Non-disclosed easement in a promise to sell: no fault of the notary (Cass. civ., 25 March 2010)

Imagine the scene: you are the owner of a beautiful house in Parentis-en-Born, with land that opens directly onto the lake. You sign a promise to sell it to a couple of young retirees. The notary drafts the deed, records your declaration that there are no easements (right of way or other burdens affecting the land). The sale is concluded. A few months later, the buyers discover that a right of way allows the neighbour to cross their garden to access the beach. Result: litigation, a claim for damages against the notary. But the crucial question is: was the notary obliged to verify the existence of this easement before drafting the promise?

This question is asked every day by thousands of owners and buyers in the Landes as elsewhere. Should the notary be required to wait for all documents before signing a preliminary contract? The answer given by the Court of Cassation in its judgment of 25 March 2010 (No. 08-20.351) is clear: no. The notary does not have to obtain a property report (a mortgage document listing easements and charges) before the promise to sell, because this preliminary contract is precisely intended to finalise the parties' agreement without waiting for the expiry of the time needed to obtain administrative and mortgage documents. In short, the promise to sell is a conditional commitment: you sign quickly, you check afterwards.

But be careful: this solution is not a blank cheque for notaries. It comes with a strong requirement: the notary must include in the promise a suspensive condition (a clause that suspends the completion of the sale upon the occurrence of an event) protecting the buyer if the seller's declaration proves to be inaccurate. This is what the Court of Cassation reminds us in this case. Let us together decipher this decision, which has immediate practical consequences for every real estate player, whether you are in Capbreton or elsewhere.

The facts: a story that happens every day

Mr X, owner of a building plot in Parentis-en-Born, signs a unilateral promise to sell in favour of the company Sarepa, specialised in property development. The price is set at €300,000, subject to standard suspensive conditions: obtaining a planning permission for a specified net floor area (SHON), and the absence of any easement likely to compromise the development works. The notary, Maître Y, records Mr X's declaration that there are no easements affecting the land.

The promise is signed in March 2005. The planning permission is obtained in May 2005. However, in June 2005, just before the sale is to be completed by a formal deed (final deed at the notary's office), Sarepa learns from the notary himself that a right of way burdens the land, allowing the neighbour to cross the plot to access the public highway. This easement reduces the buildable area and makes the development project less profitable. Sarepa then negotiates a price reduction: a new promise is signed for €250,000, i.e. €50,000 less.

But Sarepa does not stop there. It considers that the notary committed a fault by not discovering the existence of this easement earlier. According to Sarepa, the notary should have, even before the signing of the first promise, obtained a mortgage certificate (an official document listing encumbrances and easements) or, at the very least, verified the buildable area. It sues Maître Y for professional civil liability (claim for damages) before the Tribunal de grande instance of Mont-de-Marsan. It claims the price difference of €50,000, as well as additional costs and moral damages.

The court dismisses its claim. The Court of Appeal of Pau confirms. Sarepa appeals to the Court of Cassation, which will finally decide the matter.

The reasoning of the court — explained

The Court of Cassation had to answer a specific question: does the notary have an obligation to obtain a property report (or mortgage certificate) before drafting a promise to sell? In other words, must he verify the existence of easements or other charges even before the parties have reached their agreement?

For Sarepa, the answer was yes. It relied on Article 1240 of the Civil Code (formerly 1382), which requires any person to compensate for damage caused by their fault. According to Sarepa, the notary, as a legal professional, has a duty to inform and advise. He must ensure that the buyer knows all the essential elements of the property before committing. Yet, the easement is a determining factor of consent. The notary should therefore have disclosed it before the promise.

But the Court of Cassation does not follow this reasoning. It considers that the promise to sell is a preliminary contract whose purpose is precisely to fix the parties' intentions without waiting for the expiry of the time needed to obtain administrative and mortgage documents. In other words, the promise is a quick commitment, conditional on subsequent verifications. Requiring the notary to already have all the documents before the promise would go against the very nature of this deed, which allows a transaction to be 'locked in' without delay.

What few people know is that the Court does not completely exonerate the notary. It specifies that the notary is not at fault as long as he has recorded the seller's declaration attesting to the absence of an easement AND included in the promise a suspensive condition protecting the buyer in case that declaration proves to be inaccurate. In this case, the promise did contain a suspensive condition relating to the absence of easements. The notary had therefore fulfilled his duty to advise: he had provided protection for the buyer if the seller's declaration turned out to be false.

The Court also rejects the argument that the notary should have verified the buildable area. Indeed, the suspensive condition relating to obtaining the planning permission already covered that risk. In short, the notary does not have to anticipate the verifications that will be carried out within the framework of the suspensive conditions.

