Unpublished suspensive condition: not enforceable against third parties according to the Court of Cassation

Imagine: you are buying a flat in Bobigny, subject to a suspensive condition of obtaining a loan. You obtain your credit, sign a deed confirming the fulfilment of the condition, but this deed is not registered with the land registry. Later, the seller resells the property to a third party, who becomes the owner. Who is the true owner? This question is asked by hundreds of owners each year. The Court of Cassation, in a judgment of 13 July 2011, ruled: the deed confirming the fulfilment of a suspensive condition does not need to be registered. And above all, its failure to be registered does not render it unenforceable against third parties. But what exactly does that change? Let's break it down.

The facts: a story that happens every day

Mr. X, an owner in Bobigny, sells a plot of land to Mr. Y. The sale is concluded under a suspensive condition: Mr. Y must obtain a planning permission within six months. On 15 March 2005, the permission is granted. A notarial deed confirms the fulfilment of the suspensive condition. But this deed is not registered at the land registry (now the land publicity service). A few months later, Mr. X, who has not been paid, resells the same property to Mr. Z, a buyer from Boulogne-Billancourt. Mr. Z registers his deed of sale. Who is the owner? Mr. Y, who has the first contract, or Mr. Z, who has registered his?

The case comes before the Tribunal de grande instance of Bobigny, then before the Paris Court of Appeal. Mr. Y argues that his deed confirming the fulfilment of the suspensive condition did not need to be registered to be enforceable against third parties, because the decree of 4 January 1955 does not require it. Mr. Z retorts that, for lack of registration, Mr. Y's deed is unenforceable against him. The Court of Appeal rules in favour of Mr. Z. Mr. Y appeals to the Court of Cassation.

The reasoning of the court — dissected

The Court of Cassation quashes the appeal judgment. It recalls that Article 28(1) of Decree No. 55-22 of 4 January 1955 lists the deeds that must be registered to be enforceable against third parties. However, this article does not mention the deed confirming the fulfilment of a suspensive condition. Consequently, in accordance with Article 30 of the same decree, the failure to register such a deed does not result in its unenforceability against third parties. In short, a deed that is not subject to registration does not need to be registered to be enforceable.

Why this distinction? Because land registration aims to inform third parties of real property rights (ownership, mortgages, easements). The suspensive condition is an ancillary element of the sale; its fulfilment does not create a new right, it makes the sale definitive. Therefore, the deed that confirms it does not need to be registered. However, be careful: the deed of sale itself, containing the suspensive condition, must be registered. What few people know is that the Court of Cassation here confirms a consistent solution: only the deeds listed in Article 28 must be registered on pain of unenforceability.

The judges rejected Mr. Z's argument that the deed confirming the fulfilment of the condition would be a deed transferring ownership. No, they say: ownership is transferred by the deed of sale, subject to a suspensive condition. The fulfilment of the condition retroacts to the date of the sale. Therefore, no new transfer.

What this changes for you — concretely

For a seller-owner: if you sell subject to a suspensive condition, ensure that the initial deed of sale is properly registered. The deed confirming the fulfilment of the condition can remain in your files without registration. But beware: if the buyer does not register his deed of sale, you could resell the property to someone else, as in the above case. undefined, I have encountered cases where ill-informed sellers resold a property after the condition was lifted, thinking that the unregistered deed was worthless. Mistake: the initial deed of sale must be registered to be enforceable.

For a buyer: you must require your notary to register the deed of sale (containing the suspensive condition) as soon as it is signed. Once the credit is obtained, the deed confirming the fulfilment of the condition does not need to be registered, but it is prudent to do so to avoid any dispute. If you are in Boulogne-Billancourt and you buy a property worth €300,000, the registration fees are about 0.10% of the price, i.e., €300. That is a small amount to secure your ownership.

For a notary or real estate professional: this decision confirms that you are not required to register the deed confirming the fulfilment of a suspensive condition. But you must always register the initial deed of sale. In case of doubt, register everything: an excess of registration is better than a lack.

Four tips to avoid this type of dispute

• Have the deed of sale registered immediately upon signature: even if the suspensive condition has not yet been fulfilled, the deed must be registered to be enforceable against third parties. Without registration, you risk losing your right.
• Keep the deed confirming the fulfilment of the condition: even if it does not need to be registered, keep it safely. In case of dispute, it proves that the condition has been lifted.
• Check that your notary has indeed registered the deed: ask him for a copy of the registration certificate. In Bobigny, registration times are about 2 to 3 months. Do not release payment until you have this certificate.
• If reselling, consult the land register: before buying, check that the seller is indeed the owner. If the previous deed of sale is not registered, the seller might not be the true owner.

Further reading: related case law and developments

This decision is part of consistent case law. Already, in a judgment of 12 May 2004 (No. 02-17.056), the Court of Cassation had held that the deed confirming the fulfilment of a suspensive condition was not subject to registration. The 2011 decision merely confirms this solution. On the other hand, the Court recently recalled that the deed of sale containing the suspensive condition must be registered (Cass. 3rd Civ., 7 March 2019, No. 17-31.517).

The trend is therefore clear: land registration is mandatory for deeds transferring ownership, but not for deeds that merely confirm an ancillary event. This simplifies life for notaries and buyers. However, be wary of suspensive conditions that are not stipulated in the deed of sale but in a separate deed: in that case, that separate deed might need to be registered if it modifies real rights.

Checklist before acting

1. Have you signed a deed of sale subject to a suspensive condition? Yes → have it registered without delay. No → go to step 2.
2. Has the suspensive condition been fulfilled? Yes → have a deed confirming the fulfilment drawn up. No need to register it, but keep it.
3. Has the seller registered his own acquisition deed? Check at the land registry (formerly the mortgage registry). In the Paris region, delays are about 3 months.
4. Are you uncertain about the enforceability of your right? Consult a lawyer specialized in property law. A 30-minute consultation can save you years of litigation.

In a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of litigation — and often much more. Book an appointment →