitfrench"]Another problem with this is that never ever go through the process of buying a house in France that will involve the month of August. Especially when their are reports being conducted.

The OP made reference to the point the Notaire was in receipt of the report in July.[/quote]

Hence my comment?

Incidentally, when we bought our house, the immo got back to us and proposed August15 as the date for signing the Acte. It was down to me to point out the obvious after all the French parties involved had agreed in principle.....

Of course, once I DID point it out, they all agreed that it would be impossible for them to turn up on a public holiday. We did, however, complete in August..

[ventodue]

[quote user="ross.e"] ...

the clause reads as below:

Obtention par le

Promettant d'un diagnostic Mérule négatif.

Les présentes sont conclues sous la condition suspensive de l'obtention, aux

frais du Bénéficiaire, d'un diagnostic mérule réalisé par un professionnel qualifié

et indépendant au sens de la réglementation actuelle ne révélant pas la présence

de mérule dans les biens objet des présentes, avant la date de réalisation de

la vente. [/quote]

Hi Ross,

Thanks.  IMO (FWIW): at first sight, that looks ok (altho', as alittlebit french correctly pointed out earlier, it might have been preferable if the clause said champignon lignivore not mérule).

What you need to do

now is to follow Debra's advice: formally inform the seller that you wish to “Renoncer à l'achat de son bien”.  At this point, I need to

emphasise that both the correct language and the form of process, including how

the letter is delivered, are VERY important in France,

much more so in Blighty.  Get something

wrong and the whole thing can fall apart.

So it’s best to get your Notaire to do this

for you.*  But if needs be, don’t hang

around.  There is a model letter here:

http://www.pap.fr/conseils/modeles-de-lettres/non-realisation-d-une-condition-suspensive-lettre-pour-renoncer-a-l-achat-d-un-bien/a1703

 

This MUST be sent by lettre recommandée avec accusé de reception - registered post with proof of acceptance.

 

After that, you may well have to

be patient.  Unfortunately, as I said

before,  the seller’s Notaire cannot

release the dépôt de garantie funds without

the instruction of his client; and if that latter doesn’t want to co-operate …

Craig

(Doesn't the message editing software on this Forum just suck ...)

------------------------------------------------------------

* Btw, and I know some Brits still don't really get this:  a Notaire in France does NOT have the same responsibilities toweards you that a solicitor does in the UK.  His primary responsibilty is to ensure that the sale is handled in accordance with the law.  And indeed, he is mandated NOT to take sides, but be independent of both parties.

Ok, in practice, this impartiality can get breached on occasion.  But don't be surprised if some of his actions don't quite fit with your (Briitsh) expectaions.  If in doubt, ASK.

[ross.e]

Hello Craig

You are amazing. Thank you for going to the trouble to be so informative !!

I notice that the form letter you suggests says the following -

Enfin, je vous prie de trouver, ci-joint, le justificatif permettant de vous assurer que la condition ne s'est pas réalisée.

In this case the seller's notaire has already disputed my claim that Donkioporia and Coniophore are covered by the diagnostic merule.

She went back to the diagnostic company and they have sent a one page letter confirming that no merule is present only Donkioporia and Coniophore

what proof do you think I would include in this situation that seems to be a semantic definition problem about the meaning of merule.

??

many thanks again

ross

[Chancer]

Craig seems to be the one with the experience but I would just cite the document and say no more, use the correct procedure to say very firmly that you will not be buying the property and sit back and do no more, dont get into any arguments, dont try justifying anything, dont make any claims, you are pulling out pointe barre, eventually the seller will realise the sale is lost and he is wasting his time and cannot remarket the property, at that time you should get back your money.

 

Above all dont fuel their fire or their expectations.

[ventodue]

[quote user="ross.e"] …

the seller's notaire has already disputed my claim that Donkioporia and Coniophore

are covered by the diagnosticmérule.  She went back to the diagnostic company and

they have sent a one page letter confirming that no mérule is present, only Donkioporia

and Coniophore.

What proof do you think I would include in this situation, that seems to be a

semantic definition problem about the meaning of mérule? [/quote]

 

Ok, I begin to see the

problem more clearly [:)].  Right:

 

1. First off, I need

to repeat: if it REALLY is only wet rot (i.e. Donkioporia and Coniophore) that is present, then don’t panic.  Think about whether you really want to back

out.  For reasons previously stated, wet

rot isn’t normally super-serious.  (Ok, if

you own a stately home that’s been open to the skies for decades, then it might

be ..).  For what to do next, see my ps, at

the foot of this post.

