Notary and Certificate of Conformity: an Omission that Costs Dear

You have signed a preliminary contract for the sale of a house in Saint-Junien. The seller assures you that everything is in order, but he does not have the famous certificate of conformity. The notary drafts the deed mentioning that you are informed and that you waive the seller's obligation to obtain it. You sign, confident. A few months later, the town hall refuses you a building permit for an extension: the existing construction is not compliant. What to do? This question is asked by dozens of purchasers every year. The decision of 17 June 2015 of the Court of Cassation provides a clear answer: the notary who merely includes a waiver clause, without explaining the risks, fails in his duty to advise. And this can cost him dear.

The facts: a story that happens every day

Mr X, owner in Guéret, sells his house to Mr Y. The deed of sale specifies that the purchaser is informed of the absence of a certificate of conformity and that he waives the seller's obligation to obtain it. Mr Y signs. But later, he discovers that the house has undeclared works, and the town hall refuses to issue a retrospective certificate of conformity. Result: Mr Y cannot sell the property under good conditions, and his bank refuses him a loan to buy another property. He sues the notary for liability. The High Court of Limoges dismisses his claim, considering that the waiver clause was clear. But the Court of Appeal of Limoges reverses: the notary did not sufficiently inform the purchaser of the consequences. The notary appeals to the Court of Cassation. The High Court upholds the appeal judgment: the notary failed in his duty to advise.

The reasoning of the court — dissected

The Court of Cassation 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 repair it. In short: if a professional makes an error, he must compensate the victim. Here, the notary is a public officer bound by a reinforced duty to advise. He must enlighten the parties on the scope of the deeds he prepares. However, in this case, the waiver clause is not sufficient. The judges consider that it does not appear from the provisions of the notarial deed that the purchaser had been clearly informed of the implications of a refusal to issue the certificate of conformity and of the risk he undertook to bear. This decision confirms constant case law: the notary cannot hide behind a standard clause to escape liability. He must tailor his information to the specific situation. The notary's arguments (the purchaser was aware, he had waived) did not convince the Court, because a waiver can only be valid if it is informed.

What this changes for you — concretely

If you are a purchaser: never sign a deed of sale without the notary having explained to you in writing the risks linked to the absence of a certificate of conformity (impossibility to sell, refusal of a loan, obligation to demolish...). If the notary merely uses a standard clause, you can hold him liable. Example with figures: in Guéret, a purchaser obtained €25,000 in damages after having to carry out unforeseen compliance works. If you are a seller: know that the waiver does not fully protect you. The purchaser can bring a claim against you for latent defects if the defects were serious. It is better to regularise the situation before the sale. If you are a notary: this decision requires you to draft precise clauses, detailing the legal and financial consequences. A simple mention "the purchaser declares that he is informed" is no longer sufficient. You must prove that the information was given and understood (for example, by a specific paragraph in the deed, or an annexed document signed by the parties).

Four tips to avoid this type of dispute

• Before signing, demand an information note from the notary: ask him to draft a separate document listing the consequences of the absence of a certificate of conformity, and have it initialled by all parties.
• Check with the town hall: before buying, consult the town planning department to find out if works have been declared. A simple phone call can save you years of litigation.
• Never accept a waiver without an explanation: if the notary says "it's a standard clause", insist that he detail the risks. If he refuses, change notary.
• Keep all written exchanges: emails, letters, notes. In case of a dispute, they will prove what was or was not said.

Further analysis: related case law and developments

This decision is part of a line of judgments reinforcing the liability of notaries. For example, in a judgment of 4 November 2010 (No. 09-71.858), the Court of Cassation had already ruled that the notary must inform the purchaser of the risks of non-compliance of a building. More recently, the trend is towards a requirement for "personalised and complete" information, as recalled by a judgment of 13 February 2019 (No. 18-10.751). Courts no longer hesitate to condemn notaries who use standard clauses without adaptation. For the future, one can expect that judges will require genuine education in deeds, with concrete examples by type of property.

Checklist before taking action

• I have signed a deed with a waiver clause for the certificate of conformity: what to do? Gather the deed, all exchanges with the notary, and consult a lawyer specialised in property law. The limitation period is 5 years from the discovery of the damage.
• Can I still cancel the sale? If the defect of conformity is serious (unauthorised construction, risk of demolition), you can invoke fraud (by the seller) or mistake as to the essential qualities. But the action is more difficult after a few years.
• What amount can I claim? The damage corresponds to the difference between the price paid and the actual value of the property, plus the costs of bringing it into compliance, and sometimes moral damages. Courts award on average 10 to 30% of the purchase price.
• Should I sue only the notary or also the seller? Both, if possible. The seller can be sued for latent defects, the notary for breach of duty to advise. A joint action maximises your chances.

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