Newsletter n° 12 – Real estate law
Summary
LEGISLATION
COMMUNICATION OF DOCUMENTS AND VISIT OF A PROPERTY BY THE HOLDER OF THE URBAN PRE-EMPTION RIGHT
Decrees of December 22, 2014
JURISPRUDENCE
… of December 10, 2014
Real estate agent – Register of mandates
… of January 15, 2015
The holder of the action for nullity of the acceptance of the offer to sell
… of December 16, 2014
The mere presence of asbestos is not a latent defect
… of January 14, 2015
Commercial lease – Time limit for the right of option
… of December 17, 2014
Request for cancellation of an act amending the descriptive statement of division and the co-ownership regulations
… of January 14, 2015
Basis of the liability of the syndicate of co-owners
LEGISLATION
Communication of documents and visit of the property by the holder of the urban pre-emption right
The provisions of the Town Planning Code relating to the urban pre-emption right were amended by law no. 2014-366 of March 24, 2014 (Alur law).
As such, Article L.213-2 paragraph 1 now grants the holder of the right of pre-emption the possibility of sending the owner a single request for communication of the documents enabling the consistency and condition of the product to be assessed. building, as well as, where applicable, the social, financial and property situation of the real estate civil society. Similarly, paragraph 6 of the same article provides that "the holder of the right of first refusal may request to visit the property under conditions set by decree". On December 22, 2014, two decrees were issued for the application of these provisions.
These two decrees apply to visit requests notified by the holder of the right of pre-emption to the owners, who have filed a declaration of intention to alienate as of January 1, 2015. Communication of documents Decree no. 2014-15721 determines the list of documents likely to be requested from the owner of a building.
The holder of the right of first refusal may in particular request the communication of the following documents:
- the technical diagnostic file
- the indication of the surface area of the premises or, if there is one, the measurement carried out by a professional;
- extracts from the preliminary sales contract containing the significant elements relating to the consistency and condition of the building;
provided that they are mentioned in the prior declaration:
– the agreement or the lease constituting real rights and, if they exist, its appendices, in particular the plans and inventory of fixtures;
– the agreement or the lease constituting personal rights and, if they exist, its appendices, in particular the plans and inventory of fixtures;
- provided that it is mentioned in the prior declaration and that it has been published in the land registry, the deed constituting the easement and, if they exist, its annexes, in particular the plans and inventory of fixtures;
- the updated statutes of the civil real estate company whose shares are transferred;
- the books and documents established for the last closed financial year mentioned in article 1855 of the civil code;
- the accountability report drawn up for the last closed financial year mentioned in article 1856 of the civil code;
- in the absence of the documents mentioned in the two preceding paragraphs, a statement certified by the manager establishing the composition of the assets as well as the liabilities of the real estate company and specifying the profit for the last closed financial year.
Visit of the property
Decree No. 2014-1573 sets the conditions for inspection of the property by the holder of the right of pre-emption 2.
Visit request
The visit request must be notified in writing to the owner or his representative as well as to the notary (Art. D. 213-13-1 of the Town Planning Code).
The request must specify:
- the references of the prior declaration;
- the provisions of article L. 213-2 of the Town Planning Code and those of articles D. 213-13-2 and D. 213-13-3 of the same code, in visible characters;
- the name and contact details of the person(s) that the owner, his representative or the notary can contact to determine the terms of the visit;
- that the visit must be made in the presence of the owner or his representative and the holder of the right of first refusal or the person authorized by the latter.
1 Decree no. 2014-1572 of December 22, 2014 setting the list of documents likely to be requested from the owner of a building by the holder of the right of first refusal pursuant to Article L. 213-2 of the Town Planning Code
2 Decree No. 2014-1573 of December 22, 2014 setting the conditions for inspection of the property by the holder of the right of first refusal pursuant to Article L. 213-2 of the Town Planning Code
Acceptance of the visit
Acceptance must be made in writing within eight days from the date of receipt of the visit request (Art. D.213-13-2 of the Town Planning Code).
If the visit is accepted, the owner, his representative or the notary must inform the occupants of the building. Refusal to visit The owner may refuse to visit the property (Art. D.213-13-3 of the Town Planning Code). The refusal must then be notified within eight days from the date of receipt of the visit request. In the absence of a response within this period, the refusal is tacit.
Terms of visit
The visit must take place within fifteen calendar days of receipt of acceptance of the visit, excluding Saturdays, Sundays and public holidays.