 

But that said:

2.  It is quite unusual to find absolutely no dry

rot where there is wet rot present.  So

proceed with caution.  If it were me, I’d

commission another survey, not least because of what follows below …

 

3.  For your other query, “What is mérule?” 

Hmmm  …  Bit like saying, “What is rot?”.  But unfortunately, in this instance, I’m

going to have to say that normally it is a shortening of mérule pleureuse = Serpula

lacrymans = dry rot.

 

So, IMO, to use the clause suspensive mérule to

get out of this purchase, you’re going to need another survey stating that,

contrary to the first survey, there is indeed dry rot present.  Obviously, this second survey will have to be done at your expense.  If you do decide to go down this route, you

need to first get the agreement of the seller to accept its results.  Otherwise, you risk just having a fruitless battle between experts - (“Yours

says this, mine says that …”).

You can justify proposing a second survey on the grounds that I give above - wet rot and dry rot are normally found together.  If the seller's genuine, he’s may find it hard to say no, given that you're going to pay for the survey.  However, I can also see that, given that he already has the result he needs, he may refuse to accept having a second.  Difficult ...

 

What to do if you decide to carry on with the purchase:

You need to know just how

much rot there is, and where it is;  and then

you need a quote for its elimination, the replacement of all the infected

timber and  - most importantly - the

elimination of its cause (i.e. the source of streaming water that has allowed

it to get a hold).

 

If you want, you could

start by going back to the seller and proposing that the seller gets 3 quotes

from a list of contractors approved between you.  Just asking should certainly spoil their day,

at the very least.

[alittlebitfrench]

I have say 'Ventodue' you are doing a grand job helping out the OP.

I have to say this forum is quite novel in that people actually do help each other out without it becoming a contest to who offers the best advice.

[NormanH]

There are a number of people here who really know what they are talking about in certain areas, such as parsnips in Tax to give another example.

I am not bad but not infallible on health.

This has meant that there is less misinformation and fewer competions between the ill-informed.

[ross.e]

Hi Craig and all

I can find numerous references in French that seem to say Coniophore is dry rot....

"Le Coniophore est également un champignon de pourriture cubique. Le nom scientifique est Coniophora puteana."

&

Coniophora spp.

Les Coniophores (Genre Coniophora) sont relativement courants dans les maisons, quoique moins fréquents

que la Mérule (la majorité des observations de macromycètes). Ils produisent une pourriture cubique des

boiseries. Coniophora puteana (Schumach.: Fr.) P. Karst. est l’espèce la plus fréquente, mais on rencontre

également C. arida (Fr.: Fr.) P. Karst. et sa var. suffocata (Peck) Ginns ainsi que C. marmorata Desm. On

les trouve parfois à l’état stérile, mais les sporophores sont assez courants dans l’Est de le France. Il semble

que ces espèces aient besoin de plus d’humidité que la Mérule. On les trouve donc plus souvent dans les

caves. Ils causent une pourriture cubique active et ils forment généralement des rhizomorphes bruns à

noirâtres. Sur les hyphes les plus larges de ces derniers, l’examen microscopique montre parfois des boucles

verticillées, qui sont relativement typiques. On trouvera des descriptions de ces espèces dans Hallenberg &

Eriksson (1985) notamment.

This last article comes from

Problematique_champignons_xylophages.pdf

it seems very thoroughly researched....with extensive bibliography....

what do you think?

thanks

ross

[ventodue]

[quote user="ross.e"]I can find numerous references in French

that seem to say Coniophore is dry rot.... <snip> [/quote]

 a) I'm sorry, but that’s

NOT what I read, Ross.

 

In fact, the second source

that you quote specifically and correctly draws attention to the differences

between Coniophora* and mérule, aka Dry

Rot, scientific name Serpula lacrymans.

 

b) In any event, it simply

ain’t right anyways.

 

If you don’t believe me,

simply type the scientific name Coniophora puteana into Google UK.  All

will be revealed.  Btw, as an alternative

to ‘Wet Rot’ -  which, altho’ accurate,

is a bit of a ‘catch-all’ handle - a better vernacular English name for Coniophora

puteana is Cellar Rot.

 

Btw, the references in

the text to pourriture cubique are

not relevant.  This is a feature commonly

observed with many types of rot.  It is

not unique to any particular fungus.  Instead

it is due to the way in which the host wood is structured.

 

c) And in any event, all

of this doesn’t matter because the clause

suspensive ONLY makes mention of mérule.

 

Now, a suspicious mind

might think that that is why the survey only found the two types of wet rot

fungi and no mérule.  BUT even if it's unusual, it is still possible because, as I said before, mérule doesn't tolerate draughts well. So if this house is open to the winds, there may well be none present, only the wet rot.

Btw, finding a serious infestation of dry rot normally demands no special skill.  'Cos it don't half smell.  So wherever there is the still air that it needs, its smell tends to linger.

