Liability of a notary: no subsidiarity, one fault is enough to obtain compensation

Imagine: you have just bought a house in Mehun-sur-Yèvre, a pretty village in the Cher. You signed the deed before the notary, everything seems in order. But a few months later, your neighbour takes you to court: your fence encroaches onto his land by a few centimetres. You are furious, you thought the notary had checked the boundaries. You then discover that the sale deed mentioned an incorrect area. You lose the case and have to demolish the fence and pay damages. Whose fault is it? The notary's, of course. But your opponent tells you: 'You should have defended yourself by raising the notary's error during the proceedings; now it is too late.' The question is: can the notary hide behind your negligence? The judgment of the Court of Cassation of 22 September 2016 clearly answers: no. The notary's liability is not subsidiary. Analysis.

The facts: a story like many others

Mr X, an owner in Saint-Amand-Montrond, had bought a plot of land with a house. The sale deed, drawn up by a notary, indicated an area of 1,200 m². After the sale, Mr X built a swimming pool and a garden shed. The neighbour, Mr Y, then sued Mr X, claiming that the construction encroached onto his plot. Indeed, a surveyor revealed that the actual area of Mr X's land was only 1,180 m², and that the swimming pool encroached by 20 cm onto Mr Y's plot. Mr Y demanded the demolition of the swimming pool and damages. During the proceedings, Mr X never raised the argument based on the encroachment due to the error in the notarial deed. He lost the case and had to demolish the swimming pool and pay €15,000 to Mr Y. Subsequently, Mr X sued the notary for liability to obtain compensation for his losses (cost of demolition, damages paid, legal costs). The notary replied: 'You should have invoked my fault during the proceedings against the neighbour to limit your loss. You did not do so, so I owe nothing.' The lower courts sided with the notary, holding that the notary's liability was subsidiary: the victim should have used the defences available to them. But the Court of Cassation quashed that decision.

The reasoning of the court — explained

The Court of Cassation relies on article 1240 of the Civil Code (formerly article 1382), which states: 'Any human act whatsoever which causes harm to another obliges the person by whose fault it occurred to make reparation.' It recalls that the notary's liability is a professional liability, based on their duty to ensure the legal effectiveness of the deed they prepare. This duty includes checking the boundaries and the area. In this case, the notary committed a fault by mentioning an incorrect area, which led to the encroachment. The direct loss of Mr X is the order to demolish and to pay. The Court specifies that the fact that Mr X could have invoked the notary's fault as a defence during the proceedings against the neighbour (for example, to seek a reduction in price or compensation) does not change anything. The notary's fault is the direct cause of the loss, and the victim does not have to exhaust all remedies against the third party before suing the professional. In other words, the notary's liability is not subsidiary. This is not an evolution but a confirmation of case law: the Court of Cassation had already ruled in this sense in 2013 (no. 12-20.991). However, this decision is important because it firmly restates the principle, even in the case of a minor encroachment (20 cm) where the neighbour had no obvious interest in seeking demolition. The judges considered that even a minor encroachment may justify demolition, and that the notary must answer for their fault.

What this changes for you — concretely

Concretely, this decision is excellent news for any owner, buyer or co-owner who suffers harm due to a notary's error. If you are in this situation, you should know that you can sue the notary directly, without having to prove that you tried everything to defend yourself in the initial proceedings. For example, if you buy a flat in Saint-Amand-Montrond and the deed mentions an area of 80 m² when it is actually 75 m² (error of 5 m²), and this causes you harm (for example, a loss in value on resale), you can claim the difference in value from the notary, even if you could have negotiated a price reduction with the seller. However, note that this case law does not exempt you from proving the notary's fault (the error in the deed) and the direct loss. Furthermore, the notary can still invoke the victim's fault to reduce their liability (for example, if you yourself provided incorrect information). But in the classic scenario where the notary has poorly checked the documents, their liability is engaged. The limitation period for taking action is 5 years from the discovery of the loss (article 2224 of the Civil Code). In terms of amounts, a notary can be ordered to compensate the entire loss: demolition costs, loss of value, legal costs, and sometimes damages for loss of enjoyment. In my practice, I have encountered cases where the notary had to pay several tens of thousands of euros.

Four tips to avoid this type of dispute

• Check the documents before signing: Do not rely solely on the notary. Request a boundary survey (precise delimitation of boundaries) by a chartered surveyor before buying a plot, especially if you plan to build. In Mehun-sur-Yèvre, plots are sometimes poorly registered.
• Keep all documents: Keep the sale deed, plans, reports, correspondence carefully. In the event of a dispute, these documents are essential to prove the notary's fault.
• In case of legal proceedings, inform your lawyer of all errors: If you are sued by a neighbour, immediately mention any anomaly in the notarial deed to your lawyer. Even if you are not required to invoke it to preserve your claim against the notary, it may help you limit your loss.
• Consult a specialist lawyer at the first signs: As soon as you have a doubt about an error in the deed, or if you receive a summons, seek advice. A lawyer can assess the chances of success against the notary and advise you on the strategy to adopt.

Further reading: related case law and developments

This decision is part of a consistent trend of the Court of Cassation to hold notaries accountable. Already in 2013 (no. 12-20.991), the Court had held that the notary's liability is not subsidiary. More recently, in 2020 (no. 19-11.920), it confirmed that the notary must check the condition of the property (in particular, easements). What few people know is that this case law also applies to lawyers, bailiffs and other legal professionals. In short, the courts consider that these professionals have a duty to advise and ensure legal effectiveness, and they cannot hide behind an alleged subsidiarity. This means that, for the future, victims of notarial errors will be able to obtain compensation more easily, without having to multiply proceedings. However, one must remain vigilant: the notary's fault must be established, and the loss must be direct and certain.

Checklist before taking action

• Have I clearly identified the notary's fault? (e.g., error in area, omission of an easement, failure to check boundaries)
• What is my loss? (demolition costs, loss of value, damages paid, legal fees)
• Is the 5-year limitation period respected? The limitation runs from the discovery of the loss. If the proceedings with the neighbour took place more than 5 years ago, you may be time-barred.
• Do I have evidence? Sale deed, surveyor's report, court decision, invoices.
• Have I consulted a specialist lawyer? Only a lawyer can assess your chances and initiate proceedings.

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