Nullity of a sale in off-plan property (VEFA): the court takes the date of the claim

Imagine: you sign a VEFA (sale in the future state of completion) contract for a flat in Menton. The developer promises delivery in 18 months. But in reality, at the date of signing, he has not yet obtained his building permit. You learn this later, after having already paid deposits. What can you do? Can you request the cancellation of the sale? And above all, at what date does the court consider itself to check whether the lack of a permit justifies nullity? This is precisely the question that the French Supreme Court ruled on in a judgment of 30 September 2015. A decision that sheds light on a point often obscure for buyers.

This decision is crucial because it sets a clear rule: to assess the validity of a VEFA contract with regard to the rules of form (in particular Article L. 261-11 of the French Building and Housing Code), the court must consider the date of the originating claim, i.e. the date of the claim brought to court. In other words, if the building permit did not exist at the time you issued the claim against the developer, nullity can be declared, even if the developer obtains it afterwards. A safety net for the buyer, but also a sword of Damocles for the negligent seller.

In this article, we will break down this decision, its facts, its reasoning, and above all its practical consequences for you, whether you are a buyer, seller or property professional. We will see in particular how a judgment of the Aix-en-Provence Court of Appeal was overturned for failing to respect this principle, and how the High Court set the record straight. Ready to dive into the intricacies of VEFA law? Let's go.

The facts: a story like many that happen every day

The case begins in Menton, in the Alpes-Maritimes. A property developer sells a flat in VEFA to a private individual. The contract is signed on 15 March 2007. The buyer pays a 10% deposit on the price, i.e. €30,000 out of a total of €300,000. But quickly, doubts arise: the construction site does not start, the delivery deadlines are postponed. The buyer eventually discovers that the developer had not obtained the building permit at the time of signing the contract. He then decides to issue a claim against the developer on 10 January 2008 to request the nullity of the contract.

The developer, for his part, finally obtains the building permit on 15 February 2008, i.e. after the claim. He argues that the defect has now been cured and that nullity can no longer be declared. The Aix-en-Provence Court of Appeal agrees with him in a judgment of 11 December 2013: it rejects the claim for nullity on the grounds that the building permit was obtained during the proceedings. The buyer appeals to the Supreme Court.

The question put to the French Supreme Court is simple: at what date must one consider oneself to verify whether the nullity of the VEFA contract for non-compliance with the provisions of Article L. 261-11 of the Building and Housing Code is effectively invoked? Article L. 261-11 requires that the VEFA contract contain mandatory information, in particular the indication of the building permit. In the absence of a permit at the time of signing, the contract is void. But can the nullity be cured by the subsequent obtaining of the permit?

The French Supreme Court, in its judgment of 30 September 2015, overturns the Court of Appeal's decision. It recalls that to assess nullity, the court must consider the date of the originating claim, i.e. the date of the claim. It does not matter that the permit is obtained later: if at the date of the claim it did not exist, nullity is incurred. A victory for the buyer, but also a warning for developers: do not sign without a permit, or you risk annulment.

The reasoning of the court — dissected

The reasoning of the French Supreme Court is based on a fundamental procedural rule: the date of the originating claim is the reference point for assessing the validity of a contested legal act. In matters of nullity of a contract, the court must consider that date to determine whether the cause of nullity existed. If the defect (absence of permit) was present at that time, nullity is incurred, even if the defect subsequently disappears.

In this case, the Court of Appeal had made a mistake by taking into account the permit obtained after the claim. The French Supreme Court censures this approach: "Whereas to reject the claim for annulment of the VEFA contract, the judgment holds that the building permit was obtained after the claim; whereas in so ruling, when it should have considered the date of the originating claim to verify whether the nullity was effectively invoked, the Court of Appeal violated Article L. 261-11 of the Building and Housing Code."

This solution is logical: if the developer were allowed to cure the defect after the claim, this would encourage fraud. A developer could sign without a permit, wait to be sued, then obtain the permit to escape annulment. The French Supreme Court closes this door. It follows a consistent line of case law: in matters of nullity of a contract for lack of a formal or substantive condition, the court considers the date of the legal claim. This is an application of the principle that nullity is assessed at the time it is invoked.

The arguments of the parties were classic. The buyer argued that nullity was acquired from the signing of the contract, and that the subsequent obtaining of the permit could not cure it. The developer, for his part, invoked cure and good faith. But the French Supreme Court did not follow this path: nullity is a penalty, not a mere temporary defect. Once it is incurred, it cannot be erased by a subsequent event, unless the law expressly provides otherwise (which is not the case here).

