Vice caché is certainly known to many. I was wondering what experiences some of you may have made with strange passus in the French property scene because I have a case of vice caché from the sales of an apartment in Antibes.
The apartment I had sold in 2000 because I only had trouble with tenants. 2010, (6 months before the end of the duty liability) out of the blue a letter from a court was sent to me by a Hussier. I learned that the one who bought the apartment from me, plus the two following owners had been drawn by the principal owner of the building into a court battle for already 4 years.
I remember there was a water leak in the roof and the tenant was rightfully complaining. The responsibility for the repairs was clearly a duty of the former principal owner of the entire house (not by me). The repairs might not have been done properly, however the original dispute has increased to 50,000.00 due to reviewers and shysters.
In this vice caché operetta even notaries have drawn up contracts that no claims can be made, not even on the basis of vice caché. What is it in France for a legislation that notaries can draw up such contract even when the law says otherwise?
Of course I have no desire to play along in this circus and finance French lawyer and courts a comfortable life at the "crotte" d'azur. What opportunities are in France to describe to the court a clear list of evidence without a lawyer? One of the reviewers, an architect, even describes that the changes had taken place only about 4 years ago. This would indicate someone has manipulated after I have sold the apartment. So why then insists the court at all to pull me into these quarrels? Is the jurisdiction of the judiciary in France an instrument of self-enrichment and not to find out the truth?
Yes David, it all is melting down to create business. But imagine those, who are buying in France to invest & then getting stuck with such circus.
Fabienne no, its not arranging deckchairs on the Titanic... and after looking the day trough precedent cases I've found French jurisprudence is at least as strange as German. Surprisingly it is certainly not due to the courts, even if niceties may be slightly seductive.
Thanxs Tim, PM send to your inbox.
Theo, sorry I did not understand that it was a "lettre d'humeur".
In respect of fees, yes and no. You can always "saisir le Bâtonnier" if you are not happy with the fees that an avocat requests, but of course, the bâtonnier is also an avocat...so there is a regulating body. Whether it works well is another question...
As to the length of the proceedings, you are unfortunately right. French civil procedural law provides that "le procès est l'affaire des parties" and Judges are sometimes too "nice" with lawyers who do not hand in quickly their pleadings and accept to report again and again a case which should have already been heard. Is it because they already have too many cases in reserve of Judgement ? Well, one could argue that you are lucky in a way. You are "only" involved "malgré vous" in a civil case. Criminal cases are even worse ...surprisingly for the "Pays des droits de homme".
Hi Theo,
Firstly, without all the information and sight of the documents you have been served, it is impossible to advise you properly. Without going into the complexities of it here are a couple of points worth understanding.
You say this case is at "a small tribunal". If it is the Tribunal d'Instance then firstly you can absolutely defend yourself without an Avocat or get anyone to represent you, and secondly the sum involved must be less than 10,000 euros.
Secondly, the law that governs this is mainly the Code Civil and in particular Articles 1641 to 1649. Article 1647 clearly says:
"Si la chose qui avait des vices a péri par suite de sa mauvaise qualité, la perte est pour le vendeur, qui sera tenu envers l'acheteur à la restitution du prix et aux autres dédommagements expliqués dans les deux articles précédents.
Mais la perte arrivée par cas fortuit sera pour le compte de l'acheteur."
And in this case anyway, from what you have said there have been three vendors since you?
Also, depending entirely on your purchase contract it sound to me as if this was owned in co-propriété. Is that correct? because it will make a huge difference. It is perfectly possible that you are not liable at all.
If I can help more, take a look at my profile and contact me if you feel it appropriate.
Good luck anyway.
Theo I have never been involved in this type of situation in France- but as a professional architect who had his own firm in the Uk one often carried personal liabiulity for projects even if the owner had sold the finished building, the builder had disappeared or gone bankrupt and ditto specialist suppliers. This often seemed to go beyond what could have reasonably be expected of an architect during say weekly site visits. This was often before the days of design and build and if an architect is not involved in site visists, or certifying work, then the ultimate user's protection is inevitably much less. You can at a premium insure buildings against defects but of course that adds to the price. As an architect one was often the last in the firing line, and the knowledge that you had professional indemnity insurance was crucial. In your case surely the people advising on the original deal should have explained any long term liability to you. I believe that in buying a second hand car in France you can demand retribution if something goes wrong. That usually does not apply in the UK and now if buying a second hand car off a dealer you have to pay extra for a guarantee which is provided by an independent insurance company.
Fabienne, thanx for your straight forward input! Yes I know at the TGI, but this is a case at a small tribunal.
