Nullity of Late Acceptance of Offer to Sell: Only the Lessor May Rely on It

Imagine: you are the owner of a flat in Beaucourt, in the Territoire de Belfort. You decide to sell it. Your tenant, who has lived there for years, informs you that he wishes to buy. You send him an offer to sell in accordance with the Law of 6 July 1989. He accepts, but a little late. Too late? The question that haunts every owner is: is this late acceptance valid? And if I ultimately prefer to sell to someone else, can I withdraw?

The answer was given by the Court of Cassation in a judgment of 15 January 2015 (No. 14-11.019). And it is remarkably clear: only the lessor may invoke the nullity of the late acceptance. In other words, if the owner does not complain about the delay, the acceptance is perfectly valid. The notary who drafts the deed of sale after the deadline commits no fault towards other potential buyers, who were legitimately ousted by the exercise of the tenant's right of pre-emption.

This decision, rendered in a case from Amiens, has concrete repercussions for all property actors: owners, tenants, notaries and ousted buyers. Let us delve into the details.

The facts: a story that happens every day

In 2009, an owner, Mr. B..., signed a synallagmatic promise to sell with buyers, the Y. consorts. But the building was rented. The tenant, as allowed by law, was sent an offer to sell. He accepted, but after the legal period of two months. The owner, rather than relying on this lateness, chose to sell to his tenant. The ousted buyers, unhappy, turned against the notary in charge of the sale. They reproached him for not having warned them of the risks: according to them, the late acceptance was void, and the notary should have informed them so that they could challenge the sale.

The facts took place in Beaucourt, a commune in the Territoire de Belfort. The Y. consorts had nevertheless requested an extension of the preliminary contract until 30 November 2009. But the owner had already chosen to sell to the tenant. The notary, notarising the sale after the expiry of the deadline, was sued for professional liability. The Amiens Court of Appeal, then the Court of Cassation, rejected the claim of the ousted buyers.

The reasoning of the court — dissected

The Court of Cassation relies on Article 15, II, paragraph 5 of the Law of 6 July 1989. This provision states that the tenant's acceptance of the offer to sell must occur within a period of two months from receipt of the offer. After this period, the acceptance is void. But the Court specifies that this nullity is relative: it can only be invoked by the person it protects, namely the lessor. Why? Because this period is established in the interest of the owner, to allow him not to be indefinitely bound by his offer. If the owner does not complain about the delay, the acceptance is therefore perfectly valid.

In this case, the lessor had accepted the late acceptance and had sold to the tenant. The ousted buyers could therefore not rely on this relative nullity. The notary, who had notarised the sale after the deadline, had not breached any duty of advice towards the buyers: they had been legitimately ousted by the effective exercise of the tenant's right of pre-emption. The Court thus dismissed the appeal of the Y. consorts.

This judgment confirms constant case law: relative nullity can only be invoked by the protected party. It also reminds that the notary is not required to inform ousted buyers of the risks of nullity, as long as the lessor has validated the late acceptance.

What this changes for you — concretely

For owner-lessors: you have the power to decide whether a late acceptance by your tenant is valid or not. If you wish to sell to your tenant, you can disregard the two-month period. If you prefer to sell to another buyer, you can invoke the nullity and refuse the sale to the tenant. Caution: your decision must be clear and unequivocal. If you let an unreasonable amount of time pass, you might be deemed to have waived your right to rely on the nullity.

For tenants: if you accept the offer to sell after the legal deadline, your acceptance is not necessarily void. Everything depends on your landlord's reaction. If he says nothing and proceeds with the sale, it is valid. But if your landlord invokes the delay, you cannot require the sale.

For ousted buyers: this decision is unfavourable to you. If the owner sells to his tenant after a late acceptance, you cannot sue the notary for lack of advice. Nor can you seek annulment of the sale. Your only recourse is to check in advance whether the tenant exercised his right of pre-emption within the deadlines. If you have any doubt, ask the seller to prove compliance with the deadlines.

Example with figures: in Belfort, an owner sells a flat for €150,000. The tenant accepts the offer three weeks after the deadline. The owner, who wants to sell quickly, disregards it. The ousted buyers, who had signed a preliminary contract at €160,000, can do nothing. They lose the difference of €10,000.

Four tips to avoid this type of dispute

• Have the offer to sell served by a bailiff: this allows proof of the date of receipt and avoids any dispute as to the starting point of the two-month period.
• Require your notary to verify compliance with the deadline: before signing the deed of sale, ask him to ensure that the tenant's acceptance occurred within two months, or that the lessor expressly waived the right to invoke nullity.
• If you are a buyer, include a suspensive condition: provide in the preliminary contract that the sale is conditional on the tenant not exercising the right of pre-emption within the legal deadlines.
• In case of late acceptance, obtain written confirmation of the lessor's intention: if the owner agrees to sell despite the delay, ask him to sign a written document waiving the right to rely on nullity.

Further reading: related case law and developments

This judgment is part of a consistent line of case law. Already, in a judgment of 23 September 2009 (No. 08-17.396), the Court of Cassation had held that the nullity of late acceptance is relative and can only be invoked by the lessor. The 2015 decision merely confirms this principle. However, the Court also specified that the notary must inform the parties of risks of absolute nullity, for example in case of violation of public policy. But for relative nullity, his duty of advice is limited.

Another interesting decision is that of 12 January 2011 (No. 09-70.792), where the Court held that the tenant may withdraw during the two-month period, but his acceptance becomes irrevocable upon expiry of that period. The current trend is therefore to protect the lessor while offering legal security to the tenant who accepted within time.

For the future, it is possible that the law will evolve to harmonise deadlines or strengthen the protection of buyers. But as it stands, the case law is clear: the lessor is the sole master of the relative nullity of late acceptance.

Key points to remember

FAQ:

• Can I, as an owner, sell to my tenant if he accepted my offer after two months? Yes, you can. The nullity of late acceptance is relative: only you can invoke it. If you do not, the sale is valid.
• What should I do if I am a buyer and the seller sells to his tenant after a late acceptance? You cannot sue the notary nor seek annulment. Check compliance with deadlines in advance and include a suspensive condition in your preliminary contract.
• Does the notary have a duty of advice towards ousted buyers? No, if the lessor validated the late acceptance. The notary does not have to inform buyers of risks of relative nullity that only the lessor can invoke.
• What is the exact deadline for accepting the offer to sell? Two months from receipt of the offer by the tenant. This period is provided for in Article 15, II, paragraph 5 of the Law of 6 July 1989.
• Can I, as a tenant, accept the offer after two months if the owner says nothing? Yes, but your acceptance is only valid if the owner does not rely on the nullity. If he does, you lose the benefit of the offer.

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