Notary and Planning Permission: When His Liability Is Not Engaged

Imagine: you have just signed a promise to sell for a building plot in Lisieux. Everything seems perfect. The notary has checked the local urban development plan (PLU), the planning certificate is positive. You submit your application for planning permission… and the mayor refuses it. Why? Because your project, in his opinion, does not respect the “character” of the neighbourhood. A subjective assessment, difficult to foresee. Whose fault is it? The notary’s, who should have anticipated this risk?

This is exactly the question that arose in a case decided by the Court of Cassation on 5 December 2000. A seller had promised to sell a plot to a buyer, subject to the condition precedent of obtaining planning permission. The permission was refused, and the buyer sued the notary, alleging that he had failed to inform him of the risks of refusal. The Court of Cassation ruled in favour of the notary, laying down a clear principle: the notary does not have to substitute for the administration in assessing, on the basis of subjective assessments, the chances of obtaining planning permission.

This decision, handed down more than twenty years ago, remains a reference for all property professionals. It precisely delimits the scope of the notary’s liability in planning matters. And it has direct consequences for you, whether owner or buyer. Analysis.

The Facts: A Story That Happens Every Day

In 1992, an owner (Mr Y.) promised to sell a building plot to a buyer (Mr X.), by a deed executed before a notary. The promise was concluded under a standard condition precedent: obtaining planning permission (administrative authorisation to build) for a single-family house project. The notary, as required by his duty to inform (obligation to advise the parties on the scope of the deed), obtained the planning certificate (document indicating the planning rules applicable to the plot) and checked that the project complied with the land use plan (POS, now PLU). Nothing seemed to oppose the project.

But on 5 June 1992, the mayor of the municipality refused planning permission. Reason: the project, although compliant with the written rules of the POS, did not respect the “character” of the neighbourhood – a vague concept, linked to architectural harmony and the environment. The buyer, deprived of his project, turned against the notary. He alleged that the notary had failed to warn him of this subjective risk, and thus had breached his duty of efficacy (duty to draft a deed that achieves its purpose). The Tribunal de grande instance of Caen dismissed his claim. He appealed.

The Caen Court of Appeal upheld the judgment. It held that the notary had fulfilled his duty by gathering the available planning information. Since the refusal of planning permission was based on non-quantifiable and non-measurable criteria – the character of the place – the notary could not have anticipated this risk. The buyer appealed to the Court of Cassation. The Court of Cassation dismissed his appeal by the judgment of 5 December 2000, validating the reasoning of the Caen judges. Thus, the notary does not have to substitute for the administrative authority in assessing subjective appraisals.

The Reasoning of the Court — Analysed

To understand this decision, we must go back to the legal basis of the notary’s liability. Under French law, any professional who causes damage to another by his fault must compensate it (Article 1240 of the Civil Code – formerly 1382). The notary, as a public officer, is bound by a duty to inform and advise (duty to enlighten the parties on the scope of the deed). But this duty has limits. The Court of Cassation reminds us of them here: the notary is not required to substitute for the administration in assessing the chances of obtaining planning permission, when the assessment is based on subjective criteria.

In this case, the notary had indeed checked the planning certificate and the POS. He had therefore gathered “the adequate planning information”. The project was not “obviously contrary to the characteristics of its location”. Therefore, the notary could legitimately think that planning permission would be granted. The refusal, based on the “character” of the neighbourhood, fell within the discretionary assessment of the mayor, which the notary could not have foreseen.

The High Court thus rejected the buyer’s argument that the notary should have “anticipated” this risk. It specified that the duty of efficacy (duty to draft a deed that achieves its purpose) does not require the notary to be a fortune-teller. This solution is in line with constant case law: the notary is not the insurer of the validity of the deed. He must act with diligence and competence, but he cannot guarantee against subjective administrative hazards.

Compared with other decisions, this one is a confirmation. The Court of Cassation had already held, for example, that the notary is not liable if planning permission is refused for a planning reason that was not objectively detectable (Cass. civ. 1ère, 14 March 2000, no. 97-22.078). The 2000 decision goes in the same direction: it distinguishes objective risks (e.g., a plot in a flood zone, a public utility easement) from subjective risks (aesthetic assessment, landscape integration). The notary must inform about the former, not the latter.

What This Changes for You — Practically

This decision has immediate practical implications, depending on your profile.

For the buyer of a building plot: you cannot rely entirely on the notary to anticipate a refusal of planning permission based on subjective grounds. If the project complies with the PLU and the planning certificate is favourable, but the mayor refuses for “harm to the character of the place”, the notary will not be liable. You must, on your own, inquire about neighbouring projects, discuss with the planning department of the town hall, or even apply for a planning permission or an operational planning certificate. For example, in Caen, a buyer had purchased a plot on Rue de Bayeux: his planning permission was refused because his house, too modern, clashed with the old buildings. The notary was not condemned.

