Notarial Notification: When the Prefect's Silence Constitutes Authorisation to Sell

Imagine you own a beautiful apartment in Cagnes-sur-Mer, overlooking the sea. You have found a serious buyer, signed a sale agreement before a notary, and are preparing to finalise the transaction. But then the buyer withdraws, citing a procedural defect in the administrative authorisations. What should you do? This scenario is one I regularly encounter in my practice in the Grasse jurisdiction.

The question that then arises is crucial: once the agreement is notified to the authorities, how long do they have to oppose it? And most importantly, what happens if they do not react? This is exactly the core of the decision we are analysing today.

This decision by the Court of Cassation provides a clear answer: the prefect's silence for two months after notification constitutes tacit authorisation. In other words, the absence of a reaction within this period allows the sale to be considered authorised. But what does this change in practice for you?

The Facts: A Story as Common as Any

The story begins with a religious congregation owning a building in Paris. Like any private legal entity, it must obtain administrative authorisation to sell its real estate assets. This is provided for by the decree of 11 May 2007, which strictly regulates these operations.

The congregation finds a buyer: Priams Construction. Together, they sign a sale agreement before a notary on 2 July 2007. The notary, being diligent, immediately notifies this agreement to the Paris prefecture. This is where the administrative process begins: the prefect then has two months to oppose the sale.

Two months pass. Silence from the prefecture. The congregation and Priams Construction therefore proceed with the transaction, convinced that the absence of opposition constitutes authorisation. But then a problem arises: Priams Construction withdraws and sues the congregation, seeking nullity of the agreement. Its argument? The administrative authorisation was not properly obtained.

The legal battle begins. At first instance, then on appeal, the judges scrutinise the case. They note a decisive element: the notary duly notified the agreement on 2 July 2007, and the prefect raised no opposition within the legal two-month period. The appeal court therefore concludes that the congregation had the authority to sell the building.

Priams Construction does not accept this decision and appeals to the Court of Cassation. But the Court of Cassation, in its ruling of 25 March 2015, confirms the reasoning of the lower courts. The prefect's silence for two months indeed amounts to tacit authorisation. The story thus ends with validation of the sale, to the great dismay of the buyer seeking an escape route.

The Court's Reasoning — Analysed

The judges' reasoning is based on a rigorous interpretation of the decree of 11 May 2007, particularly its Article 7. This article provides that religious congregations must obtain prior administrative authorisation to alienate (sell) their real estate assets. But how is this authorisation obtained in practice?

The procedure is precise: the notary in charge of the sale must notify the sale project to the prefect of the department where the property is located. From this notification, the prefect has a period of two months to express opposition. This period is not insignificant: it represents the time necessary for the administration to examine the case and potentially oppose if it deems the sale poses a risk.

In this case, the judges noted an indisputable fact: notification indeed occurred on 2 July 2007 by letter from the notary. They then verified that the prefect had raised no opposition in the following two months. Based on these factual findings, they applied the principle of silence implies consent (silence implies acceptance).

This principle, well-known in administrative law, means that when the administration is seized of a request and does not respond within the allotted period, its silence equates to a positive decision. Here, the two-month period having elapsed without opposition, the judges deduced that the prefect had tacitly authorised the sale.

The Court of Cassation confirmed this reasoning by rejecting Priams Construction's appeal. It considered that the appeal court had correctly applied the law by drawing the consequences of the prefect's silence. This decision aligns with prior case law, which has long recognised the value of administrative silence in this type of procedure.

But caution is advised: this principle is not absolute. It applies only when the law expressly provides for it, as is the case with the 2007 decree. In other contexts, the administration's silence may have a different meaning. This is why it is essential to know the legal regime applicable to each situation.

What This Changes for You — Practically

If you are a landlord in the Grasse jurisdiction, this decision directly concerns you. Imagine you own a rental property in Le Cannet and wish to sell it. If your situation requires administrative authorisation (e.g., because you are an association or foundation), this decision reassures you: once notification is made, you do not have to wait indefinitely.

Practically, here is what changes: after notification by your notary, you can consider authorisation obtained after two months if the prefect has not opposed. This allows you to plan your sale schedule with more certainty. No need to fear that a slow administration will indefinitely block your project.

For buyers, the lesson is different. If you sign an agreement on a property requiring administrative authorisation, you cannot withdraw later by invoking a procedural defect if the two-month period has elapsed without opposition. undefined, I have encountered cases where buyers attempted this manoeuvre, hoping to recover their deposit. This decision now closes this door to them.

Real estate professionals — agents, developers, notaries — must also integrate this case law. It strengthens the legal certainty of transactions. A notary who duly notifies an agreement can advise clients with full confidence: after two months, the sale can proceed. This avoids unnecessary blockages and streamlines the market.

What few people know: this principle of silence implies consent can apply in other real estate contexts. For example, for certain planning permissions, the administration also has periods after which its silence implies acceptance. But each regime has its specificities, which must be known precisely.

Four Tips to Avoid This Type of Dispute

• Always check if your sale requires administrative authorisation: before signing anything, consult a professional to determine if your situation (association, foundation, congregation, etc.) imposes such a formality. An error on this point can invalidate the entire transaction.
• Demand written proof of notification: if notification is required, ensure your notary does it by registered letter with acknowledgment of receipt. Keep this acknowledgment carefully, as it will serve as evidence in case of dispute over the notification date.
• Scrupulously respect the two-month period: do not rush to sign the definitive sale deed before this period expires. Even if the prefect has not responded, patiently wait for the two months to pass to be certain that silence constitutes authorisation.
• Document the absence of opposition: at the end of the period, have your notary draw up a statement attesting that no opposition was received. This document can be produced in court if the buyer attempts to challenge the regularity of the sale.

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Deep Dive: Related Case Law and Developments

This decision fits into consistent case law on the value of administrative silence. Already in 2010, the Court of Cassation issued a similar ruling (No. 09-67.123) concerning a religious congregation. The judges then confirmed that the absence of opposition from the prefect within the legal period constituted tacit authorisation.

The trend of the courts is clear: they prioritise legal certainty and stability of transactions. When a procedure is provided by law and respected, they refuse to challenge a sale for minor procedural defects. This approach is particularly important in the real estate context, where financial stakes are often considerable.

For the future, this case law should continue to apply. It addresses a practical need: avoiding transactions being indefinitely blocked by administrative inaction. In a dynamic real estate market like that of the Côte d'Azur, this predictability is essential for all actors.

But how to react if you face a similar situation? The first step is always to consult a professional who can analyse your case in light of this case law. Each case has its specificities, and personalised analysis is indispensable.

In Practice: What to Do

FAQ — Frequent Questions on Notarial Notification

1. Who must carry out the notification to the prefect?
The notary in charge of the sale is responsible for this formality. It is up to them to draft the letter, send it by registered post, and keep proof of sending and receipt.

2. Does the two-month period start from sending or receipt?
It runs from the date of receipt by the prefecture. This is why the acknowledgment of receipt is crucial: it sets the starting point of the period.

3. What to do if the prefect opposes after the two-month period?
Their opposition is inadmissible. Once the period has elapsed without reaction, their silence constitutes authorisation. They cannot go back on this tacit decision.

4. Does this principle apply to all real estate sales?
No, only to those expressly subject to administrative authorisation by a specific text, such as the 2007 decree for religious congregations.

5. Can I sell my property before the two-month period expires?
It is strongly advised against. Even if the probability of opposition is low, waiting for the period to expire protects you from any risk of subsequent nullity.

Do you find yourself 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 →