What bothers me is the fact that in France is no binding regulation lawyers' fees, means it is then impossible to verify the legitimacy of demands made by the lawyer and it is up to him how long he wants to pull this whole affair into an unpredictable length. It is is not the purpose of investments to feed lawyers. For what and why all the technical surveys that had been made by architects on court order only to then ignored? This all looks very odd!
Hi. Unfortunately, I believe that an avocat is compulsory before the TGI (Tribunal de Grande Instance) and that you cannot represent yourself directly in a civil matter, so if you do not want to take any risk of a decision taken by default against you ("les absents ont toujours tort") you should appoint someone. The cheapest option could be to call the local "ordre des avocats" to get names of newly qualified lawyers who are (still) reasonnable in their fees or an avocat who is already in the case and with whom there is no conflict of interest. In a suit like this one, each buyer can only sue their own seller on the basis of the contract, this is probably why you have been dragged into this mess.Bon courage. This must be a very unplaisant experience.
hi theo,
you reach me on mobile 06 73 47 52 29 or by mail at dperot@anteac.fr
best regards
dom
Excellent reply Dominique.
Thank you very much Dominic.
may I contact you via your Anteac, looks like I'll have to provide these evidence that
- I was not aware of such demage (as mentioned above, it where repair work for what the pricipal owner was responsible
- that after there were 3 more owner of the property and the statement of the architect who did the survey on court order states clearly the "works" had been done aprox 4 to 5 years ago. So then there must have been changes long after my ownership, that are not being considered by the court.
Hi,
I am Loss Adjuster/Loss Assessor (Paris area), and from time to time have request from customers for this kind of "vice caché."
it is usuallay very difficult to prove. Because in your case, your oppenents have to prove
1) that you ware fully aware of the damage, and of its cause,
2) that you have intentionally hided it to them.
let's look from your side : to be discharged from this, you have to prove that it was public knowledge
(or near of) meaning for example that the subjet was discusssed in meetings of landlords of the property.
since this kind of subject is usually recorded into the report, it means that you were aware, but also that someone normally interested in the buying could have found it, if he requested from you to read former report of such meetings (in buying a condo, usually read the meetings reports of the 2-3 former years).
The magic bullet in your case would be that at the sign-up of the sale at the notaire desk, you (or the notary) would have clearly stated (and written into the papers sale) that there were a damage in progress/or not fully fixed. Thus you were aware but have hot attempted to hide it.
good luck and best regards
Dominique Perot
www.anteac.fr
Yes, Nick, but don't laugh: roughly 50.000 Euro for "truce-finding", while to fix the roof was estimated 2500 Euro. The problem is, the current principal owner inherited the main-property (incl the attic) from his aunt. So there are not records of the works she had ordered. She is dead, but her sister confirmed that she had ordered the works. All was done on the black! And if witness, her 84 years old sister is dead, nobody knows anything anymore and the trail can go on and on forever.
This is why I want to solve the issue myself without being drawn into it and relying on a French lawyer whom I will have to beg all the time to provide me with information about the progress being made, - have only a legal expenses insurance contract with a German insurance and as I raised the question if they would cover the costs they asked laughing "if I have lost my sense for realities on how French courts are dragging cases into an unpredictable lengths..."
As a totally side issue Theo, but a pertinent point. Has anybody asked the question as to how much has already been spent on legal fees so far versus how much it would have cost to fix the roof in the first place?
Thanks Nick, I sold through an agency, and at this time if I remember correctly, was no need for a technical report by an surveyor, just termites and such things. During my ownership the roof have had a leak. The house owner of the entire building was responsible because she owned the roof and the loft under which was my apartment. I have had trouble because my tenant complaint. Now, 20 years after these repairs had taken place, they want to draw me into all this circus.
I would be happy to drag the whole case to Luxembourg because it looks like a misuse of the protective sense of the "vice cachée", so at the same time such move will then also disclose all the thousands other cheatings where foreigners are being drawn in and French courts obivously have difficulties to detect objectively. Even lawyers have apparently intentionally made contradictory statements about the whole matter to drag it on. We call this deliberate "process carryover" in Germany which is prohibited (French and German law are both based on Franco Roman Law not like Anglo American law) where it is obligatory to proof the accusation.
that's my understanding on the situation in France too. Only property professionals are concerned, everyone else sells the property "sold as seen" "dans l'état"
Hi Theo. not exactly my field although I am a Chartered Surveyor here in France and I could put you in touch with property and construction experts who specialise in this problem if you should so require.
Second, from what I understand, and I may be wrong, but a fundamental for a “vice cachée” claim to have any mileage is that the vendor (yourself I take it) has to be a property professional in the first place.
If not you are simply a Joe Bloggs and not expected to know about these things. That is one of the reasons properties are sold in France “As seen”.
However if I were you, I’d take further advice from someone specialising in estate agency.