Liable notary: duty to inform on property risks

Imagine: you sign a preliminary sale agreement for a new flat in Concarneau. The developer seems reliable, the notary is reassuring. You pay a substantial deposit, then the construction stops. The company goes bankrupt. Who is liable? The developer, certainly, but also the notary, says the Court of Cassation. This 1971 decision is a cornerstone of notarial liability: the notary must alert you to risks he knows about, even if he is not a party to the contract.

You wonder if your notary has informed you of all the dangers? This is a legitimate question, because the judgment of 16 November 1971 (n° 70-13.130) established a clear principle: the notary has a duty to enlighten the parties, not only on the scope of the deeds, but also on the risks they run, when he has knowledge of them. Specifically, if he knows that the seller is in financial difficulty, he must tell you before you sign.

In this article, I analyse this landmark decision and explain how it protects you, whether you are a buyer, seller or property professional. We will also see how to apply it concretely, with examples in Douarnenez or elsewhere.

The facts: a story like many others

We are in the 1970s. A company undertakes the construction of a property complex, but its financial situation is precarious. The notary knows this. Yet he receives the sale deeds of the flats without warning the buyers. Worse, he actively seeks buyers, drafts the preliminary sale agreements, and receives the price payments. He even creates mortgages (charges on the property) on the complex, knowing of the sales already made by private preliminary agreements (unnotarised deed) deposited in his office. These sales had already removed the flats from the company's assets. A buyer, Mr X, bought a flat in Concarneau. He paid the price, but the company went bankrupt. He loses his property and his money. He sues the notary for liability.

The first instance court rules in favour of Mr X: the notary committed a fault. The court of appeal confirms. The notary appeals to the Court of Cassation, arguing that he does not have to substitute for the seller. The Court of Cassation dismisses his appeal. It holds that the notary, by accepting to draft the deeds despite his knowledge of the risks, failed in his duty to inform. The notary is ordered to compensate the buyer.

The reasoning of the court — analysed

The Court of Cassation relies on Article 1240 of the Civil Code (formerly 1382), which provides that 'any act of a person which causes damage to another obliges the person by whose fault it occurred to make reparation'. For liability to arise, there must be a fault, damage and a causal link.

Here, the notary's fault is clear: he received the sale deeds without informing the buyers of the certain risks they were running, even though he knew the company's precariousness. The Court specifies that the notary has a duty to enlighten the parties, not only on the scope of the deeds (what they sign), but also on the risks they run (external dangers). This is an extension of his duty to advise. Before this decision, some notaries considered that their role was limited to the formal regularity of deeds. Now, they must also alert on substantial risks.

The notary argued that he was not required to verify the seller's solvency. But the Court responds that this is not a verification that is asked of him: he had personal knowledge of the company's difficulties, and he was required to inform the buyers. The decision creates a duty to disclose known risks, without the need for additional investigation.

What this changes for you — concretely

For buyers: if you buy a property and the notary knows that the seller is bankrupt, that there are undischarged mortgages, or that the building permit is illegal, he must inform you. Otherwise, he incurs liability. You can claim damages. For example, in Douarnenez, a client bought a house with a sea view. The notary knew that the municipality was planning a massive construction in front of the house, but said nothing. The buyer obtained compensation for the loss of value.

For sellers: you must be transparent with your notary. If you hide information, you also incur liability. But the notary remains obliged to check certain public information (mortgages, easements).

For notaries: this decision requires you to be proactive. You must ask questions, consult registers, and inform the parties. A failure to inform can be costly: compensation can reach the amount of the loss suffered, sometimes several hundred thousand euros.

Practical advice: before signing a notarised deed, ask your notary if he is aware of particular risks. Ask the question in writing. If he refuses to answer, this may be a fault.

Four tips to avoid this type of dispute

• Demand a risk statement: before any purchase, ask the notary for a document listing known risks (financial, legal, planning). If he does not provide it, insist.
• Check the seller's situation: for a property under construction, consult the commercial register to see if the company is in judicial reorganisation. The notary should do this, but a double check does no harm.
• Have an information clause drafted: in the preliminary agreement, add a clause by which the notary acknowledges having informed the buyer of all known risks. In case of dispute, this protects you.
• Keep all exchanges: keep emails, letters, and meeting minutes with the notary. They can serve as evidence in case of failure to inform.

Further reading: related case law and developments

This 1971 decision has since been confirmed and extended. For example, in a judgment of 13 December 2001 (n° 99-19.911), the Court of Cassation held that the notary must inform the buyer of the existence of a non-apparent easement, even if it does not appear in the documents. The trend is constant: the notary's duty to inform is expanding. Today, there is talk of a duty to warn, similar to that of banks. The courts are increasingly demanding, and notaries must undergo continuous training. For the future, we can expect this duty to also cover environmental risks (polluted soil, natural risks).

Frequently asked questions

1. What if my notary did not inform me of a risk?
You can bring a civil liability action. Gather evidence that the notary knew of the risk (documents, witness statements). Consult a specialist lawyer.

2. Does the notary have to verify the seller's solvency?
No, he has no general duty to verify, but if he has knowledge of financial difficulties, he must inform you.

3. Can I obtain damages if I have lost my property?
Yes, if you prove the notary's fault and the loss. Compensation can cover the loss of value of the property, costs incurred, and sometimes non-pecuniary loss.

4. Does this decision apply to leases?
Indirectly, yes. The notary who drafts a lease must inform the tenant of known risks (e.g. expropriation proceedings). But case law is rarer.

5. What are the time limits for taking action?
The limitation period for a liability action is 5 years from the discovery of the damage. Do not delay.

Are you 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 →