Nullity of a Promise to Sell Without Floor Area: The French Supreme Court Decision of 22 November 2018

Imagine: you sign a preliminary contract for the sale of a flat in Marchiennes, near Douai. The notary gives you a document, you sign it without checking thoroughly. A few months later, you discover that the floor area mentioned is not the right one — or worse, that it is not even indicated in the preliminary contract. What can you do? This question is asked by hundreds of buyers each year, without knowing that the answer lies in a decision of the French Supreme Court of 22 November 2018.

Yes, the Law of 10 July 1965 (Carrez Law) requires that any promise to sell a unit in a condominium must mention the floor area of the private part. If this is not the case, the buyer can seek nullity of the promise. But be careful: some sellers try to regularise after the fact by having a measurement certificate signed. Is this sufficient? The French Supreme Court answers no, and it says so clearly in this decision.

This decision is a safeguard for buyers. It reminds that the right to nullity is only extinguished by the signing of the notarised deed of sale, not by a simple addendum. A lesson to bear in mind for all those who sign a preliminary contract without checking the floor area, especially in cities like Somain or Marchiennes where property transactions are numerous.

The facts: a story like those that happen every day

In December 2013, buyers signed a preliminary contract to purchase condominium units in Marchiennes. The problem? This preliminary contract did not mention the floor area of the units, as required by the Carrez Law. The sellers had had a measurement certificate prepared by a surveyor, but this certificate was neither annexed to the preliminary contract nor dated. The buyers simply signed it, with the words "acknowledged receipt", next to the sellers' representative.

A few months later, the buyers changed their minds and sought nullity of the preliminary contract, citing the absence of floor area. The sellers resisted: according to them, the signing of the measurement certificate amounted to regularisation. The certificate, they argued, formed an "indissociable whole" with the preliminary contract. The Douai Court of Appeal ruled in their favour in 2017, rejecting the claim for nullity. But the buyers did not stop there: they appealed to the French Supreme Court.

Before the French Supreme Court, the question was simple: can a measurement certificate signed after the preliminary contract, without being annexed or dated, regularise the absence of floor area? The High Court answered in the negative. It quashed the Court of Appeal's decision, holding that the latter had not established the buyers' intention to regularise. In short, a signature on a separate document is not sufficient to cover the initial defect.

The reasoning of the court — dissected

The legal basis of this case is Article 46 of the Law of 10 July 1965 (Carrez Law), which provides that any promise to sell a condominium unit must mention the floor area of the private part. Failing that, the buyer may seek nullity of the promise. But this right is not eternal: it is extinguished ("déchéance") when the notarised deed of sale is signed, provided that this deed mentions the floor area.

In this case, the Court of Appeal had considered that the buyers' signing of the measurement certificate amounted to contractual regularisation, making the preliminary contract valid. It relied on the fact that the certificate and the preliminary contract formed an indissociable whole. But the French Supreme Court did not see it that way. It recalled that only the signing of the notarised deed can extinguish the right to nullity. A simple addendum, even signed, is not sufficient, especially if it is not formally incorporated into the preliminary contract (annexation, reference to the addendum in the deed).

The Court insisted on one point: the intention to regularise must be established. In this case, the certificate was not dated, and there was no proof that the buyers intended to cover the absence of floor area. In conclusion, the nullity of the preliminary contract was upheld. This is a confirmation of previous case law: buyer protection is strengthened, and sellers cannot rely on a "quick and dirty" regularisation.

What this changes for you — concretely

For buyers, this decision is good news: if the preliminary contract you sign does not mention the floor area, you can seek its nullity until the signing of the notarised deed. And this is the case even if the seller has you sign a measurement certificate afterwards. Example: you buy a unit in Somain. The preliminary contract says nothing about the floor area. The seller presents you with a measurement certificate that you sign, but without a date or link to the preliminary contract. You can still claim nullity. Be careful, the time limit to act is 5 years from the signing of the preliminary contract (general limitation period), but it is prudent to act before the notarised deed.

For sellers, the lesson is clear: do not neglect the mention of floor area in the preliminary contract. If you have forgotten it, regularisation by addendum must be done carefully: express mention in the preliminary contract that the addendum forms an integral part, date, signature of both parties. Otherwise, you risk having the sale annulled, with all costs to your charge (notary fees, agency fees, etc.).

For notaries and estate agents, this decision reminds of the importance of drafting pre-contracts. A poorly drafted preliminary contract can lead to years of litigation. In Marchiennes as elsewhere, caution is key: check that the floor area is indeed indicated, and if a measurement certificate is used, that it is annexed to the preliminary contract and dated.

Four tips to avoid this type of dispute

• Insist on floor area in the preliminary contract: Before signing, check that the floor area of the units is indeed indicated, in accordance with Article 46 of the 1965 Law. If not, do not sign without requiring a written and dated regularisation, integrated into the preliminary contract.
• Never sign a document without a date: An undated measurement certificate is fragile evidence. Insist that the date be affixed, and keep a copy.
• Use an independent surveyor: If you are a seller, have the unit measured by a professional before signing the preliminary contract, and annex the certificate to the deed. This avoids any subsequent dispute.
• Consult a lawyer before acting: If you are a buyer and the preliminary contract does not mention the floor area, do not rush. A consultation with a lawyer specialising in property law, such as Maître Zakine, can save you from mistakes. Sometimes it is more strategic to negotiate a price reduction than to seek nullity.

Further reading: related case law and developments

This decision is part of a line of cases protecting the buyer. Already in 2016, the French Supreme Court had held that the absence of floor area in a preliminary contract could be invoked even after the signing of the notarised deed, if the latter also did not mention it (Civ. 3e, 20 October 2016, No. 15-20.034). Here, the Court goes further: it specifies that regularisation by addendum is only valid if done under strict conditions.

On the other hand, a 2017 decision (Civ. 3e, 9 March 2017, No. 16-10.836) had seemed more flexible, accepting regularisation by exchange of letters. But the 2018 decision returns to a stricter position. The trend of the courts is therefore clear: buyer protection prevails, and any regularisation must be formal. In the future, we can expect judges to be even more demanding on proof of the intention to regularise.

Checklist before acting

If you are a buyer and the preliminary contract does not mention the floor area:

1. Check whether a measurement certificate was signed. If it is not annexed to the preliminary contract and undated, you can act.
2. Consult a lawyer to assess the advisability of a claim for nullity. The time limit is 5 years, but it is better to act quickly.
3. Gather evidence: preliminary contract, certificate, correspondence with the seller.
4. If you prefer to keep the property, negotiate a price reduction corresponding to the difference in floor area.

If you are a seller:

1. Ensure that the preliminary contract mentions the floor area. If not, regularise by a formal addendum, dated and signed by both parties.
2. Do not rely on a measurement certificate signed afterwards without connection to the preliminary contract.
3. If in doubt, seek advice from a notary or lawyer before signing.

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