[ross.e]

Ok Craig

thanks again for the clarification...

this is the latest from my notaire

The seller's notaire..so passed on to transmitted me that you know him(it) the report of written conclusions of the diagnostician indicating that he had spotted(located) diverse sorts of parasites but that the building was not affected by a mérule.

In conclusion, the condition precedent of absence of mérule does not work and does not allow you to go out of the compromise.

If you persist in your intention not to settle the sale, the sellers can decide to continue you in execution of a writ of the sale or at least to ask you for 10 % of the price(prize) as penalty clause.

Thank you to be willing to indicate to me if you decide to go buyer or if you persist in your refusal to settle the sale

you have suggested early that we might offer a low price...

at this point...um....I am feeling awfully naive....

how might we go about that...

the compromis...states that we owe the original amount?

I feel this will be my last question....OMG.. I hope so

thanks again

ross

[Chancer]

[quote user="alittlebitfrench"]I have to say this forum is quite novel in that people actually do help each other out without it becoming a contest to who offers the best advice.[/quote]

 

The closest you get to a pi55ing contest on here is a lady being more competent at DIY than a guy that claims to be better at sewing than her [:D]

[YCCMB]

Snarf! ?

[NormanH]

I have kept out of this given the far more expert advice given by ventodue.

However my gut feeling is that the seller is trying it on and the key word is CAN.

Yes he can try to make you forfeit the 10% and probably thinks that as a foreigner you won't dare to challenge this.

In my opinion (and it is only that) as long as you pay the small part of the bill that is due to the  Notaire you can hang on in and get most of the 10% back.

To make you pay either the full amount or to forfeit the 10% needs a court order which I doubt they will bother with.

It's a pity you paid a deposit at all. Many Notaires now accept just enough to cover their bill in just such as situation as this as I explained in another thread .

http://services.completefrance.com/forums/completefrance-forums/cs/forums/3287152/ShowPost.aspx

It's a buyers' market.

Remember though that many threats of legal action are just empty.

Your case is not cut and dried as all the discussion about 'merule' shows, so I feel that they are on shaky ground

However all of this is just my view and you must do as you feel.

[ventodue]

[quote user="ross.e"]  “The seller's notaire so passed on  …  that the building was not affected by a mérule.  In conclusion, the condition precedent of

absence of mérule does not work and

does not allow you to go out of the compromise.

If you persist in your intention not to settle the sale, the sellers can decide

to continue you in execution of a writ of the sale; or at least to ask you for

10% of the price as penalty clause. <snip>”

You have suggested early (sic) that we

might offer a low price...[/quote]

 

Not me, Ross - I’ve never suggested that.

And it’s difficult to see how you can.  What

would be your grounds?  That the house

has some wet rot?   Given all the rest, that seems mighty thin … 

 

And at this stage in the proceedings, the

vendor has very little incentive to accept a lower offer.  Because, as your Notaire has correctly, if

somewhat clumsily pointed out, the law is simple: either you pay the contracted

price, or you have to pay a penalty.

 

As to this penalty, well, it’s similar to liquidated

damages in British law.   You need to look at your compromis and see what you signed up to

in the event of you not completing the purchase.  By all means post it on here, if you wish.   But I think your Notaire has

already told you ..

 

How enforceable it is, and how it all works

in practice, I can’t say - that’s outside my knowledge or experience, I'm afraid.

[ross.e]

ok - all especially Craig - thank you very much

 

The main issue here seems to be our naivety, a complete lack of French language skills, tangled up with also having no idea about rots - wet or dry....but since my recent crash course (thanks again to all here)I am feeling rather stupid etc about the whole thing.

 

as some have pointed out here and in a number of internet sources there seems to be a rather heightened fear of dry rot that seems now to be more about selling chemicals than much else. we had the fear.

 

we do love the house - the forest on the doorstep...(perhaps a fungal source) : ) and the whole french thing....

 

so without wanting to seem too foolish and a time waster we have decided to complete the purchase.

 

"arghhhhh" - I hear you say - "what a tosser..."

and rightly so I would reply.

But without getting in to too much self loathing - I am glad you all were here to set me right and I thank the internet gods for providing resources of understanding and knowledge such as this forum - where although I was a newbie and completely unknown I was treated extremely well - welcomed and furnished with priceless knowledge.

 

So once again thank you

 

ross

ps - I hope you don't mind if I call again - I am sure to encounter many things I do not understand in my French journey ! 

[Debra]

I find that people worry a lot less about things like woodworm and rot in France than they do in the UK.  At the end of the day, these things can be treated.  If you like the property, go for it.  The only thing that would put me off would be termites.

Congratulations :)

[alittlebitfrench]

I agree with Debra. I kinda think you have done the right thing.

I would add that only having termites and British neighbours would put me off.