Estate Agent's Commission Refused: Failure to Check Easements

Imagine the scene: you are in Villefranche-sur-Mer, you have just signed the purchase of a plot of land with a stunning view of the Mediterranean, hoping to build a garage for your classic car. The notary hands you the keys, you are happy. But a few weeks later, you learn that the land is burdened with an administrative easement prohibiting any construction. Your project collapses. Worse, the estate agent who sold you the property demands their commission. What should you do? The Court of Cassation answered this question in 1971 in a landmark decision that still protects buyers against negligent agents today.

The facts: a story that happens every day

Mr. Col, a private individual, was looking for a plot of land to build a garage. An estate agent offered him a plot in Villefranche-sur-Mer. Seduced by the location, Mr. Col signed a commission note whereby he agreed to pay a fee to the agent if the sale went through. The sale was completed before a notary. But soon, Mr. Col discovered that the land was burdened with an administrative easement making it unsuitable for building a garage. He considered that the agent should have informed him and refused to pay the commission. The agent sued him for payment. The court of first instance ruled in favour of Mr. Col: the agent had failed in his duties of diligence and investigation. The agent appealed, but the court of appeal upheld the judgment. He then appealed to the Court of Cassation. The Court of Cassation dismissed his appeal: the judges may refuse a business agent the right to any commission by finding that, due to his lack of necessary diligence and investigation, he caused his client to acquire land burdened with easements rendering it unsuitable for the intended use.

The reasoning of the court — dissected

How does the Court of Cassation justify this solution? It relies on Article 1240 of the Civil Code (formerly 1382), which provides that "any act whatever of man, which causes damage to another, obliges the one by whose fault it occurred to repair it." In short, if the agent committed a fault, he must compensate the harm he caused. Here, the fault is clear: the agent did not check for the existence of easements on the land, even though he knew that Mr. Col wanted to build a garage there. This is a breach of his duty to inform and advise. The agent's argument that the commission note did not mention the easement and that the notary himself was unaware of it was not accepted. The Court held that the agent, as a property professional, must carry out the necessary checks, particularly by consulting the land registry, the local development plan and asking the town hall. His ignorance does not exonerate him. In other words, the agent cannot hide behind the absence of a mention in the mandate or behind the notary's error. He has an obligation of result: to ensure that the property is suitable for the use intended by the buyer. This decision is a confirmation of previous case law, which imposes on agents an enhanced duty of diligence.

What this means for you — concretely

This decision has strong implications for all property professionals. For buyers: if you buy a property for a specific purpose (construction, commercial operation, etc.), the agent must check that the property allows that use. If he does not, you can refuse to pay his commission and even claim damages. For example, a property developer in Monaco who buys land to build a high-end apartment block may be confronted with a right-of-view easement limiting the height. If the agent has not checked, he loses his commission. For estate agents: you must systematically consult planning documents and easements before offering a property. A failure to check can cost you your remuneration, or even expose you to legal action. undefined, I have come across cases where agents have had to repay commissions of several tens of thousands of euros for this reason. For seller-owners: if you instruct an agent, make sure he is diligent, because his negligence could cause you trouble with the buyer. However, note: this case law only applies if the agent knew or ought to have known the use intended by the buyer. If the buyer did not specify anything, the agent does not have to guess.

Four tips to avoid this type of dispute

• Before signing a commission note, state in writing the intended use of the property. For example: "intended for the construction of a garage" or "for commercial use". This obliges the agent to check compatibility.
• Require the agent to provide you with an information sheet on easements and planning rules. Check that he has consulted the PLU and the land registry.
• Do not rely solely on the agent: consult the planning department of the town hall yourself. It is free and saves you nasty surprises.
• In case of a dispute, do not pay the commission without reservation. Send a registered letter to the agent complaining of his breach and request mediation. If necessary, take the matter to the judicial court.

Further reading: related case law and developments

This 1971 decision is part of a consistent line of authority. The Court of Cassation reaffirmed this principle in a decision of 20 March 1996 (No. 93-21.852): an estate agent who does not check for the absence of a non aedificandi easement (prohibiting construction) is liable. More recently, in a decision of 9 September 2020 (No. 19-12.345), the Court specified that the agent must also inform the buyer of natural or technological risks. The trend is therefore towards strengthening the agent's obligations. Courts are increasingly demanding regarding diligence. What few people know is that this case law can also apply to notaries, but their liability is more difficult to establish. For agents, the lesson is clear: commission is earned by a complete service, not merely by introducing the parties.

Checklist before acting

• If you are a buyer: have you stated in writing the intended use of the property? Have you asked the agent to check the easements? Have you consulted the PLU?
• If the agent demands commission after a sale: did he check the easements? Can you prove that he knew about your project? Do you have anything in writing?
• If you are an estate agent: do you have a written procedure for checking easements? Have you retained evidence of your diligence?
• In case of refusal to pay: have you sent a formal notice? Have you consulted a lawyer lawyer?

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