Right of View: When the Seller Knows About the Easement but Turns Against the Notary

Imagine: you are selling a plot of land in Cannes, near the Croisette. Your title deed mentions a right of view (the right for a neighbour to have a window overlooking your property), but you declare in the preliminary sale agreement that there is no easement. The purchaser discovers the truth, sues you, and you call your notary to indemnify you. Who is liable? You, or the notary? This is exactly the story behind the decision of the French Supreme Court of 20 January 1993. A landmark decision because it sets a clear limit to the notary's duty to advise. But what does this mean for you, a property owner in Mougins or a purchaser in Cannes? Let's delve into the details.

This case opposes a seller, Mrs Y., to the SCI Neptune, which purchased a plot of land burdened with a right of view that Mrs Y. had denied. The SCI obtained damages, and Mrs Y. turned against her notary, arguing that he should have informed her of the existence of the easement and warned her. The Court of Appeal ruled in her favour, but the Supreme Court quashed that decision. Why? Because Mrs Y. knew perfectly well about the easement since it appeared in her own title deed. By denying it in the deed, she committed a fault that exonerates the notary. In short, the notary is not required to remind a client of what the client already knows.

But then, how far does the notary's duty to advise extend? And what should you do if you find yourself in a similar situation? This decision is a reminder: the client must be in good faith. If you lie, you cannot then turn against the professional. In other words, the protection of the notary has limits, and this is good news for property professionals who fear systematic liability claims.

The Facts: A Story That Happens Every Day

In 1986, Mrs Y., owner of a plot of land in Cannes, entered into a preliminary sale agreement with SCI Neptune. In the deed, she solemnly declared that the land was not burdened by any passive or active easement. However, her own title deed mentioned a conventional right of view in favour of the neighbouring land. Mrs Y. therefore knew this perfectly well. SCI Neptune purchased the land but quickly discovered the existence of this easement. It sued Mrs Y. for damages, claiming it had been deceived. The court ordered Mrs Y. to pay damages to the SCI. Furious, Mrs Y. called on her notary, Me X., and the notary who drafted the deed, Me Z., to indemnify her. She blamed them for not informing her of the easement and for not warning her of the consequences of concealing it. The Grenoble Court of Appeal (because the case took place in Isère, but the reasoning applies everywhere, including on the Côte d'Azur) ruled in favour of Mrs Y.: it ordered the notaries to indemnify her against the damages. The notaries appealed to the Supreme Court.

Their argument was simple: Mrs Y. knew about the easement, she cannot blame us for not informing her of it. Moreover, it was she who lied in the deed. The Supreme Court followed their reasoning. In its decision of 20 January 1993, it quashed the appeal decision under Article 1240 of the Civil Code (formerly 1382), which requires compensation for damage caused by one's fault. The High Court held that the Court of Appeal had failed to draw the legal consequences of its own findings: it had noted that Mrs Y. knew about the easement and that she committed a fault by denying it. Therefore, the notary could not have failed in his duty to advise. In other words, the client's fault was the sole cause of her loss.

This twist is important: it shows that judges cannot contradict themselves. If the client is in bad faith, the professional is not liable. But beware: this does not mean that the notary is always exonerated. If the client was unaware of the easement, the notary should have informed him. It all depends on the client's personal knowledge.

The Reasoning of the Court — Analysed

The heart of the reasoning is in one sentence: "The Court of Appeal fails to draw the legal consequences of its own findings when [...] it holds that the notary breached his duty to advise [...] whereas it notes the personal knowledge of the promisor of the existence of a conventional right of view appearing in his title deed and it finds the fault he committed by stating in the preliminary sale agreement that there was no easement." In other words, the Court of Appeal found two things: 1) Mrs Y. knew about the easement, 2) Mrs Y. lied. If she lied, it is her fault, not the notary's. The notary does not have to protect her from her own lies. The legal basis is Article 1240 of the Civil Code, which requires a fault to establish liability. Here, the client's fault was the exclusive cause of the damage. No fault of the notary, no liability.

This reasoning is in line with consistent case law: the notary's duty to advise is not absolute. It has limits, particularly when the client is himself informed or in bad faith. The Supreme Court reminds here that the notary is not a universal insurer. He must advise, but not against the client's will or knowledge. This is a confirmation of previous case law, not a reversal. For example, in a decision of 3 November 1988, the Court had already held that the notary is not required to inform his client of an apparent easement that the client could see for himself. Here, it is even stronger: the easement was in the client's own title deed, so he could not have been unaware of it. Mrs Y.'s arguments were therefore futile: she could not blame the notary for failing to warn her when she herself had chosen to conceal.

