Notary: Duty to Inform and Advise All Parties to the Deed

Imagine: you own a commercial property in Chinon, and you sign a new lease drawn up by your notary. A few years later, your tenant tells you they are assigning the lease to a subsidiary. You then discover that the contract you signed contains an assignment clause you had not seen. What if the notary did their job poorly? This is exactly the scenario that played out before the French Supreme Court in 2007, with a conclusion that changes everything: the notary owes a duty to inform and advise all parties to the deed, not just the one who pays them. So, what does this decision mean for you, whether you are a landlord, tenant or buyer?

Who has never signed a notarial deed relying on the reputation of the ministerial officer? We often imagine that the notary is there to protect everyone. But the reality is more subtle. The decision of 15 May 2006 (appeal n° 06-15.318) serves as a reminder that this protection is a legal obligation, not mere courtesy. The notary must explain each clause, its consequences, and ensure that you understand what you are signing. If they fail in this duty, they incur liability.

In this article, we will dissect this decision, understand how it applies to concrete situations, and give you keys to avoid disputes. Whether you are in Tours or elsewhere, these rules apply to all notarial deeds in France.

The Facts: A Story That Happens Every Day

The case begins in Rennes, but it could just as easily take place in Tours or Chinon. A landlord (the lessor) grants a commercial lease of premises to a company (the lessee). The lease expires, and the parties decide to renew it. The landlord asks their notary – a SCP (civil professional company) of notaries – to draft a new lease. But the notary, instead of writing a new contract, merely renews the old lease, with a particular clause: the lessee can terminate every three years and, above all, assign the lease to one of its subsidiaries.

The landlord signs without realising that this assignment clause escapes them. Some time later, the tenant does indeed assign the lease to a subsidiary. The landlord challenges this, arguing that the notary should have informed them of this clause and its consequences. They sue the notary for professional civil liability.

The Rennes Court of Appeal, in a judgment of 14 March 2006, found in favour of the notary, considering that the duty to advise did not apply in this case. But the landlord appealed to the Supreme Court. The Supreme Court quashed the appeal judgment and remitted the case to the same Rennes Court of Appeal, differently composed. It held that the notary owes a duty to inform and advise to all parties to the deed, and that they should have drawn the landlord's attention to the assignment clause.

The Reasoning of the Court — Explained

The Supreme Court relies on Article 1240 of the Civil Code (formerly 1382), which provides that "any act of a person which causes damage to another obliges the person by whose fault it occurred to make reparation." In short, if a notary commits a fault in the exercise of their functions, they must compensate the person who suffers harm. Here, the fault is failing to inform the landlord of the scope of the assignment clause.

The decision is important because it confirms and clarifies consistent case law: the notary is not only the adviser of the party who pays them, but of all parties to the deed. They must verify that each signatory understands the terms of the contract, and alert them to potential risks. The Supreme Court emphasises that the notary, as a public officer, has a duty of neutrality and loyalty towards all.

This decision is not a reversal: it is part of a line of judgments that strengthen the liability of notaries. As early as 2004, the Court had held that the notary must enlighten the parties on the scope of clauses (Civ. 1re, 20 April 2004). But here it goes further by specifying that the duty applies even when the notary is instructed by only one party.

The notary's arguments? They argued that their client was the landlord, and that the lessee was represented by their own counsel. The Court rejected this defence: the notary cannot hide behind the presence of a lawyer to discharge their obligation. They must personally ensure that each party has understood the deed.

What This Changes for You — Practically

If you are a landlord in Tours, this decision protects you. Imagine you sign a commercial lease with a tenant, and the notary forgets to point out that the lessee can freely assign the lease. If the lessee assigns the lease to an insolvent company, you lose rent. Now, you can hold the notary liable for failure to inform. But be careful: you must prove that the loss is directly linked to the fault. For example, if you would have refused the clause had you known about it, you can claim damages.

For tenants, this is also a safeguard. If the seller's notary does not inform you of an easement or restriction, you can sue them. For example, a client in Chinon bought a business without knowing that an urban pre-emption right existed. The notary had not checked. The client obtained compensation.

For buyers, the time limit to act is 5 years from the discovery of the damage, but no more than 20 years after the deed. The amounts? It all depends on the loss. In a recent case, a notary was ordered to pay €50,000 to a landlord for not informing them of an easement. In Chinon, a similar dispute resulted in compensation of €15,000 for loss of property value.

Four Tips to Avoid This Type of Dispute

• Read the deed before signing, even if it is long. The notary is obliged to advise you, but you also have a duty of vigilance. Take time to ask questions about each clause.
• Request a draft deed in advance. Ask your notary to send you the draft a few days before signing. This allows you to read it calmly and consult a lawyer if needed.
• Check that the notary questions all parties. If you are a landlord, ask them if they have informed the lessee of their obligations. If you are a lessee, make sure they have explained the consequences of the lease.
• Keep all your correspondence. Emails, letters, handwritten notes: anything can be useful in case of a dispute. If the notary gave you oral advice, note it down and ask for written confirmation.

Further Study: Related Case Law and Developments

This decision is part of a broader movement towards greater accountability of notaries. In 2004, the Supreme Court already held that the notary must inform parties of the tax consequences of a deed (Civ. 1re, 20 April 2004). In 2010, it extended this duty to latent defects: the notary must report any apparent defect during the sale (Civ. 1re, 10 June 2010).

The trend is therefore towards expansion. The courts consider that the notary is a legal professional, paid to secure transactions. They cannot avoid their duty to advise. For the future, we can expect this duty to extend further, particularly in matters of property diagnoses or unfair terms.

If you are in litigation, know that the burden of proving the fault lies with the victim. But judges are often lenient with private individuals facing professionals. Do not hesitate to consult a lawyer to assess your chances.

Frequently Asked Questions

1. What should I do if I think my notary has failed in their duty to advise?
Gather all evidence (deed, correspondence, witness statements) and consult a lawyer specialising in property law. You can bring a claim for professional civil liability within 5 years from the discovery of the damage.

2. Can I ask for the deed to be annulled if the notary did not advise properly?
No, annulment is rare. You can obtain damages to compensate your loss, but the deed remains valid unless you prove a defect of consent (fraud, mistake).

3. What are the time limits for taking action against a notary?
You have 5 years from the day you discovered the damage, and at most 20 years after the deed. Beyond that, the action is time-barred.

4. Is the notary always liable if the other party had a lawyer?
Yes, the Supreme Court has clearly stated that the notary cannot rely on the presence of a lawyer to discharge their obligation. They must personally ensure that each party understands the deed.

5. Can a notary refuse to draft a deed if they believe the parties are not sufficiently informed?
Yes, the notary has the right and even the duty to refuse to lend their services if the deed is contrary to law or if the parties are unable to understand the consequences. This is an additional protection for you.

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