Land publicity of court decisions regarding claims to recover immovable property: what the Court of Cassation has said since 1970

Imagine: you have just bought a lovely house in Grasse, with a view of the lavender fields. You are happy, you signed the sale deed at the notary's office, paid the price. But a few months later, a stranger shows up, claiming that the seller was not the true owner. He claims the property. You panic: what if you lose everything?

This situation, more common than one might think, raises a crucial question: from when must a court judgment that challenges your ownership be made public in order to be enforceable against third parties? The Court of Cassation ruled on this as early as 1970 in a judgment that is still authoritative. But what exactly did it decide?

In this article, we will analyse this judgment, understand what it means for you, whether owner, buyer or property professional, and give you the keys to avoid nasty surprises.

The facts: a story that happens every day

We are in the 1960s, in the Grasse region. A certain Mr X had sold two plots to a buyer, but the price had not been fully paid. Moreover, the seller had not obtained the release of a mortgage that still encumbered the properties. In short, the seller remained the official owner in the eyes of the land register.

The buyer, nevertheless, resold the plots to a third party. This third party, believing himself to be the legitimate owner, was then sued by the original seller, who asked the court to declare the sale void and to return the properties to him. This is a claim to recover property (an action by which a person claims ownership of property held by another).

The Grasse court ruled in favour of the seller by a judgment of 16 November 1965. The third-party buyer, who had bought in good faith, found himself expropriated. But the problem lay elsewhere: this judgment, which annulled the original sale, had not been published at the Land Registry. However, according to the law, certain deeds and decisions must be published in order to be enforceable against third parties. The third-party buyer therefore contested, arguing that the unpublished decision could not be enforced against him.

The case went up to the Court of Cassation, which had to determine whether this judgment should or should not be published.

The reasoning of the court — analysed

The Court of Cassation relied on the Decree of 4 January 1955, which governs land registration in France. More specifically, it examined two sets of articles.

On the one hand, Articles 28-4 c and 30-5 of this Decree require the publication of certain court claims and decisions that result in the retroactive annulment (i.e., which cancel a deed as if it had never existed) of deeds subject to registration, for specific causes (such as nullity, rescission, etc.).

On the other hand, Article 28-4 e of the same Decree only requires the publication of decisions relating to claims to recover immovable property (actions by which someone claims ownership of a property).

The question was therefore whether the Grasse court judgment, which upheld a claim to recover property, should be published under Article 28-4 c (because it retroactively annulled the sale) or under Article 28-4 e (because it was a recovery claim).

The Court held that a claim to recover property is a specific action, governed by Article 28-4 e, and that this text is more specific. Consequently, only decisions on recovery claims must be published, and not decisions that retroactively annul a deed, unless they fall within the scope of Article 28-4 c. But note: the Court specified that the publication of claims to recover property is not required by Article 28-4 e, only that of decisions. In other words, a claim to recover property does not need to be published, unlike what Article 28-4 c provides for other actions.

In short, the Court of Cassation distinguished: decisions that annul a deed for causes such as nullity must be published, but those that decide a recovery claim are subject to a special regime and are not subject to the obligation to publish the claim. What matters is the nature of the action: if it is a recovery claim, Article 28-4 e applies; if it is an action for nullity, Article 28-4 c applies.

What few people know is that this distinction has major practical consequences for the security of property transactions.

What this means for you — in practice

For a buyer: if you buy a property, you must check that the seller is indeed the owner. But if a claim to recover the property has been brought against him, it is not published. You cannot therefore discover it by consulting the land register. However, if a decision on a recovery claim is made, it must be published. You will then be informed. But note: if the decision is made after your purchase and not published, it may still be enforceable against you if you learn of it by other means. In practice, it is therefore prudent to check with the seller that no proceedings are pending.

For a landlord owner: if you let a property and your tenant brings a claim to recover it (for example, by claiming to be the owner), be aware that this claim is not published. You will only be alerted if the judgment is given and published. This may give you some time to react.

Let us take a concrete example in Mougins. Suppose Mrs Y buys a villa from a couple going through a divorce. The husband, without his wife's consent, sells the villa, but the wife brings a claim to recover it. If she wins, the decision must be published. But if Mrs Y buys before publication, she runs a great risk. In my practice, I have come across cases where buyers lost their property because they failed to check for the absence of a recovery claim.

For a notary or professional: vigilance is essential. You should always ask for a statutory declaration from the seller regarding the absence of any recovery claim, and check the published decisions.

Four tips to avoid this type of dispute

• Always check the title: before buying, have a full land charges search carried out by your notary. This will reveal published decisions, but not claims. Also ask for a declaration from the seller that no proceedings are pending.
• Require a warranty against eviction: in the sale deed, include a clause by which the seller warrants that he is the sole owner and that there is no claim to recover the property. If a problem arises, you can then pursue him.
• Consult a specialist lawyer: if you have any doubt about the legal situation of a property, a quick consultation can save you years of litigation. Maître Zakine, a property lawyer, can help you.
• Consider legal expenses insurance: it may cover the costs of a recovery claim lawsuit. Check your policy.

Further reading: related case law and developments

This 1970 decision is part of a consistent line of authority from the Court of Cassation. It was confirmed by a later Court of Cassation judgment (Civ. 3e, 13 March 1996, No. 94-13.456) which reiterated that the publication of claims to recover property is not mandatory, unlike that of decisions. However, for actions for nullity, case law has evolved: the Court of Cassation held that a claim for nullity must be published (Civ. 3e, 9 March 2011, No. 10-10.429), which strengthens legal certainty for buyers.

Thus, the trend is towards greater protection of third-party buyers, but with nuances depending on the nature of the action. The 1970 judgment remains a reference for distinguishing recovery claims from other actions.

Key points to remember

• Decisions on claims to recover immovable property must be published in the land register to be enforceable against third parties. Claims, however, need not be.
• Decisions that retroactively annul a deed (nullity, rescission) must be published, as must the corresponding claims (Article 28-4 c).
• If you buy a property, always check for the absence of pending proceedings and published decisions. A land charges search will only inform you about published decisions.
• If a dispute arises, consult quickly with a lawyer to find out whether the decision concerning you must be published. Time limits for appeals are often short.
• The 1970 case law is still relevant and continues to guide the courts.

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 →