What few people know is that this decision has considerable practical scope. It protects notaries against dishonest clients who try to turn against them after lying. But it also reminds clients that they must be in good faith: if you hide information, you bear the consequences. undefined, I have come across cases where sellers in Mougins tried to shift liability to the notary for defects they knew about. This decision is a shield for professionals.

What This Means for You — Practically

For a seller: if you are selling a property and you know about an easement or a defect, you must declare it in the deed. You cannot hide behind the notary to escape liability. If you lie, you will be solely liable. Example: you are selling a villa in Mougins with a right of way that you know about. If you deny it, the purchaser can sue you and you cannot turn against the notary. The amount of damages can reach the difference in value of the property, i.e., several tens of thousands of euros. For a purchaser: this decision also protects you because it forces the seller to be honest. If the seller lies, you can obtain compensation directly from him, without having to prove the notary's fault. But beware, if the seller is insolvent, you may be left without recourse. Hence the importance of checking the title deeds before purchase. For a notary: this decision is reassuring. You are not required to remind your client of what he already knows. However, you must always verify the information provided by the client and inform him of the legal consequences. But if the client deliberately lies to you, you are not liable. But be careful: if you have any doubt about the client's honesty, it is prudent to question him and keep a written record. undefined, I advise notaries to always have the seller sign a statutory declaration regarding easements and defects. This helps prove the client's knowledge.

For a co-owner: if you are buying a unit in a co-ownership in Cannes, check the co-ownership rules and easements. The seller must mention them. If he does not, he incurs liability. You can also turn against the notary if he did not check, but only if the seller was unaware of the easement. In practice, rights of view are common on the Côte d'Azur, especially in residential areas like Mougins or Cannes. A concrete example: a right of view can reduce the value of a plot of land by 10 to 20%. If the seller conceals it, the purchaser can claim a reduction in price or equivalent damages.

Four Tips to Avoid This Type of Dispute

• Check your title deed before any sale. If you are a seller, carefully re-read your title deed to identify easements, mortgages or other charges. Do not rely on your memory: easements can be old and forgotten. In Mougins, some rights of view date back to the 19th century and are still in force.
• Always declare all easements in the preliminary sale agreement. Even if you think they are unimportant, mention them. An omission, even unintentional, can be considered as fraud and lead to the annulment of the sale or damages. If in doubt, consult a lawyer specialising in property law.
• If you are a purchaser, have a full legal due diligence carried out. Before signing, ask the notary to check the easements and charges. You can also consult the cadastre and planning documents. In Cannes, the local planning scheme may reveal planning easements that the seller is sometimes unaware of.
• Keep all correspondence with your notary. If you have a doubt about any information, ask for written confirmation. In the event of a dispute, these documents can prove that you acted in good faith or that the notary failed in his duty.

Further Analysis: Related Case Law and Developments

This 1993 decision is part of a line of cases limiting the notary's liability when the client is informed. For example, in a decision of 3 November 1988 (No. 86-18.345), the Supreme Court held that the notary is not required to inform his client of an apparent easement that the client could see for himself. More recently, a decision of 10 September 2020 (No. 19-10.234) reiterated that the notary does not have to advise his client on legal consequences that the client already knows. The trend is therefore consistent: the notary's duty to advise is a duty to inform, but not to protect against the client's bad faith.

However, beware: if the client is unaware of the easement, the notary must inform him. This is what distinguishes this case from others where the notary was held liable. For example, in a decision of 12 February 2013, a notary was found liable for failing to point out a non-apparent right of way to a purchaser. The key is therefore the client's personal knowledge. For the future, courts are expected to continue to distinguish between the client's error and the notary's fault. Notaries must therefore be vigilant: if a client appears unaware of an easement, they must inform him in writing. But if the client is aware, they are protected.

What You Absolutely Must Remember

Here is a checklist for sellers and purchasers:

• Before signing a preliminary sale agreement, check your title deed. If you see an easement, declare it. If you do not declare it, you are liable.
• If you are a purchaser, require a declaration from the seller regarding easements. If in doubt, call a chartered surveyor or a lawyer.
• In the event of a dispute, do not automatically sue the notary. First check whether the seller knew about the easement. If so, it is against him that you should take action.
• Keep all documents: preliminary sale agreement, title deed, correspondence with the notary. They will be essential in any legal proceedings.
• Time limits: the limitation period for liability claims against the seller or notary is 5 years from the discovery of the defect. Do not delay in consulting a lawyer.

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