THE SUR­VEY SAYS

When buy­ing a prop­erty in France it’s im­por­tant to un­der­stand the dif­fer­ences be­tween sur­veys and di­ag­nos­tic re­ports, and why both are ben­e­fi­cial, ex­plains Matthew Cameron

Living France - - CONTENTS - Matthew Cameron is head of the French le­gal ser­vices team at Ash­tons Le­gal ash­ton­sle­gal.co.uk

Solic­i­tor Matthew Cameron ex­plains the le­gal­i­ties of prop­erty sur­veys and re­ports

The process of buy­ing a prop­erty in France dif­fers in many ways from in Eng­land and Wales, yet there are sim­i­lar­i­ties. When we are ad­vis­ing clients we find it is use­ful to com­pare the two sys­tems, as this of­ten helps to ex­plain what is go­ing to hap­pen, and why.

In re­la­tion to whether to com­mis­sion a sur­vey be­fore pur­chas­ing, our gen­eral ad­vice to clients is that if you would do this in Eng­land, then do so in France. There is no le­gal obli­ga­tion to have a sur­vey in Eng­land, yet it is stan­dard prac­tice to do so, even when buy­ers do not re­quire a mort­gage: lenders in Eng­land in­vari­ably in­sist on at least a ba­sic in­spec­tion, which is not nec­es­sar­ily the case in France.

THE BEN­E­FITS OF A SUR­VEY

It is cer­tainly less com­mon for buy­ers in France to com­mis­sion a sur­vey, yet we reg­u­larly sug­gest buy­ers do so, even though this stands against widely held views that sur­veys are ‘just not done in France’, or it is un­nec­es­sary as the seller has to or­gan­ise a sur­vey any­way.

While it may well be less com­mon, that cer­tainly does not mean it is ‘not done’. There are a num­ber of suit­ably qual­i­fied sur­vey­ors and other prop­erty pro­fes­sion­als through­out France, many of whom will direct their mar­ket­ing to the Bri­tish buy­ing mar­ket.

If you are go­ing to com­mis­sion a sur­vey, this should be car­ried out in ad­vance of sig­na­ture of the first con­tract (which in nor­mal cir­cum­stances will be called the com­pro­mis de vente or promesse de vente). Buy­ers are oc­ca­sion­ally en­cour­aged, if they want a sur­vey, to sign the con­tract first, and have the sur­vey car­ried out while they are in their 10-day cool­ing-off pe­riod. Do­ing this may limit the buyer’s abil­ity to re­view the terms of the pur­chase agree­ment if the sur­vey were to re­veal is­sues of con­cern, and the only op­tion is to ter­mi­nate the pur­chase. Fur­ther­more, if the sur­veyor is not able to com­plete the sur­vey or re­port to you within the 10-day pe­riod, then it may sim­ply prove too late to do any­thing, even if the re­sults are un­sat­is­fac­tory.

Again, the ad­vice must be that if you would carry out a sur­vey on a pur­chase in Eng­land, you would in­evitably do so be­fore the con­tract is signed, and that is ex­actly what you should do in France.

THE DI­AG­NOS­TIC RE­PORTS

It is a re­quire­ment that the seller of the prop­erty must or­gan­ise cer­tain pre-con­tract in­spec­tions, which vary de­pend­ing on the age, lo­ca­tion and type of prop­erty that is to be pur­chased. How­ever these are specif­i­cally lim­ited in scope, and will nor­mally be some­what re­stricted. The in­spec­tor will not be re­quired to move fur­ni­ture, lift car­pets or en­ter locked or hard-to-ac­cess rooms or at­tics. It is im­por­tant to see whether any parts have not been checked, as the in­spec­tor’s guar­an­tee would not cover these.

The in­spec­tions in­clude the fol­low­ing:

EN­ERGY EF­FI­CIENCY

The first is an en­ergy ef­fi­ciency re­port, which must be pro­duced be­fore the prop­erty is mar­keted. Buy­ers will have seen agency par­tic­u­lars for any prop­erty on sale bear­ing the fa­mil­iar en­ergy ef­fi­ciency colour rat­ing, and it is now a re­quire­ment that this be in­cluded from the start. The re­port es­tab­lishes the es­ti­mated an­nual econ­omy rat­ing and car­bon diox­ide emis­sion for the prop­erty.

In ad­di­tion it will in­clude pro­pos­als for im­prove­ments in the over­all ef­fi­ciency. Any pro­posed im­prove­ments would in­clude an il­lus­tra­tive cost/ben­e­fit anal­y­sis, cal­cu­lated by com­par­i­son of the ini­tial cost of any im­prove­ment against the speed with which any sav­ings can be made, and tak­ing into ac­count any tax cred­its that may be avail­able under French law. Nat­u­rally, any tax cred­its would only be avail­able for French tax res­i­dents.

SUR­FACE AREA

If the prop­erty is an apart­ment, or per­haps on some es­tates, then it will prob­a­bly be part of a co-own­er­ship. As such, there will be a cer­ti­fi­ca­tion of the in­ter­nal sur­face area of all hab­it­able parts of the prop­erty. This ex­cludes ar­eas such as stor­age rooms, ski-lock­ers and any hab­it­able parts that are less than 1.8m high. The rea­son for this in­spec­tion is that prop­er­ties in co-own­er­ship are, in the­ory, sold by ref­er­ence to the square me­tre value.

