Liability of french Immo. and/or Uk property advisor ?

[Williec79]

We purchased our French property some 6 years ago using the services of a well-known UK French property advisor, which operates with (what we now know to be) independent « partner offices » as the local Immobiliers.

 

Entrance to our property is via another parcel of land owned by a neighbour, and we do have a written legal “droit de passage” through this piece of land.

 

Recently our neighbour, out of the blue, told my wife and me, that our entry gates, hedging etc are encroaching into his parcel of land by some 4 metres (with the overall area of this encroachment being only around 35 square metres). He also told us that a small extension to our house had been built with no permit de construire.

 

A visit to the local cadastral office only served to support our neighbour’s claims. The functionnaire did confirm that the area where the house extension has been built, is shown on the plan cadastral as an open area with crossed diagonal lines, & he advised that this signified an open area such as a grenier or hangar, and that that our neighbour was correct in saying that no permit de construire had ever been applied for or granted. The functionnaire also confirmed that our entry gates etc do encroach onto our neighbour’s land.

 

Whilst I understand that one does not expect an Immobilier to physically check the  ‘bornage’, in our particular case the discrepancy situation is perhaps slightly more obvious than the usual boundary discrepancies.

 

The land boundary on the plan cadastral runs from the end of the house itself, whereas the physical boundary runs from the end of the extension, which has been built on the end of the house.

 

It is my contention, that any competent Immobilier should have, on comparing the plan cadastral with the physical entities, spotted the two discrepancies.  The first being that ‘open area’ was in fact a ‘house extension’ and the second being the land boundary difference.

 

Only after my visit to the cadastral office, was I made aware of the differences between an‘open area’ and a ‘building’ in cadastral plans – but I am a lay person, not a professional.

 

The neighbour is being reasonable insofar as he only wishes the actual situation to be sorted legally, and he is NOT trying to sell us the piece of land. However, he is expecting us to pay for the cots of the géomètre and the notaire to have the situation regularized, (estimated to be around 500€ each for the géomètre and the notaire).

 

I have written detailed letters both to the “UK French property advisor” and to the French Immobilier. As one would expect, neither is taking responsibility.

 

I have a meeting with the notaire later this week to seek his advice.

 

Does anyone have any advice based on similar problems?

[Nick Trollope]

Sorry, but just how are you going to prove that either of the agents (or the Notaire) knew that there was a problem, especially after 6 years. Neither the agent nor the Notaire is responsible for local "searches" or checking the bornage - this is very much the responsibility of the buyer, using a Geometre if necessary.

If your neighbour wants a survey or the bornes, then it is his responsibility to pay for it. It would be reasonable and neighbourly for you to share this cost, but not stand the entire cost.

The other point is, what have you lost? You still have your rights of passage and your neighbour is unlikely to be able to remove those rights, even if he wanted to. To suceed in a French court, you will need a) a strong case, b) a proveable loss and c) pots of money (you will not get your costs back). Oh, and plenty of time (as in years).

Frankly, I'd talk to your neighbour, reach an amicable agreement and invite him/her round for a few drinks. Courts (especially French ones) rarely conclude anything to anyones satisfaction.

[suein56]

[quote user="Williec79"]

Recently our neighbour, out of the blue, told my wife and me, that our entry gates, hedging etc are encroaching into his parcel of land by some 4 metres (with the overall area of this encroachment being only around 35 square metres). He also told us that a small extension to our house had been built with no permit de construire.

 

A visit to the local cadastral office only served to support our neighbour’s claims.[/quote]

 

As land around us regularly fetches around 250 euros per sq mtr then your 35 sq mtrs would be worth not far short of  9000 euros here. So, IMHO, you will have a bargain if your fees will only be around 1000 euros to make your plot entirely legal. Count your chickens comes to mind.

 

Sue

[Ron Avery]

When we bought our place before we signed the compris at the Notaire's, all interested parties inspected and signed a map of the buildings and land for sale. All the plots were numbered and the Notaire marked the parcels to be divided and the areas for continued tenancy.  So I believe that one way of looking at this is that the Notaire has a responsibility for checking that what is for sale is owned by the seller, so the OP's visit to the Notaire is the best way forward.

If a deal can be done with the neighbour afterwards, then so much the better.  The bit about a building sans permit seems to have been glossed over and is now probably best left that way.

