Promise of Sale and Planning Permission: The Notary Cannot Wash Their Hands of It

Imagine: you sign a promise of sale for a plot of land in Olivet, in the Loiret. You dream of building your dream house there. The contract provides that the sale is conditional on obtaining planning permission. Reassuring, isn't it? Except that the notary leaves you to deal with the authorities yourself, without checking whether the Local Land Use Plan (POS) permits construction. Result: planning permission is refused, the sale falls through, but you have already spent money on surveys, architects' fees, and lost months. Who is liable?

For property owners and buyers, this question is crucial. Too often, people believe that the condition precedent (a future and uncertain event on which the sale depends) protects them in all circumstances. But the French Supreme Court, in a judgment of 21 February 1995, set the record straight: the notary cannot hide behind this condition to avoid their duty to advise.

This article explains, without jargon, what this decision actually means for you, whether you are a seller, a buyer, or simply curious. And if you are in Orléans or the Loiret, know that the local courts apply this rule strictly.

The Facts: A Story That Happens Every Day

In 1989, Mr and Mrs X, a couple from Orléans, wish to buy a building plot on the outskirts, in the commune of Olivet. They sign a promise of sale with the company Demeures franciliennes, a developer. The price is set at 200,000 francs (approx. 30,500 euros). The promise contains a standard condition precedent: the sale will only become final if the couple obtains planning permission for the house they plan to build.

The notary in charge of the deed merely drafts the promise and collects their fees. They do not check the Local Land Use Plan (POS) of Olivet, which classifies the plot as non-building land. No warning is given. The couple applies for planning permission, which is refused by the town hall due to planning rules. The sale is therefore cancelled, but the buyers have already paid a deposit, soil survey costs, and architects' fees totalling 15,000 francs.

They sue the notary for professional civil liability (i.e., holding them liable for breach of duties). The Tribunal de grande instance of Orléans finds in their favour in 1992, ordering the notary to pay 10,000 francs in damages. The notary appeals, but the Orléans Court of Appeal confirms the decision in 1993. The notary then appeals to the Supreme Court.

The Reasoning of the Court — Explained

The French Supreme Court, in its judgment of 21 February 1995, dismisses the notary's appeal. It relies on Article 1382 of the Civil Code (old, now Article 1240) which provides that "any act of man which causes damage to another obliges the person by whose fault it occurred to make reparation." In plain language: if you make a mistake that causes loss to someone, you must compensate them.

The notary argued that, since the sale was subject to a condition precedent (obtaining planning permission), they did not need to verify whether the land was buildable. "The parties left it to the authorities," they said. But the judges did not follow this argument. Why? Because the notary's duty to advise (the obligation to inform and secure the parties) is independent of the condition precedent. The notary must ensure the effectiveness of the deed in light of the purpose pursued by the parties: here, building a house.

The Court states: "It was for the notary to inquire about the possibility of building on such land in light of the applicable local land use plan and to warn the buyers of the consequences of a refusal of building permission." In other words, the notary cannot hide behind the condition precedent to avoid their obligation to verify the feasibility of the project. This is a confirmation of previous case law, not a reversal. The judges remind that the notary is a legal professional, bound by an obligation of result (to achieve a specific objective) on certain points, and by an obligation of means (to do everything possible) on others. Here, they failed in their duty to advise, which is a reinforced obligation of means.

This decision is important because it reminds that the condition precedent does not serve to absolve the notary. On the contrary, it reinforces their duty of vigilance, since the parties rely on them to secure the transaction.

What This Means for You — In Practice

If you are a buyer of a building plot, this decision gives you a powerful lever. You cannot simply rely on the condition precedent: you must insist that your notary checks the Local Urban Plan (PLU, successor to the POS) and informs you of risks. If they do not, and you suffer loss (costs incurred, loss of chance), you can hold them liable. Example: in Orléans, a serviced plot of 500 m² costs on average €80,000. If you pay a 10% deposit (€8,000) and planning permission is refused, you lose that sum if the notary did not check the PLU.

For a seller, be vigilant: if you sell subject to a condition precedent, the notary must also advise you. A seller in Olivet might see the sale cancelled without compensation if planning permission is refused, but the notary could be held liable if they did not verify buildability. In practice, the seller is not directly protected, but they can claim against the notary if they suffer loss (e.g., if the buyer pulls out and the seller rejected another offer).

For a tenant or co-owner, this case law is less direct, but it illustrates a general principle: every property professional (notary, agent, lawyer) must give you full information. If you sign a commercial lease with a condition precedent of obtaining an operating licence, the notary must verify feasibility.

Finally, for property professionals, this decision is a reminder: the condition precedent is not a shield. You must anticipate risks and flag them in writing. A simple "subject to planning permission" is not enough.

Four Tips to Avoid This Type of Dispute

• Check the PLU yourself before signing. Go to the town hall in Orléans or Olivet, or check the planning website. Verify that the land is buildable and that there are no easements (administrative constraints) or flood zones.
• Insist on a reinforced advisory clause in the promise. Ask your notary to include a statement that they have checked buildability and informed you of risks. If they refuse, be wary.
• Keep all evidence of your communications. Emails, letters, meeting notes. In a dispute, you will need to prove that the notary failed in their duty to advise.
• Do not pay a deposit until you are certain about planning permission. Even if the sale is conditional, the deposit may be lost if planning permission is refused due to your fault (e.g., incomplete application). Wait for the town hall's approval.

Further Reading: Related Case Law and Developments

This decision is part of a line of cases strengthening notaries' liability. For example, in a judgment of 8 July 1994 (No. 92-18.234), the French Supreme Court had already held that the notary must verify the legality of planning permission before drafting the deed. More recently, in 2018, the Paris Court of Appeal ordered a notary to pay €50,000 in damages for failing to disclose a risk of collapse of a party wall. The trend is clear: courts are increasingly demanding of legal professionals.

In future, we can anticipate that this obligation will extend to other areas: checking environmental easements, natural risks, or compliance with co-ownership regulations. Notaries will need to be increasingly proactive, or risk being held liable.

Summary and Next Steps

FAQ:

• Q: What if my notary did not check the PLU? A: Gather evidence (promise of sale, correspondence) and consult a property lawyer in Orléans. You can bring a civil liability claim within 5 years of the loss.
• Q: Can I cancel the sale if planning permission is refused? A: Yes, the condition precedent applies: the sale becomes void. But if the notary breached their duty, you can claim damages for costs incurred.
• Q: What are the time limits for action? A: You have 5 years from the discovery of the loss (e.g., the refusal of planning permission) to sue the notary. After that, it is time-barred.
• Q: Can the seller also sue the notary? A: Yes, if they suffer loss (e.g., the sale fails and they lost an opportunity). But this is rarer.
• Q: How much does legal action cost? A: Lawyer's fees vary: expect €1,500 to €3,000 for a first instance procedure in Orléans. But a 30-minute consultation with Maître Zakine for €45 can help you assess your chances.

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 →