When a property is held jointly, particularly as part of an inheritance or a joint purchase, the sale of that property can raise a number of legal issues. One of these is whether a single joint owner can sign a sale mandate. This article sheds light on this complex issue, which is essential to the work of a commercial or estate agent.
The validity of a mandate signed by a single joint owner
In property sales, a power of attorney signed by a single joint owner is legally valid, but there are important nuances to this validity. According to case law, an undivided co-owner may give a mandate to an estate agency to sell an undivided property. However, this mandate only binds the undivided co-owner who signs it in relation to the estate agent. It cannot be invoked against the other joint owners, unless they give their subsequent consent, in particular by signing the preliminary contract setting out the estate agent's fees.
In other words, although this mandate enables the estate agent to carry out his task of finding buyers, it does not automatically authorise the sale without the agreement of all the undivided co-owners. In accordance with article 815-3 of the French Civil Code, the signing of a preliminary sales agreement and the final deed of sale require the unanimous agreement of the joint owners.
An act of administration or disposal?
To understand the implications of this type of mandate, it is essential to distinguish between acts of administration and acts of disposal in the context of joint ownership.
- Acts of administration (such as the upkeep or management of the property) may be carried out by joint owners holding at least two-thirds of the undivided rights.
- Acts of disposal, such as the sale of a property, require the unanimous agreement of the undivided co-owners.
However, a mandate signed by a single joint owner is generally considered to be an intermediary mandate, i.e. an authorisation given to the estate agent to seek out potential buyers. This type of mandate is not equivalent to an act of disposal, as it does not automatically lead to the sale of the property. This reasoning has been confirmed by the Cour de cassation in a number of rulings, notably in a decision dated 15 January 2015 (no. 13-25955).
The legal limits of such a mandate
Although the mandate is legally valid between the undivided co-owner who signs it and the estate agent, it has practical and legal limits:
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Unanimous agreement required for sale: Even if one joint owner signs a mandate, the sale cannot go ahead without the agreement of all the joint owners. Otherwise, the transaction will be blocked.
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Risks for the undivided co-owner who signs the mandate: If the sale fails, particularly if the other undivided co-owners refuse to sign, the undivided co-owner who signed the mandate may be required to compensate the estate agent, in accordance with the terms of the contract.
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Conflicts between joint owners: In conflict situations (disagreement over the sale, the price or the conditions), this type of mandate can be a source of disputes. It is therefore preferable for the estate agent to ensure that all the joint owners are in agreement when the mandate is signed.
Practical advice to secure the sale
To avoid any disputes, here are a few recommendations to follow:
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Obtain the agreement of all undivided co-owners as soon as the mandate is signed: Although only one joint owner may legally appoint an estate agent, obtaining the agreement of all the joint owners from the outset simplifies the process and increases the chances of a successful sale.
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Give preference to a clear and precise mandate: If one joint owner is acting alone, the mandate should state that it is only an intermediary mission and not a mandate to sell. This limits the legal risks in the event of disagreement.
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Communicating with joint owners: By informing the other joint owners of the process and obtaining their agreement beforehand, you can reduce tensions and make the sale easier.
The special case of spouses who own property
A situation that is often similar to that of joint owners concerns property owned jointly by spouses married under the community property regime. Here again, only one spouse may sign a sale mandate, provided that it is only a mediation mandate. The Court of Cassation reiterated this principle in a ruling dated 12 September 2019 (no. 18-20638). However, the sale itself still requires the agreement of both spouses.