If, within one year of the sale, the buyer es­tab­lishes that the prop­erty is more than 5% smaller than the orig­i­nally de­clared size, they would be able to seek a pro­por­tion­ate re­im­burse­ment of the price. Given the in­spec­tions, such claims are ex­tremely rare now.

TER­MITES

Per­haps the most well known of the in­spec­tions is the ter­mite re­port, which is re­quired in var­i­ous ar­eas of France, pre­dom­i­nantly in the south­ern, warmer re­gions. This re­veals whether there is any ev­i­dence of ac­tive in­fes­ta­tion in the wood­work, ei­ther in­side or out. The in­spec­tor can­not hack into wood to see if the in­sects are bur­row­ing be­neath, but will be look­ing for cer­tain signs as to their pres­ence.

AS­BESTOS

There will be a search to see if any ma­te­ri­als are likely to con­tain as­bestos, and this will be re­quired for prop­er­ties dat­ing from be­fore 1997. How­ever, as­bestos is quite com­mon in many prop­er­ties, and if present its lo­ca­tion should be known. The ma­te­rial can be quite dan­ger­ous if ex­posed and dam­aged in any way, and if it be­comes dam­aged in the fu­ture, it should cer­tainly be stripped out. Some peo­ple pre­fer to clear it out as soon as they pur­chase, al­though this can be quite costly.

LEAD

A search for lead-based paint is re­quired in prop­er­ties built be­fore 1948. This will re­veal if any paint con­tains lead above a cer­tain thresh­old (1mg/cm2), and if that paint­work is in a dam­aged state or oth­er­wise gives rise to any risk of lead poi­son­ing.

GAS AND ELEC­TRIC­ITY

If elec­tri­cal and gas sys­tems are more than 15 years old, these will need in­spec­tion. Any anom­alies iden­ti­fied should be rec­ti­fied by the buyer fol­low­ing com­ple­tion. If those anom­alies were to give rise to a catas­tro­phe in the fu­ture, it is pos­si­ble that in­sur­ers may re­sist in­dem­ni­fy­ing any losses.

NAT­U­RAL RISKS

The ERNMT (the État des Risques Na­turels Miniers et Tech­nologiques, or nat­u­ral risk re­port) is an in­for­ma­tion pack con­firm­ing any recog­nised risks in the vicin­ity. These will of­ten ex­ist – it should come as no sur­prise that many ar­eas in Alpine re­sorts are prone to avalanche… What is im­por­tant to note is

whether the prop­erty in ques­tion may be in a direct risk area, and whether there have been any claims raised for dam­age to it in the past.

DRAINAGE

Where there is a pri­vate drainage sys­tem, this will be in­spected to en­sure it com­plies with cur­rent EU reg­u­la­tions. If not, the buyer will have one year from com­ple­tion to up­grade, and if the prop­erty is not sold, the seller will have four years in which to cor­rect any prob­lems. The cost of in­stalling a new sep­tic tank, if that is needed, can be sub­stan­tial.

KNOWL­EDGE IS POWER

The var­i­ous in­spec­tions that are car­ried out are very in­for­ma­tive. The re­port pack pro­vided by the di­ag­nos­tiqueur – the in­spec­tor – is in gen­eral quite large, al­though much of the in­for­ma­tion will be es­tab­lish­ing the method­ol­ogy em­ployed in the var­i­ous in­spec­tions, any lim­i­ta­tions of re­spon­si­bil­ity, and qual­i­fi­ca­tions and in­sur­ance of the in­spec­tor. An ex­pe­ri­enced re­viewer can, how­ever, ex­tract the rel­e­vant re­port­ing in­for­ma­tion quite quickly.

Given that the search cri­te­ria is strictly lim­ited, these in­spec­tions will not in gen­eral give a view as to the over­all in­tegrity of the

build­ing. If there has been a pre­vi­ous ter­mite in­fes­ta­tion, a buyer would be able to re­quire the seller to pro­duce the ev­i­dence of a treat­ment pro­gramme to erad­i­cate them. How­ever it will not nec­es­sar­ily ex­tend to an anal­y­sis of the ex­tent of any dam­age caused by that pre­vi­ous in­fes­ta­tion. On the other hand, a buyer could ex­pect that in­for­ma­tion from a sur­vey.

The in­spec­tions have vary­ing terms of va­lid­ity, the short­est be­ing the ter­mite re­port that is only valid for six months, while a re­port for as­bestos is valid with­out time limit.

Taken to­gether, the pre-con­tract in­spec­tion re­ports and a struc­tural sur­vey should of­fer a good in­sight into the prop­erty you are look­ing to pur­chase. There is no crit­i­cis­ing a cau­tious ap­proach to the process, so seek­ing a sur­vey in ad­di­tion to the in­spec­tions could be worth­while, just as in­struct­ing a spe­cial­ist solic­i­tor to re­view the le­gal doc­u­men­ta­tion is.

Con­sid­ered to­gether, in ad­vance of sig­na­ture of the con­tract, they may of­fer op­por­tu­ni­ties for fur­ther ne­go­ti­a­tion.

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