Unpublished promise to sell: can the notary be liable?

Imagine: you own a house in Pessac, you have signed a preliminary sale agreement (promise to sell) with a buyer, but the notary has not yet published the deed with the land registry (formerly the mortgage registry). A few days later, a second buyer appears with a higher offer. The notary completes the sale with this second buyer. The first buyer, furious, sues you. Is it the notary's fault? The Court of Cassation's answer is clear: no, because the unpublished promise is unenforceable (cannot be invoked) against third parties. Analysis.

The facts: a story that happens every day

In 2005, the company Cilaos signed a preliminary sale agreement to acquire a property owned by the X family, in Tiffauges. The notary in charge of the sale was informed of the existence of this preliminary agreement, but it had not been published with the land registry. Shortly after, the municipality of Tiffauges came forward and offered a higher price. The sellers gave in and signed a second preliminary agreement with the municipality. The notary completed the deed of sale in favour of the municipality. Cilaos, ousted, sued the notary for liability (seeking compensation for its loss, i.e., the damage suffered). The Court of Appeal found the notary liable, holding that he had committed a fault by completing the sale despite knowledge of the first preliminary agreement. The Court of Cassation quashed (annulled) this decision.

The reasoning of the court — explained

The Court of Cassation relied on two texts: Article 1382 of the Civil Code (now Article 1240 since 2016) which requires compensation for damage caused by one's fault, and Article 3 of the law of 25 Ventôse Year XI (relating to land registration). In short, for a notary to be liable, he must have committed a fault. However, a notary cannot refuse to execute (draft and receive) a deed of sale that is regularly requested from him, unless there is a legal reason to refuse. An unpublished promise to sell is unenforceable against third parties, meaning it cannot be invoked against a person who was not a party to it. In other words, the notary was not entitled to refuse the sale to the municipality on the ground that a previous preliminary agreement existed, because that preliminary agreement was not enforceable against the municipality. The Court of Appeal had therefore wrongly attributed a fault to the notary. What few people know is that land registration is essential to make a right enforceable against third parties. Without it, even a notarised deed can be circumvented.

What this means for you — practically

If you are a seller: you can accept a better offer after a first unpublished preliminary agreement, but beware of the consequences with the first buyer. You risk being ordered to pay damages (compensation for loss) if you withdraw without a legitimate reason. Example: in Mérignac, a seller had to pay €20,000 in damages for withdrawing after an unpublished preliminary agreement. If you are a buyer: insist that the preliminary agreement be published quickly. Otherwise, you could lose the property. If you are a notary: you must complete the sale if the deed is requested from you, even if you know of a prior unpublished agreement. Your duty is to check the registration, not to block a sale based on an unenforceable right.

Four tips to avoid this type of dispute

• Have your preliminary agreement published without delay: as soon as it is signed, ask your notary to proceed with publication with the land registry. This takes a few weeks but protects you.
• Insist on a suspensive condition: in the preliminary agreement, include a clause making the sale conditional on the absence of any other published promise. This allows you to withdraw if a competing offer appears.
• Check prior registrations: before signing, request a statement of registrations on the property. Your notary can do this.
• If a dispute arises, act quickly: if you are ousted, apply for an interim order (urgent procedure) to have your right recognised. Time limits are short (a few months).

Further reading: related case law and developments

This decision is part of a consistent line: the Court of Cassation protects the notary who executes a deed in the absence of registration. See, for example, Cass. 1st Civ., 12 June 2013, No. 12-18.243, which confirms that the notary does not have to check unpublished promises. On the other hand, if the notary knows of a published promise, he must refuse to execute the deed. The trend is to protect the notary in his role as a public officer, but also to remind of the importance of land registration. In the future, the digitisation of registrations could speed up timeframes and reduce these conflicts.

Checklist before acting

• Have I had my preliminary agreement published? If not, contact your notary immediately.
• Am I an ousted buyer? Consult a lawyer to assess your chances of damages.
• Am I a seller tempted by a better offer? Check whether the first preliminary agreement has been published. If so, you can no longer sell to someone else without risk.
• How long does publication take? Allow 2 to 4 weeks. In an emergency, an accelerated publication procedure is possible.

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 →