Can a solicitor be held liable for cancellation of the sale of land due to a non-existent right of way?
“Congratulations! You’ve just purchased a beautiful piece of land! But, you can’t access it because the seller lied to you.” What can be done? This summer, recent case law from the Court of Cassation gave an unprecedented example of potential professional liability for solicitors.
In a ruling issued on 21 June, the Court of Cassation reviewed a request to cancel the sale of a plot of land due to the non-existence of a right of way on the servient estate.
In this case, the bill of sale mentioned a prior operation in which the previous owners indicated that the neighbouring plot was bound by a contractual right of way. Any owner of a landlocked plot, meaning one without access to a public road, can invoke the right of disenclavement by requesting the use of neighbouring land to reach their property.
When the sale was written up, the buyers made their agreement contingent on the existence of this contractual right of way.
However, after the sale, the buyers were quickly disillusioned when they realised that no right of way existed on the neighbouring land. In other words, it was impossible for them to access their plot. After discovering this, the buyers went to court to request cancellation of the sale since their agreement to purchase had been invalidated by false information from the sellers. Their request was granted.
What was the solicitor’s responsibility in all of this?
The Court of Cassation cancelled the sale because it considered that an essential element of the property was defective in the sense of Article 1133 of the French Civil Code (contract nullity). But was it the solicitor’s duty to verify the seller’s false declarations?
Based on Article 1382 of the French Civil Code, case law has established a solicitor’s practically absolute obligation to provide advice and information.
This obligation states in particular that the solicitor is responsible for a minimum of due diligence regarding the declarations made by both the purchaser and the seller. Case law endeavours to determine if the solicitor could have carried out such verifications in the normal exercise of their duties.
This is the question: was the solicitor able – and consequently, obliged – to verify if the right of way mentioned by the seller was real?
Rights of way are generally contractual, meaning subject to an agreement between the two property owners, and thus recorded in the deeds register. Verifying the right of way with this entity would undoubtedly have revealed the seller’s falsification. However, current case law establishes that such due diligence seems to be the solicitor’s responsibility.
But what can be claimed from the solicitor?
It’s true the bill of sale was cancelled, but are the sellers still able to return the sale price paid or have they simply squandered it?
The story doesn’t say, but the buyers could probably at least claim any losses that the sellers could not (or could no longer) repay themselves from the solicitor if he were negligent or at fault.
This might include the unreturned purchase price (or the balance), as well as the costs of the legal proceedings and their discharge, the loss of opportunity to acquire another property that met their requirements, or even psychological damage caused by being involved in a long, costly and unpredictable legal process after having been swindled by sellers who were, at the very least, dishonest.
Laurent MICHEL, Finance & Services Loss Adjuster
Marie LEYENDECKER, Finance & Services Loss Adjuster