Liability of the Notary: When Their Error Makes You Lose Your Property

Imagine: you buy a flat in Sophia-Antipolis, in a building undergoing renovation. The seller promises you modernised units with a renovated facade. You sign before the notary, confident. But a few months later, the town hall tells you that the internal fitting-out works required planning permission – and it is refused. Your property is in ruins, unsellable, uninhabitable. Who is liable? The seller? The builder? Or the person who should have warned you: the notary?

This question was decided by the Court of Cassation in 1989 in a landmark ruling (No. 87-17.383). It held that the notary, by failing to inform the buyer of the need to obtain planning permission, committed a fault giving rise to liability. Better still: this liability is not secondary – the notary cannot hide behind other wrongdoers. He must compensate the whole loss.

This decision is a turning point for any owner, tenant or property professional. It reminds us that the notary is not a mere recorder of signatures: he is the guarantor of the legal security of your acquisition. And when he fails, he pays. Analysis.

The facts: a story like many

In 1978, a company (SFRF) undertook the renovation of an old building. It sold to buyers – the Chardon couple – several leasehold flats. The deed of sale mentions planning permission obtained in September 1978 for the reconstruction of the facade. But nothing is said about the internal fitting-out works (partitions, plumbing, electricity…). However, a document annexed to the deed, which the notary had omitted to include, stated that these fittings also required planning permission. SFRF never applied for it. Result: permission is not obtained, the units are delivered completely demolished, uninhabitable. The buyers, deprived of their property, sue the notary for liability.

Before the Court of Appeal, the notary tries to defend himself by invoking the fault of the seller (SFRF) and the builders. But the court condemns him: he should have informed the buyer of the need for permission, even if the seller had not. The notary appeals to the Court of Cassation, arguing that his liability can only be secondary – that is, he should only pay after the other wrongdoers. The Court of Cassation dismisses his appeal.

The reasoning of the court – dissected

The Court of Cassation upholds the reasoning of the Court of Appeal. It relies on Article 1240 of the Civil Code (formerly 1382), which provides that "any act of man which causes damage to another obliges the person by whose fault it occurred to repair it." In clear terms, whoever commits a fault must compensate the loss they directly caused.

In this case, the notary failed in his duty to inform and advise. He should have verified that all necessary permissions were obtained or, failing that, informed the buyer. By not doing so, he left the buyer in ignorance of the risk of permission being refused. This refusal is the direct cause of the loss of the property. Therefore, the notary is directly liable.

But the key argument is the non-secondary nature of his liability. The notary argued that others (the seller, the architect) had also been at fault, and that he should only pay as a last resort. The Court dismisses this: the notary's liability is personal and direct. He cannot hide behind other co-authors. In other words, the victim can choose to sue only the notary, and the notary must indemnify the entire loss. He can then seek contribution from the other wrongdoers, but that is his affair.

This reasoning is a classic application of the principle of civil liability: each author of a fault is jointly and severally liable with the others, but the victim can claim the whole amount from any one of them. What few people know is that this decision strengthened the notary's duty to advise, requiring increased vigilance regarding planning permissions.

What this means for you – practically

If you are a buyer of a property, this decision protects you. The notary must inform you of all necessary authorisations (planning permission, prior declaration, etc.) before the sale. If he does not and you suffer loss, he must compensate you. For example, a couple buying in Le Cannet discovered after the sale that the extension they planned was impossible without permission. The notary had not checked the local PLU. Result: the notary had to pay €50,000 in damages to compensate for the reduction in value.

If you are an owner-landlord, be vigilant: if you sell a property with unauthorised works, you could also be sued. But the notary has a duty to warn. undefined, I have seen cases where the notary had to pay because he had not flagged a non-compliant permission.

If you are a tenant, this concerns you indirectly: your landlord must inform you of planned works. But if the notary gave bad advice to your landlord at purchase, it could affect your enjoyment of the premises.

However, note: this decision does not mean the notary is liable for everything. You must prove that his omission was the direct cause of the loss. For example, if permission would have been refused anyway even with information, the causal link may be broken.

Four tips to avoid this type of dispute

• Demand the full list of planning permissions: Before signing, ask the seller and the notary for all planning permissions, prior declarations and planning certificates. Check that they cover the works carried out or planned.
• Instruct a solicitor specialising in property law: For a complex acquisition (renovation, subdivision, etc.), a solicitor can identify risks that the notary might have overlooked. It is an investment that can save you from much heavier losses.
• Check the Local Plan (PLU) of your municipality: In Sophia-Antipolis as in Le Cannet, planning rules vary. Consult the town hall's planning department to find out if your works require permission.
• Keep all documents annexed to the deed: If the notary omits to attach a document, you can prove his negligence. Ask for a copy of the entire file.

Further reading: related case law and developments

The 1989 decision is part of a consistent line of the Court of Cassation. Already in 1986 (ruling No. 84-16.707), it held that the notary must verify the conformity of works with planning rules. And in 1995 (No. 93-16.081), it extended this duty to the obligation to advise on easements. The trend is clear: the notary is a legal professional, bound by an obligation of result regarding information.

Since then, the ALUR law of 2014 has strengthened information requirements in property sales (surveys, floor area, etc.). But the principle remains the same: the notary must anticipate legal risks for his client. This 1989 decision is therefore still relevant, and the courts apply it regularly.

What you must absolutely remember

• The notary is liable for his failure to inform: If he forgets to tell you that permission is needed, you can sue him.
• His liability is not secondary: You can sue him directly, without waiting for another wrongdoer.
• You must prove the causal link: The lack of information must be the direct cause of your loss.
• Act quickly: The limitation period is 5 years from the discovery of the damage (Article 2224 of the Civil Code).

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