It is a little known fact that objects and animals placed by an owner of property for the service and exploitation of that property are regarded under French law as ‘immovable’ and as such transfer across to a purchaser. Although a somewhat extreme example, what is, by law, included in the sale of a property in France, and what condition should a purchaser expect to find it in at completion?
The law classifies possessions into two main categories: movable and immovable. In the context of property sales, land and buildings are immovable and broadly speaking everything else, such as furniture, is movable and excluded from any sale. French law however is very prescriptive as to what constitutes immovable and movable property.
Article 1583 of the French Civil Code provides there is a binding agreement for sale as soon as the parties are agreed on the ‘thing’ and the price but what, in practice, does this mean? The starting point is that the property must be identified or identifiable. The postal address and a description of the property is sufficient for a binding contract to be created, which is why it is always wise for a prospective purchaser to preface any offer on the condition that it is subject to a full sale contract (compromis de vente) being entered into. In a sale contract, a description of the property should also include a room by room description, the total surface area and any features of the property or on the land. For off-plan purchases and apartments, there are other obligations imposed for determining what is being sold.
Beyond the description, there are provisions in a number of the French Codes that help determine what is or is not included in a sale. Perhaps the most helpful is Article 1615 of the Civil Code which states literally: “the obligation to deliver the thing includes its accessories and all that was designed for its perpetual use.” With the insight provided by judicial interpretation of this and other provisions, three main areas can be identified:
(a) Incidental property and rights
In addition to tangible items which are physically attached to the property, certain intangible rights are also included. For example, the Insurance Code provides that the vendor’s insurance policy against fire risk is transferred to the purchaser, although the purchaser can terminate it. Any obligations given by the vendor in relation to State grants to renovate a property are transmitted to the purchaser. As a general rule, easements (such as rights of way affecting the land) and covenants are regarded as attached to it and transfer to a purchaser.
(b) Property immovable by its nature
Land and buildings are immovable by their nature. Fruit hanging on trees and other crops not yet harvested are also immovable by nature and thus included in any sale!
(c) Property immovable by its purpose
Article 524 provides that “animals and things that the owner of a tenement placed thereon for the use and working of the tenement are immovable by purpose”. This includes, for example, beehives, grape/apple presses, boilers, stills, vats and barrels. Article 524 also provides that: “all movables which the owner has attached to the tenement for permanent use in it are also immovables by purpose”. The Courts have held that ‘attached’ must mean clearly and permanently attached to the building whereby removal would result in damage to the building and a loss of character and charm. Thus, a fitted kitchen screwed to the wall that can be removed without damage was held not to be included in the sale. Conversely, a fitted kitchen that was integrated to the property by means of tiling was included.
As a general rule, movable property (providing it is not permanently attached to the building) remains the property of the vendor. For it to be otherwise, there would have to be an express provision, which is why if any furniture is being purchased, it must be accurately listed in the sale contract. However, any movable property which is designed to be used for the purpose of the building is sufficient to render it part of the property sold. An example would be any door keys, bathroom fittings (such as toilets), fitted furniture and heating installations although there are cases where electric radiators have been held to be both immovable (a 2001 case) and movable (a 1981 case). A television aerial has been held not to be included (a 2000 case).
Not surprisingly, there has been a considerable amount of litigation in this area. It is vitally important therefore that after having visited the property, the parties agree on exactly what is or is not included. ‘Standard’ sales contracts very often modify the above provisions and not always to the benefit of a purchaser, which is why it is so important to set out the agreed terms in the contract. In addition, a purchaser should always inspect the property immediately before completion to ensure the vendor has complied with any obligations in the contract.
As to condition, property is generally expressed to be sold in the condition it is in at the time the sale contract is signed. This obligation is generally re-stated as at completion. Many vendors leave their property in the condition a purchaser would wish to find it in, but this may not always be the case. The safest approach is to insist on a clause in the sale contract that the vendor will leave the property clean and empty of all belongings. Some vendors may be offended at such a request and it is clearly a judgement that the purchaser must make based on his viewing of the property and assessment of the vendor. If there is a considerable amount of ‘junk’ in any area then it is always worth clarifying that this will be removed before completion, backed up by a clause in the sale contract. In addition, there should be an obligation on the vendor not to make any modifications or alterations to the property and to maintain it in the same condition between the sale contract and completion.
Finally, it is worth noting that a notary is not there to enforce the obligations undertaken by the vendor in the sales contract. In practice, a notary may seek to find agreement between the parties as to the manner of resolving such issues so as to enable completion to take place as planned. This may be the withholding of some of the sale proceeds but the notary has no right to do so without the agreement of both parties, save where the sales contract specifically provides for it.
The information in this article is provided for informational purposes and does not constitute legal, professional or financial advice. We encourage you seek the advice of a relevant professional before acting on any information. Hyperlinks are provided as resources and assistance and are not intended as an endorsement.