This decision is a confirmation of previous case law, in particular a judgment of 2012 (Civ. 3e, 4 July 2012, no. 11-18.845) which had already established the principle. It therefore does not constitute a reversal, but it forcefully reaffirms a rule sometimes overlooked by lower courts.

What this changes for you — concretely

If you are a buyer in VEFA, this decision protects you. Imagine you sign a contract for a flat in Cagnes-sur-Mer, and you discover that the developer did not have the building permit. You issue a claim. Even if the developer obtains the permit during the proceedings, you can obtain the annulment of the contract and the reimbursement of the sums paid, with interest. Concretely, if you paid a deposit of €50,000, you will be able to recover this sum, plus interest at the legal rate (around 4% per year in 2025), i.e. an additional €2,000 per year. Without this case law, the developer could have kept your money by curing the defect at the last minute.

For developers, the message is clear: never sign a VEFA contract without having obtained the building permit. If you do, you risk the annulment of the contract, even if you obtain the permit later. This can have serious financial consequences: reimbursement of deposits, possible damages, and loss of credibility. In a tense market, this decision encourages rigour.

For notaries and property professionals, this is a reminder: when signing a VEFA contract, systematically check the existence of the building permit. If the permit has not yet been obtained, the contract is void. You must advise your client not to sign until the permit is issued. A notary who allows a contract to be signed without a permit may incur liability.

In practice, if you are in this situation, you must act quickly. The time limit to bring a claim for nullity is 5 years from the signing of the contract (Article 1304 of the French Civil Code, former). But the longer you wait, the more you risk losing your rights. Consult a lawyer as soon as you have any doubt.

Four tips to avoid this type of dispute

• Demand the building permit before signing: Never sign a VEFA contract without having seen the building permit. Ask for a copy and check that it has been issued and is not contested. If the developer refuses, walk away.
• Include a suspensive condition: In the contract, provide a clause that makes the sale conditional on obtaining the building permit. Thus, if the permit is not obtained within a given period, the contract is automatically annulled and you recover your deposits.
• Keep all evidence: Keep a copy of the contract, correspondence with the developer, and especially the date of issuance of the permit. In case of dispute, these documents will be essential to prove that the permit did not exist at the date of signing.
• Act without delay: If you discover an irregularity, do not delay in consulting a lawyer. The limitation period of 5 years runs from the signing. But the longer you wait, the harder it will be to prove that the defect existed from the start.

Further reading: related case law and developments

This decision is part of a consistent line of case law. Already in 2012, the French Supreme Court had ruled that the nullity of a VEFA contract for lack of a building permit had to be assessed at the date of the claim (Civ. 3e, 4 July 2012, no. 11-18.845). More recently, a judgment of 21 March 2019 (no. 17-28.474) extended this principle to other formal defects, such as the absence of a financial guarantee for completion. The trend is therefore clear: the court does not tolerate late cures.

This solution is consistent with the common law of nullities. In contract law, nullity is assessed at the time of formation of the contract. If the defect exists at that time, nullity is incurred. Subsequent events cannot cure it, unless the law provides otherwise (for example, in matters of hidden defects, the warranty may be excluded if the seller was unaware of the defect). In VEFA, the law does not provide for a cure, hence the strictness of the case law.

For the future, it can be expected that the courts will continue to apply this rule strictly. Developers must therefore be particularly vigilant. Is a legislative reform possible? Nothing is less certain. The legislature seems satisfied with this balance which protects buyers, who are often in a weaker position.

Frequently asked questions

1. Can I request the nullity of my VEFA contract if the building permit was obtained after the signing?
Yes, if you issue the claim before the permit is obtained. Nullity is assessed at the date of the claim. If the permit did not exist at that time, nullity is incurred, even if the permit is obtained later.

2. What is the time limit to bring a claim for nullity?
The limitation period is 5 years from the signing of the contract (Article 1304 of the French Civil Code). After this period, you can no longer request nullity.

3. What should I do if I have signed a VEFA contract without a building permit?
Consult a specialised lawyer immediately. You can issue a claim to request annulment and reimbursement of the sums paid. Do not wait for the developer to cure the defect.

4. Can the developer claim damages from me if I obtain nullity?
No, in principle. Nullity has retroactive effect and the contract is deemed never to have existed. Each party must return what it has received. The developer cannot claim damages, unless he proves a fault on your part (for example, if you acted in bad faith).

5. Does this case law apply to other formal defects?
Yes, the French Supreme Court applies the same principle to other defects, such as the absence of a financial guarantee for completion or the lack of mandatory information. The court always considers itself at the date of the claim.

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