This decision is a confirmation of previous case law. It reminds us that the notary is not a systematic 'investigator' before the promise, but a drafter who must ensure that the clauses protect the parties. It is part of a pragmatic logic: the promise to sell is a tool for speed, not a final deed.

What this changes for you — practically

For seller-owners: you can sign a promise to sell without having to provide all mortgage documents upfront. Your declaration on honour is sufficient, provided that the notary includes a suspensive condition. This speeds up transactions. Concrete example: in Parentis-en-Born, an owner sells a building plot. He declares that there are no easements. The notary inserts a clause: 'The sale is conditional upon the property not being burdened by any undisclosed easement.' If an easement is discovered afterwards, the buyer can withdraw from the sale or negotiate a price reduction. The seller is not at fault, unless he lied.

For buyers: be careful! You cannot rely solely on the seller's declaration. The suspensive condition protects you, but it does not relieve you from making your own checks. undefined, I have come across cases where buyers in Capbreton discovered after the promise an undisclosed right of way. Thanks to the suspensive condition, they were able to either cancel the sale or obtain a price reduction. But if the suspensive condition is poorly drafted (for example, too vague), you risk being stuck. Have the promise reviewed by a lawyer before signing.

For notaries: the decision confirms that you do not have to obtain a mortgage certificate before the promise. But you must absolutely: 1) obtain a written declaration from the seller regarding easements and charges; 2) draft a precise suspensive condition covering the risks; 3) inform the buyer of the scope of this clause. An omission on these points may engage your liability. For example, if you fail to include a suspensive condition on the absence of easements, you could be ordered to compensate the buyer who suffers damage.

For real estate professionals (agents, developers): know that the promise to sell is an effective tool to lock in a transaction quickly. But do not hesitate to advise your buyer clients to request a mortgage certificate before signing the promise, if time allows. It is not mandatory, but it is prudent. In Capbreton, where properties with sea views are highly sought after, an easement can reduce the value by 10 to 20%.

Four tips to avoid this type of dispute

• Check easements before signing a promise, even if the notary is not obliged to do so. Ask the seller to provide an extract of the cadastral plan and a declaration on honour. If time permits, obtain a mortgage certificate (cost around €30). This will save you from surprises.
• Insist on a clear and precise suspensive condition in the promise. Do not settle for a vague clause like 'subject to the usual easements'. Insist on a wording such as: 'The sale is conditional upon the absence of any easement not declared by the seller and likely to affect the use of the property or its buildability.'
• Keep all written exchanges with the seller and the notary. In case of a dispute, these documents will prove what was said or promised. A simple email can make a difference.
• Consult a specialised lawyer to review the promise before signing. The notary is a professional, but he represents the deed, not your personal interests. A lawyer will advise you on the specific risks of your situation, especially if you are buying to build or renovate.

Further reading: related case law and developments

This decision is part of a consistent line of the Court of Cassation. In a judgment of 13 February 2008 (No. 06-21.660), the Court had already held that the notary is not required to verify the existence of an easement before the promise, provided that a suspensive condition has been included. More recently, a judgment of 12 September 2019 (No. 18-19.765) specified that the notary must inform the buyer of the scope of the suspensive condition and the risks incurred if he waives verification.

However, be careful not to generalise. If the notary has knowledge of an easement (for example, because he has already dealt with the file), he must disclose it, even before the promise. The duty to advise takes precedence over speed. Moreover, if the promise contains no suspensive condition regarding easements, the notary could be at fault. The trend of the courts is to protect the non-professional buyer, requiring the notary to provide full information as early as the preliminary contract.

For the future, the digitisation of mortgage data (land register) could facilitate quick checks. But the current case law remains favourable to the legal security of promises to sell, without imposing an excessive burden on notaries.

What you absolutely must remember

FAQ:

• Must the notary verify easements before the promise to sell? No, the Court of Cassation says he is not obliged to. But he must obtain the seller's declaration and include a suspensive condition.
• What to do if an easement is discovered after the promise? If the promise contains a suspensive condition, you can withdraw from the sale or negotiate a price reduction. Otherwise, you can take action against the seller for fraudulent misrepresentation or against the notary for breach of his duty to advise.
• Can I claim damages from the notary? Yes, if the notary omitted to include a suspensive condition or if he knew about the easement and did not disclose it. But if he fulfilled his obligation, you will get nothing.
• How much does a mortgage check cost? Around €30 for an extract. It is little compared to the risk.
• What is the time limit to act? You have 5 years from the discovery of the defect to bring a liability action (general limitation period).

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