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Go back on his commitment after signing the deed of sale of real estate is not easy. The cancellation of the contract can only be done in clearly defined cases: Failure to comply with the obligation to deliver or guarantee by the seller, hidden defects or consent. In all cases, it is in court that we must request the nullity of the sale.

Cancellation for non-compliance with the obligation to deliver

After signing the deed of sale, the seller must respect certain obligations:

  • The obligation to deliver the property sold: "The obligation to deliver the immovables is fulfilled by the seller when he handed over the keys, in the case of a building, or when he handed over the titles of ownership" (Article 1605 of the Civil Code). The buyer can then take possession of the premises.
  • The obligation of conformity: "The thing must be delivered in the state where it is at the time of the sale" (Article 1614 of the Civil Code).

In the context of a co-ownership, the contract must mention the exact surface of the property sold (Carrez Law). If the actual area is smaller, the buyer can ask a reduction in the selling price.

In the event of failure to comply with the obligation of delivery, the buyer may apply in court for the forced execution of the sale or its cancellation (Article 1610 of the Civil Code). In addition "in all cases, the seller must be sentenced to damages, if it results in harm to the purchaser" (Article 1611 of the Civil Code).

Cancellation for non-compliance with the guarantee obligation

In a real estate sale, the second obligation of the seller is "to guarantee the thing he sells" (Article 1603 of the Civil Code).

  • The guarantee against eviction: The seller must guarantee "the peaceful possession of the thing sold" (Article 1625 of the Civil Code).
    Once the building is sold, the seller can not take any action that would limit the enjoyment of the new owner. He is also responsible in the event of dispute by a third party of the right of ownership: Claim of an easement or a part of the building, for example.
  • The lack of technical diagnosis: In itself, the absence of diagnostics is not a cause of nullity but if in the year of the purchase, the purchaser discovers the presence of lead, asbestos, termites, it can request a decrease of price or cancellation of the sale.

Cancellation for hidden defects

Articles 1641 to 1648 of the Civil Code guarantee the buyer against hidden defects. To apply the hidden defects guarantee must accumulate 3 conditions:

  • The vice must be hidden: That is to say that the buyer must not have known of this defect before the purchase. But he must have taken all the necessary vigilance to review the premises before buying. Attention, a known vice is deemed accepted.
  • The defect must be prior to the sale: The seller can not be held responsible for a problem occurring after the sale. It is up to the buyer to prove that the defect existed before the sale.
  • Vice must render the good unfit for the use for which it is intended, or greatly diminish its use.

The seller has 2 years from the discovery of the defect to ask for a decrease in the sale price, or the cancellation thereof.

The defects of consent mainly concern error and fraud or deception.

  • The mistake: The error is a cause of nullity only if it relates to the substantial qualities of the property sold (Article 1110 of the Civil Code). Without these qualities, the buyer would never have acquired the good. (This is, for example, the constructability of a land). Moreover, the error must be excusable, that is to say that the buyer could not reasonably perceive his mistake. This condition is assessed on a case-by-case basis according to the capacities of the buyer and in particular the age of the buyer.
  • Fraud: "Fraud is a cause of nullity of the agreement when the maneuvers practiced by one of the parties are such, that it is obvious that, without these maneuvers, the other party would not have contracted" (Article 1116 of the Civil Code).
    This is deception on the part of the seller who lied or concealed an important element that led the buyer to sign the contract.

The mistake or the fraud can not be presumed They must be proven. The buyer can request the nullity in the 5 years following the discovery of the error or the fraud.

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