Error in the surface area of a property: how to react and within what timeframe?
When selling a property subject to the status of co-ownership, it may happen that the seller forgets or makes a mistake in calculating the surface area of the property.
In such a case, given the price of the property, the new buyer has the right to ask for the cancellation of the sale or the restitution of part of the price.
Beware, these actions are strictly regulated and the seller also has means of defense.
The obligation of the seller of a co-ownership lot
The seller of a condominium lot must mention in the deed of sale the surface area of the private portion of this lot.
This is what emerges from the public policy provisions of article 46 of the law of July 10, 1965, resulting from the law known as the “Carrez Act”:
“Any unilateral promise of sale or purchase, any contract carrying out or acknowledging the sale of a lot or a fraction of a lot mentions the area of the private part of this lot or fraction of a lot (…)”.
The calculation of this private area excludes :
- Premises with a height of less than 1.80 meters.
- Balconies, terraces and surfaces occupied by walls, partitions and stairwells, ducts, doorways and windows.
The aforementioned article also excludes cellars, garages, parking spaces and lots with a surface area of less than 8m² unless the property is constituted by the combination of several lots (Court of Cassation, 3rd civil chamber, n° 03-21.004).
The action for nullity of the sale
In case of omission of the mention of any surface, the new purchaser can ask for the nullity of the act “at the latest at the expiration of a period of one month as from the notarial act recording the realization of the sale”.
This is a very short period of time, it being specified that the purchaser is deprived of his right of action for nullity if the oversight was regularized at the stage of the signature of the final act of sale.
The action to reduce the price
It is highly recommended to entrust the calculation of the surface area to a professional because if the real surface area of the property is less than one twentieth of that expressed in the deed (5%), the buyer is entitled to ask for a reduction of the price proportional to the lesser measure.
Here again, the time limit to act is relatively short: one year from the notarized deed recording the completion of the sale on pain of forfeiture.
The seller’s defense
It appears from the jurisprudence that :
- The restitution of the amount of the price reduction does not in itself constitute a compensable loss.
“The restitution of the amount of the price reduction is a specific obligation of the seller which does not constitute for him a compensable prejudice which authorizes him to ask for the guarantee to the professional having carried out the measures. In fact, it is the restitution of a sum unduly received by the seller for the delivery of a surface area less than that announced. (Tribunal de grande instance de Toulouse, 1st civil chamber, June 18, 2008, n°05/03197)
- The seller may claim prejudice related to the loss of a chance to negotiate the transaction at the same price despite the indication of an inaccurate measurement. (Montpellier Court of Appeal, Civil Division 1, December 8, 2011, n° 10/07110)
Given this defense, it is important for the buyer to be assisted by a lawyer in order to determine whether it is appropriate to take action and to develop an effective strategy if necessary.
The particular case of individual houses and sales in the state of future completion
The measurement according to the Carrez Act does not apply to single-family homes or to sales in the state of future completion (VEFA). However, the purchaser retains the possibility to act on the basis of the common law of contracts.
Articles 1616 and following of the Civil Code provide that :
- If the price has been determined according to the surface area, the seller is obliged to deliver the quantity indicated in the contract if the buyer so requires.
- If the sale was made for a global price, the buyer is entitled to a proportional reduction of the price if the area is less than that agreed upon by at least one twentieth.
The time limit for action is also one year from the date of the contract on pain of forfeiture (article 1622 of the same Code).
This second solution is contested by the doctrine as being contrary to the spirit of the law of the protected sector, because it amounts to granting the seller a margin of tolerance of 5%, unless a particular clause is more restrictive.
As articles 1616 and subsequent of the Civil Code are not of public order, it is in fact possible to derogate from them by introducing a clause guaranteeing or not guaranteeing the content. Beware, this last clause is not valid between all parties and has a limited scope.
Finally, the buyer of a house or a house in the state of future completion (VEFA) keeps the possibility of acting on the ground of the defect of the consent if he is able to prove that the exact content was in his eyes a determining quality for him.
In order to anticipate difficulties or to help you overcome them, we invite you to make an appointment with one of our lawyers experts in real estate law in order to verify the effectiveness of your deeds, to accompany you in the framework of amicable negotiations with your co-contractor and/or to assist you before the Courts. Our lawyers are at your disposal to answer all your questions and advise you. Our meetings can be held in person or by videoconference. You can make an appointment directly online at www.agn-avocats.com.
AGN AVOCATS – Real Estate Department
09 72 34 24 72