[Will]

As Nick says, in France the responsibility for searches etc rests with the buyer. If it has taken 6 years to come to light, I don't think there is much of a case. Anyway, the agent relies on information from the seller - if you have any argument it should be with the notaire handling the sale, though there again unless you specifically asked the notaire about this point, and you have written evidence to back it up, you won't have much come-back. You will have received a copy of the official plan as part of the compromis de vente that you signed, so you had the opportunity (and responsibility) to check and query it then.

It all boils down to the fact that this is France, and you cannot expect things to be the same as they may be in England.

[Chancer]

[quote user="Williec79"]

 

It is my contention, that any competent Immobilier should have, on comparing the plan cadastral with the physical entities, spotted the two discrepancies.  The first being that ‘open area’ was in fact a ‘house extension’ and the second being the land boundary difference.

 

Only after my visit to the cadastral office, was I made aware of the differences between an‘open area’ and a ‘building’ in cadastral plans – but I am a lay person, not a professional.

 

[/quote]

I dont mean to be critical or unsympathetic but the advice re: this is France and things work differently, is good advice.

I underlined the bits above as they touched a nerve with me because several times during my business life I recieved "opening barrage" letters containing the above phrasology, in most cases they were trying it on but as the wording was always similar it must have carried some weight in a court hearing.

One example was a client that would not accept my advice that his scheme would not work for his company in practical use and insisted that I follow his specification to the letter regardless of my opinion and experience, when the wheels fell off figuratively speaking out came the old phrase, "you were the professional and we relied on you (unpaid of course) for your recommendations" 

What I am trying to say is the above position or contention would perhaps be valid and powerful in England but is probably incomprehensible here except to those lawyers with a vested interest in prolonging any dispute. Have you ever hear the equivalent phrase to "duty of care" spoken in France?

Editted

With hindsight if your contract was with the English company and is still within the statute of limitations why not have a punt in an English court? Your position would therefore be a valid one perhaps.

[Deimos]

A bit of an aside but some "British Agents" operating in France are not true agents (i.e..not registered as such) and operate a split commission thing with a proper French agent.  Thus I would have no idea exactly what liability the "British agents" would have as they cannot be acting as true agents (not registered).  Some British agents in France are true proper registered Estate Agents but some (and some large famous ones) effectively operate as what I would call "Property Finders" working with one or more local proper French Agents.  If the company you purchased through was one such organisation I would expect any come back to be with the French Agent.  That said I have no idea about what (if any) comeback you might have and the other posters are far more knowledgeable in this regard.

Ian

[Gluestick]

If you indeed used an agent in the UK and if this agent earned some fee (as they would: no one normally runs a commercial operation for nothing!), then the agent has a clear duty of care to you and the other agent in France under the law of agency.

That said, the law of agency iunder English law is cumbersome and at times, contradictory.

At times, the agent's duty of care is more biased towards the fee payer (the French agent i.e.) rather than yourself.

Simple contracts under English law become Statute Barred after six years.

Perhaps worth consulting a UK solicitor who undertakes contentious litigation for claimants (Plaintifs as were) for an opinion. Be aware however, that obtention of such opinion may well incur counsel's costs, which are not cheap.

 

 

[Nick Trollope]

Was a contract made in the UK?

Or would the OP need to find a UK Solicitor who undertakes contentious litigation in a foreign court (after possible claims have been barred)?

I wonder ....

[Gluestick]

If the original discussion took place in the UK between the OP and the British agent, introducer whatever, Nick, then the contract of agency is in the UK: there would be yet another relationship in France, between the OP and the immobiliere, governed by French law.

Whilst statute limitation is six years for simple contract (three years for personal injury, medical negligence, etc), a potential claimant can ask the Court for leave to enter action after the six years has expired on the grounds that they were unaware of the existance of the problem during the six years.

 

[Ron Avery]

"Was a contract made in the UK?   Or would the OP need to find a UK Solicitor who undertakes contentious litigation in a foreign court (after possible claims have been barred)?  I wonder .... "

We will continue to wonder Nick until the OP comes back and tells us........  any sign.........  bonjour.........        hello[;-)]

[Alan Zoff]

I would keep a firm eye on the amount of money involved here against the potential costs of employing a legal adviser, not to mention the aggravation. It could be an expensive - and perhaps unlikely - "victory".

A free visit to the notaire would do no harm but, beyond that, for the sums mentioned, I would favour the "have the neighbour round for drinks" approach and try to negotiate the best deal you can between you without falling out.