Descriptive Notice and Façade Colour: When the Contract Prevails over the Planning Permission

Imagine: you have just bought a new flat in Laval, in a development whose façade was supposed to be dazzling white, as in the developer's pretty model. You sign at the notary's office, you move in, and then shock: the façade is anthracite grey, or perhaps beige. The developer tells you it complies with the planning permission. But you had a document, a descriptive notice, which promised white. Who to believe? This is exactly the question the Court of Cassation decided on 18 May 2017.

Every buyer wonders one day: what is really the value of what was promised to me before the sale? Advertising documents, plans, notices... some have legal value, others do not. This decision is valuable because it clarifies the role of the descriptive notice annexed to the notarial deed. It lays down a simple principle: it is what is written in the deed of sale and its annexes that is authoritative, not necessarily the planning permission.

In this case, the Court of Cassation upheld the reasoning of a court of appeal which had held that the change of façade colour was not a fault of the seller, because the descriptive notice, which alone was contractual, left the choice to the architect. A lesson for all those who buy off-plan: read the small print, and above all, check what is annexed to the notarial deed.

The Facts: A Story That Happens Every Day

Mr X, a retired man from Laval, had reserved a flat in a new development. The preliminary contract (the "reservation") described a light-coloured façade. But between the reservation and the final sale, the developer obtained a modified planning permission, which mentioned white and anthracite. The architect then chose an anthracite-coloured brick for part of the façade. When signing the notarial deed at the notary's office, Mr X signed a statement that he had been informed of the modifications to the plans and the descriptive notice since the preliminary contract.

A few months after completion, Mr X and other co-owners noticed that the façade was not at all the expected colour. They sued the developer, claiming damages for breach of contractual obligations. The developer defended himself by arguing that the descriptive notice annexed to the deed of sale, which alone had contractual value, did not specify a precise colour but referred to the architect's choice in compliance with the planning permission. Moreover, the notarial deed mentioned that Mr X had been informed of the modifications.

The court of appeal found in favour of the developer. The co-owners then appealed to the Court of Cassation. But the Court of Cassation dismissed their appeal, upholding the appeal court's decision. For the judges, the descriptive notice was the only contractual document, and it did not guarantee a specific colour. The developer had therefore fulfilled his obligations.

The Reasoning of the Court — Analysed

The heart of the dispute concerned the notion of "contractual value". In French law, not all documents provided before the sale (brochures, plans, models) have the same force. Only those expressly annexed to the notarial deed and designated as contractual bind the seller. Here, the descriptive notice was annexed and qualified as having "sole contractual value". This is an essential point: the seller can limit his commitments by specifying which documents bind the parties.

The Court of Cassation recalled that Article 1240 of the Civil Code (liability for fault) could only be invoked if the seller had failed to comply with a precise obligation. However, the descriptive notice did not impose a mandatory colour. It stated that the architect had to comply with the planning permission, which mentioned white and anthracite. The architect therefore chose anthracite, which was permitted. The judges also emphasised that the notarial deed contained a clause by which the buyer declared that he had been informed of the modifications. This clause, although general, reinforced the idea that Mr X could not complain about a change he had accepted by signing.

The decision is neither a reversal nor a major evolution: it confirms consistent case law on the binding force of contractual documents. It simply reminds us that the planning permission is an administrative document that does not form part of the contract of sale, unless expressly incorporated. The judges therefore applied the classic rule of freedom of contract: the parties are bound by what they have signed, nothing more.

What This Changes for You — Concretely

For buyers, this decision is a warning: do not rely on verbal promises or non-contractual documents. If you are buying off-plan in Laval or Évron, insist that the façade colour, materials, and fittings are set out in black and white in the descriptive notice annexed to the notarial deed. If the developer refuses, that is a red flag. A concrete example: a couple from Évron reserved a house with red bricks, but the descriptive notice only mentioned "facing brick". On completion, the bricks were ochre. Without a precise clause, they could not obtain any compensation — the estimated loss was €15,000 in diminished value.

For developers and sellers, this case law is a protection. By carefully drafting the descriptive notice and including a margin of discretion (e.g., "the architect may modify the shades in compliance with the planning permission"), you limit your liability. Also consider having the buyer sign a clause acknowledging modifications, as in this case.

For co-owners, if you are in dispute with the developer, first check what the deed of sale and its annexes actually say. If the descriptive notice is vague, your chances of success are low, unless you can prove fraud (dol) or a serious non-conformity. In that case, act quickly: the limitation period for contractual liability is 5 years from completion.

Four Tips to Avoid This Type of Dispute

• Insist on a detailed descriptive notice before signing. Have the precise characteristics recorded: exact colour (RAL reference), type of material, brand of fittings. Do not settle for generic terms like "quality brick".
• Check the annexes to the notarial deed. Before signing at the notary's office, ask to see all annexed documents. Ensure that the descriptive notice attached is the latest version and matches what was promised to you.
• Include a compliance clause. If you want to be certain that the planning permission will be adhered to, ask that the deed states that the seller undertakes to carry out the works in accordance with the planning permission. Otherwise, the planning permission is not contractual.
• Keep all advertising documents. Even if they have no contractual value, they can serve as evidence of fraud if the seller deliberately lied. Take photos, keep brochures, models.

Further Reading: Related Case Law and Developments

This decision is part of a consistent line of authority. For example, the Court of Cassation held in 2013 (No. 12-20.838) that the plans annexed to the deed of sale alone had contractual value, not the advertising plans. Similarly, in 2015 (No. 14-10.536), it recalled that the seller is not obliged to comply with the terms of the planning permission if the deed does not incorporate them.

However, a recent development could nuance this approach: the ALUR law of 2014 strengthened the information given to buyers in VEFA (sale in the future state of completion). Since then, the preliminary contract must contain more precise mentions, and any substantial modification after the reservation must be accepted by the buyer. But this does not change the principle: it is the notarial deed that sets out the final obligations.

In the future, courts may be stricter if the seller uses overly vague clauses to exonerate himself. But for now, freedom of contract remains paramount. If you want to be protected, insist on precise descriptions and do not hesitate to consult a specialist lawyer before signing.

Frequently Asked Questions

1. What if the colour of my façade does not match the descriptive notice? First check whether the descriptive notice is annexed to the deed of sale and whether it mentions a specific colour. If so, you can bring a claim for breach of contract within 5 years of completion. If the notice is vague or absent, your remedies are limited.
2. Does the planning permission have contractual value? No, unless it is expressly stated as contractual in the deed of sale. It is an administrative document that does not directly bind the seller vis-à-vis the buyer.
3. Can I refuse to sign the deed if the colour has changed? Yes, if the modification is substantial and you were not informed before signing. But beware: if you sign the deed with a clause acknowledging modifications, you are deemed to have accepted them.
4. What are the time limits for taking action? The limitation period for contractual liability is 5 years from completion. For fraud, the period is 5 years from the discovery of the fraud.
5. Does a simple email from the developer promising a colour have any value? No, unless it is annexed to the deed. But it can serve as a commencement of written proof to establish fraud if the developer intentionally lied.

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