The absence of a visit within the time limit is worth either refusal of the visit or waiver of it. During the visit, a contradictory report must be drawn up and signed by the owner or his representative and by the holder of the right of first refusal or a person authorized by him. The statement must mention the date of the visit, the names and qualities of the persons present.
JURISPRUDENCE
Real estate agent – Register of mandates
1st Civil.
December 10, 2014 (n°13-24.352) F-PB: The use of two separate registers, one for sales mandates and the other for search mandates, does not comply with article 72 of decree no. 72-678 of July 20, 1972, under which mandates must appear in a single register.
Failure to comply with this provision is sanctioned by the nullity of the mandate.
The seller: holder of the action for nullity of the acceptance of the offer to sell
1st Civil. January 15, 2015 (n°14-11.019) FS-PB:
A leave to sell is issued to a tenant.
A promise to sell is then granted at a more advantageous price to two prospective buyers. In accordance with the provisions of article 15 II of the law n°89-462 of July 6, 1989, the notary notifies a second offer of sale to the tenant who accepts. While the deadline for completion of the sale was prescribed, the notary instruments the sale for the benefit of the tenant. Prospective buyers who consider themselves victims of fraud in their rights summon the notary in particular to obtain payment of damages. In support of their claim, they invoke the nullity of right of the non-acceptance of the offer to sell as provided for by article 15 II paragraph 5 of the law of 1989. The Cour de cassation and the cour d appeal consider that only the lessor can invoke the nullity of the acceptance of the offer of sale enacted by article 15 II paragraph 5 of the law of 1989. Consequently, by instrumenting the deed of sale required by the lessor the notary has not breached any of his professional obligations towards the prospective buyers.
The mere presence of asbestos is not a hidden defect
3rd Civil. December 16, 2014 (n°13-17.469) FD:
In this case, the Court of Cassation recalls that the seller is only required to carry out and give to the buyers a diagnosis intended for the search for asbestos inside the building.
The Court then specifies that the mere presence of asbestos, without danger, in materials in good condition does not make the building unfit for its intended purpose and is not considered as a latent defect giving rise to the right to redhibitory action. or estimate.
Commercial lease – Period for exercising the right of option
3rd Civil. January 14, 2015 (n°13-23.490) FS-PBI:
The decision fixing the price of the renewed lease is notified to the lessee on December 16, 2008. On February 13, 2009, the lessee notifies the lessor of the exercise of his option right.
The question then arises of knowing within what period the right of option can be exercised. The Court of Cassation recalls on the one hand that the notification of the decision of first instance fixing the rent causes both the option period and the appeal period to run. It also specifies that the Commercial Code does not provide for the double meaning of the decision fixing the amount of the rent for the renewed lease for the exercise of the right of option. Consequently, the exercise by the lessee company of its option right on February 13, 2009 is late.
Request for cancellation of an act amending the descriptive state of division and the rules of co-ownership
3rd Civil. December 17, 2014 (n°13-23.350) FS-PB:
Co-owners request the reinstatement of lots in the common parts of the building, the cancellation of the composition of one of the lots in the initial descriptive state as well as the cancellation of the modified descriptive state of division.
The request is declared inadmissible by the trial judges. The Court of Cassation confirms this decision. Indeed, according to the Court of Cassation, these requests, tending to pronounce the cancellation of real estate deeds or rights resulting from deeds published in the mortgage office are inadmissible for lack of publication of the assignments in the land registry.
Basis of the liability of the syndicate of co-owners
3rd Civil. January 14, 2015 (n°13-28.030) FS-PBI:
A syndicate of co-owners is ordered to guarantee one of the co-owners, lessor of the judgments pronounced against him tending to repair the damage caused by the carrying out of work in the common areas, having forced the lessee of commercial premises to interrupt his operation for several months.
According to the Court of Appeal, insofar as the lessor does not seek compensation for himself, the liability of the syndicate is based on article 1384 of the Civil Code and not on article 9 paragraph 4, of the law of July 10, 1965 under which the co-owner who suffers damage due to the execution of works of collective interest is entitled to compensation.
The Court of Cassation quashed the judgment on the grounds that the lessor was seeking compensation for personal damage resulting from his obligation to repair the problems suffered by his tenant, and that, with regard to work carried out by the syndicate and affecting its parties private, only the provisions of article 9, paragraph 4, of the law of July 10, 1965 were to apply.