For the seller: if you sell a plot with a promise to sell conditional on obtaining planning permission, you are exposed to the failure of the condition. If planning permission is refused, the sale does not go through, and you lose time. To limit this risk, you can insert a more precise clause, defining the grounds for refusal that will release the buyer. For example, stipulate that only refusals based on objective grounds (non-compliance with the PLU, easement) terminate the promise.

For the notary: this decision reassures him as to the extent of his duty. He must check the planning documents, but he does not have to speculate on the mayor’s subjective assessment. In practice, he can advise his client to apply for planning permission before the final signing, or to add a broad condition precedent. But he is not required to go further.

A concrete example: suppose a plot in Lisieux worth €150,000. The buyer incurs €10,000 in architect’s fees and studies. If planning permission is refused on a subjective ground, he loses these fees. He cannot claim them from the notary, unless the notary omitted objective information (e.g., a PLU prohibiting all construction).

If you are in this situation, you must: 1) check the PLU and the planning certificate; 2) consult the town hall’s planning department about local “sensitivities”; 3) consider a condition precedent that covers subjective refusals; 4) if in doubt, apply for planning permission before signing the promise.

Four Tips to Avoid This Type of Dispute

• Consult the town hall’s planning department before signing. An informal interview with the technician can reveal local sensitivities (e.g., the mayor is attached to the “old village” character). This is not a guarantee, but it reduces the risk.
• Obtain an operational planning certificate. This document (issued by the town hall) indicates whether the plot can be built on and what rules apply. It is more reliable than a simple information planning certificate. Cost: free, time limit 2 months.
• Require a broad condition precedent in the promise to sell. Do not settle for “obtaining planning permission in accordance with the project”. Specify that any refusal, even on subjective grounds, releases the buyer. This protects you if the refusal occurs.
• Use an architect familiar with the municipality. A local architect knows what types of projects are accepted. In Caen, for example, certain neighbourhoods like Vaugueux impose a traditional style. The architect will adapt the project, reducing the risk of refusal.

Further Analysis: Related Case Law and Developments

The 2000 decision is part of a line of case law protective of notaries. Already, in a judgment of 14 March 2000 (no. 97-22.078), the Court of Cassation had excluded the liability of a notary who had not pointed out a risk of refusal linked to an ambiguous land use plan. Similarly, in 2005 (Cass. civ. 1ère, 8 November 2005, no. 03-16.612), it held that the notary is not required to inform about a risk of refusal based on considerations of opportunity.

Conversely, the notary remains liable in case of error on an objective point. For example, if he omits to mention a public utility easement (e.g., power line) or if he makes a mistake about the surface area of the plot (Carrez law). The boundary is therefore clear: objective vs subjective.

Since 2000, the trend of the courts has been constant. Judges do not sanction the notary for subjective grounds, but they are increasingly demanding on the verification of objective documents. With the digitisation of PLUs (e.g., Géoportail de l'urbanisme), the notary now has easier access to information. But this does not extend his obligation to the discretionary assessments of the mayor.

For the future, the question could arise with the rise of “architectural charters” or “recommendations” of the ABF (Architects of Buildings of France) in protected areas. These documents, although non-binding, influence decisions. Should the notary consult them? Current case law suggests no, unless the notary has knowledge of a particular risk (e.g., listed area).

Summary and Next Steps

FAQ:

1. Q: Is the notary liable if planning permission is refused after the sale?
   A: No, if the refusal is based on a subjective ground (character of the place, aesthetics). The notary must have checked the objective documents (PLU, planning certificate).
2. Q: Can I cancel the sale if planning permission is refused?
   A: Yes, if the promise to sell contains a condition precedent of obtaining planning permission. In that case, the sale is cancelled and deposits are returned.
3. Q: What are the time limits for taking action against the notary?
   A: The limitation period is 5 years from the discovery of the damage (Article 2224 of the Civil Code). In practice, as soon as the planning permission is refused, you have 5 years to sue.
4. Q: What is the cost of a liability action against a notary?
   A: Lawyer’s fees vary, but expect between €2,000 and €5,000 for a first instance proceeding. If you lose, you may be ordered to pay costs (court fees). Legal protection insurance may cover these costs.
5. Q: What should I do if my notary neglected to check the PLU?
   A: You can bring a liability claim against him for breach of his duty to inform. Keep all documents (promise, planning certificate, refusal of planning permission) and consult a solicitor specialising in property law.

Checklist if you are buying a building plot:

• ☐ Obtain an operational planning certificate
• ☐ Check the PLU and verify easements
• ☐ Meet with the town hall’s planning department
• ☐ Use a local architect
• ☐ Include a broad condition precedent in the promise
• ☐ Consider submitting a planning application before the final signing

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