Notary Liability: The Duty to Inform on the Expiry of a Planning Permission

You have found the ideal plot near Gien, with a breathtaking view of the Loire. The seller assures you that the planning permission is still valid. You sign before the notary, confident. A few months later, nasty surprise: the permission has expired, and you can no longer build. Who is liable? The seller? The notary?

This question was decided by the Court of Cassation on 12 November 1987 in a decision that remains authoritative. It concerns the notary's duty to inform, particularly regarding the expiry of a planning permission. And the answer is unequivocal: the notary must inform the parties, even if the buyer is himself a knowledgeable municipal councillor.

In this article, I explain the facts of this case, the judges' reasoning, and what it means for you, whether you are a buyer, seller, or property professional in Orléans or elsewhere.

The Facts: A Story That Happens Every Day

It all begins in 1977. A plot in Châteaulin (Finistère) is granted planning permission on 21 January 1978, extended for one year from 23 September 1978. On 26 June 1979, Mr and Mrs Z... purchase this plot from the initial seller and obtain a transfer of the planning permission into their names.

But on 23 September 1979, the permission becomes void. Mr and Mrs Z... are unaware. They cannot build. They then sue the notary who prepared the sale deed, alleging that he failed to inform them of the imminent expiry date and did not make enquiries himself if in doubt.

The notary defends himself by invoking the buyer's personal expertise: Mrs Z... was deputy mayor of Châteaulin and a member of the town planning committee. She should have known the rules, according to him. The Rennes Court of Appeal ruled in favour of Mr and Mrs Z..., and the Court of Cassation confirmed in 1987.

The Court's Reasoning — Explained

The Court of Cassation relies on Article 1240 of the Civil Code (formerly 1382), which establishes the principle of civil liability: "Any act of a person which causes damage to another obliges the person through whose fault it occurred to make reparation."

For the judges, the notary was at fault by not accurately informing his client of the expiry date of the permission. If there was any doubt, he should have enquired with the administration himself. It does not matter that the buyer held municipal office: the notary is a legal professional bound by a duty to inform and advise.

This decision confirms earlier case law. As early as 1963, the Court of Cassation had established the principle of the duty to inform the parties (Civ. 1st, 4 June 1963). But here, it goes further: even a well-informed client must be informed. No personal knowledge relieves the notary of his duty.

The notary's arguments (buyer's expertise, absence of request) were rejected. The fault is characterised by the failure to verify and inform.

What This Means for You — In Practice

For buyers of building land, this decision is a shield. If the notary fails to alert you that the planning permission is about to expire, you can hold him liable. For example, in Orléans, a client bought a serviced plot for €80,000. The permission was due to expire three months after the sale. The notary said nothing. Result: unable to build for two years, the time needed to obtain a new permission. The loss (loss of rental value, administrative costs) was estimated at €15,000.

For sellers, be transparent: if you know the permission is about to expire, mention it in the deed. Otherwise, you could be sued for fraudulent concealment (dol).

For notaries, the lesson is clear: systematically verify the validity of the planning permission, even if the buyer is an elected official. A simple call to the town hall or consultation of the planning certificate may suffice.

For property professionals (agents, developers), this decision reminds you not to rely on your client's presumed expertise. Inform them in writing.

Four Tips to Avoid This Type of Dispute

• Require a planning certificate before the sale. This official document indicates applicable planning rules and the validity of permissions. Request it from the town hall.
• Include a condition precedent in the preliminary contract. For example: "The sale is conditional on obtaining a valid planning permission or an extension of the existing permission."
• Question the notary in writing. Before signing, ask precise questions: "Is the planning permission still valid? On what date does it expire?" Keep a written record.
• Do not assume anything. Even if you are a local elected official or professional, have it checked by an expert. Case law protects you, but prevention is better.

Further Reading: Related Case Law and Developments

This decision is part of a consistent line of authority. As early as 1963, the Court of Cassation had stated that the notary must inform the parties of the scope of deeds (Civ. 1st, 4 June 1963). Later, in 1995, it specified that the duty to advise extends to all useful elements, even those outside the deed (Civ. 1st, 13 June 1995, No. 93-12.905).

The trend is towards strengthening notarial liability. Courts no longer hesitate to find notaries liable for breach of their duty to inform, even when the client is a professional. However, note: in 2005, the Court of Cassation mitigated this strictness in cases of contributory negligence by the victim (Civ. 1st, 8 November 2005, No. 02-18.288). If the buyer had obvious personal knowledge of the risk, his own fault may reduce compensation.

For the future, digitalisation of deeds may facilitate checks. But the duty to inform remains a cornerstone.

What You Absolutely Must Remember

Practical FAQ

1. What should I do if I bought a plot and the planning permission has expired?
Contact a solicitor specialising in property law. You can hold the notary liable, and possibly the seller. The limitation period (Article 2224 of the Civil Code) is 5 years from the discovery of the damage.

2. Can I obtain compensation?
Yes, if the notary breached his duty to inform. Compensation covers the loss of chance of not having bought or of having negotiated a price reduction. For example, in Gien, a client obtained €10,000 for loss of chance.

3. What is the cost of legal action?
Solicitor's fees vary, but an initial consultation with Maître Zakine costs €45. In the event of a trial, expect €1,500 to €5,000, often recoverable if you win (Article 700 of the Code of Civil Procedure).

4. Can the seller be held liable?
Yes, if he concealed the expiry. This constitutes fraudulent concealment (dol), which can lead to annulment of the sale or damages.

5. Is there a simple way to check the validity of a permission?
Ask the town hall for a certificate of no opposition and an extract from the planning register. You can also consult the website service-public.fr.

Are you in a similar situation? An initial 30-minute consultation with Maître Zakine (€45) could save you months of litigation — and often much more. Book an appointment →