Notary's Duty to Advise: When Can the Landlord Hold Him Liable?

Imagine: you are the owner of a commercial premises in Le Mans, rue des Minimes. You sign a lease with a tenant who presents himself as a craftsman. Six months later, he tells you he was never a craftsman, that he acted on behalf of a company in formation. You want to cancel the lease, but the notary who drafted it tells you he verified nothing. Who is liable? This question is asked by hundreds of landlords every year. The decision of the Court of Cassation of 25 March 2010 (No. 09-12.294) provides a nuanced answer, protecting the drafter within certain limits. But beware: not everything is permitted.

The notary's (or bailiff's, in this case) duty to advise is a sensitive subject. They are expected to enlighten the parties on the scope of their commitments. But how far does this obligation go? The judges tell us: the professional must adapt to the purpose pursued by the parties and their particular requirements, but only if he has been informed of them. In other words, if you say nothing, he cannot guess.

The facts: a story that happens every day

We are in the Sarthe, near Mamers. The consorts Y, Z and A are owners of a commercial premises. In 2002, they grant a commercial lease to Mr. C, a professional in the relevant sector of activity. Simultaneously, the spouses B found an EURL (single-member limited liability company) to take over the lease. But the lease was drafted by a bailiff, who mentions Mr. C as tenant in his personal capacity. However, the spouses B consider that the lease should have been concluded in the name of their company in formation. They sue the bailiff for breach of his duty to advise.

Before the Court of Appeal, the spouses B succeed: the bailiff is ordered to compensate the damage. But the bailiff appeals to the Court of Cassation. He argues that he was not informed of the parties' intention to have the lease taken over by a company. The Court of Cassation agrees: the professional is not required to verify the factual statements of the parties, unless elements arouse his suspicions. Here, nothing suggested that Mr. C was acting on behalf of a third party. The judgment is quashed.

The reasoning of the court — analysed

The Court of Cassation relies on Article 1147 of the Civil Code (in its version prior to 2016), now Article 1231-1, which sets out the principle of contractual liability: every professional must perform his obligations in good faith, under penalty of damages. But it clarifies the content of the duty to advise of the drafter. According to the Court, this duty is assessed in concreto: one must look at the purpose pursued by the parties and their particular requirements, but only if the professional has been informed of them.

In this case, the bailiff had not been warned that Mr. C was acting on behalf of a company in formation. He could not therefore guess that the lease should have been drafted with a clause of assumption of obligations (a mechanism allowing a company in formation to take over acts concluded on its behalf). The Court adds that while the professional must gather the necessary supporting documents for his intervention, he is not required to verify the factual statements of the parties, unless objective elements arouse his suspicions. This is a confirmation of previous case law, not a reversal.

The spouses B argued that the bailiff should have inquired about the exact capacity of the tenant. But the Court considers that this is not his role: it is for the parties to inform him. This decision protects the drafter against an excessive obligation of policing statements. It is based on a logic of shared responsibility: everyone must provide the necessary information.

What this changes for you — concretely

Landlord: if you sign a commercial lease, you must clearly indicate to the notary or bailiff who the true tenant is. For example, if you are letting to a company director, specify that the lease is concluded with the company, not with the natural person. Failing this, you will not be able to take action against the drafter if a problem arises. Imagine a lease in Mamers for a bakery business: if the tenant turns out to be insolvent, you will have lost six months' rent (about €12,000 for a rent of €2,000/month).

Tenant: you must be transparent about your situation. If you create a company after signing, tell the drafter. An omission could prevent you from holding the professional accountable.

Drafter (notary, bailiff): this decision reassures you, but does not exempt you from advising. You must ask the parties about their intention and capacity. If you have any doubt, ask questions in writing. Keep a record of these exchanges.

In practice, if you are in a situation where the drafter was not informed, you will not be able to bring an action for liability. But if you informed him and he did not act accordingly, you can sue him. Beware: the limitation period for liability actions is 5 years from the discovery of the damage (Article 2224 of the Civil Code).

Four tips to avoid this type of dispute

• Inform the drafter in writing: before signing, send an email or letter specifying who the true tenant is, whether it is a company in formation, etc. Keep a copy.
• Have a substitution or assumption clause drafted: if the lease is signed by a natural person on behalf of a company in formation, ask for a clause providing for the assumption of obligations by the company after registration.
• Check the deed before signing: read the lease carefully. If your name is misspelled or the tenant's capacity is wrong, report it immediately.
• Consult a lawyer specialised in property law: before signing a commercial lease, a lawyer can advise you on the clauses to include and pitfalls to avoid. In Le Mans, Maître Zakine can help you.

Further reading: related case law and developments

This decision is in line with a consistent line of authority: the Court of Cassation had already held, in a judgment of 14 January 2003 (No. 00-22.040), that the notary is not required to verify the truthfulness of the parties' statements if nothing alerts him. On the other hand, if the professional is aware of an anomaly (e.g., a manifestly undervalued price), he must alert the parties. The 2010 decision confirms this approach and extends it to bailiffs.

Since then, case law has evolved on one point: the notary's duty to advise has been strengthened in tax and planning matters (Cass. 1ère civ., 6 July 2016, No. 15-21.417). But regarding the verification of factual statements, the position remains stable. For the future, expect the courts to require professionals to systematically ask the parties about their capacity and intention, but without going so far as intrusive verification.

Key points to remember

• Who is liable if the notary did not verify the statements? The notary is liable only if you informed him of the purpose pursued or your particular requirements, and he did not act accordingly.
• Can I cancel a lease if the tenant is not who I thought? Yes, if you demonstrate a mistake as to the identity of the co-contracting party (Article 1130 of the Civil Code). But you must prove that this mistake was excusable and decisive.
• What are the time limits for taking action against the drafter? 5 years from the discovery of the damage, but at most 20 years after the signing of the deed (the outer time limit under Article 2232 of the Civil Code).
• What should I do if I am in this situation? Gather all evidence of what you told the professional (emails, letters, witness statements). Consult a lawyer to assess your chances.

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