Diagnostics relating to communal areas:
As part of their obligation to provide information, and in order to be exempt from the warranty for hidden defects, sellers are required to provide surveys of the private areas of the property relating to asbestos, lead, energy performance, etc..... However, the co-ownership lot includes a share of the common areas, and other surveys relating to these areas must be carried out.
These inspections will be carried out at the request of the property manager, who will be asked to provide them to the buyer by the notary responsible for the sale.
For example, if planning permission was granted for the building before 1 July 1997, the property manager must carry out an asbestos survey of the communal areas.
Similarly, a report on the risk of exposure to lead must be carried out on the communal areas of a block of flats used wholly or partly for residential purposes and built before 1 January 1949.
In addition, article L111-6-2 of the Code de la construction et de l'habitation (French Building and Housing Code) stipulates that before any building built more than fifteen years ago can be put up for co-ownership,a technical inspection must be carried out to determine the apparent state of solidity of the building and the roof, and the state of the collective pipes and drains, as well as the communal and safety equipment. Any prospective buyer may ask the property management company to look at this technical report.
Diagnostics specific to private areas: the CARREZ law (article 46 of the law of 10 July 1965)
The vendor of a co-ownership lot is obliged to state the surface area of the private area in the deed of sale and in the pre-contract that precedes it (compromis, promesse unilatérale de vente, etc.). This obligation applies to the sale of a lot or fraction of a lot in a building subject to co-ownership.
This system requires at least two separate owners. When all the lots in a condominium have been transferred to a single owner, it would seem that measurement is no longer required when all the lots are sold as a single unit. However, in view of the generality of the terms of the law and the absence of case law, it is preferable to use this measurement; the penalty incurred being the nullity of the sale.
The law makes no distinction according to the use of the lot: the obligation to measure applies regardless of the use of the lot: residential, professional, commercial, etc. . However, the law expressly excludes cellars, garages and parking spaces from this obligation. Similarly, the obligation to measure does not apply to free-standing lots with a surface area of less than 8 m². This surface area is determined using the calculation method laid down by law.
A measurement in accordance with the CARREZ law takes into account the floor area of enclosed and covered premises after deduction of the areas occupied by walls, partitions, stairwells and stairwells, sheaths, doorways and window openings. The floors of parts of the premises with a height of less than 1.80 metres are not taken into account (Article 4-1 of Decree no. 67-223 of 17 March 1967).
There is no legal obligation for the vendor to have this measurement carried out by a professional. The seller can carry out the measurement themselves, but it is strongly recommended that a qualified professional is used, due to the penalties incurred and the technical nature of the operation.
In practice, the costs of this measurement are borne by the vendor.
Penalties relating to the Carrez surface area
- Failure to indicate the Carrez surface area
If the surface area is not specified at all, the sale will be null and void. There are several situations in which this surface area must be indicated in the preliminary contract:
* When the pre-contract does not specify the surface area and the deed of sale has not yet been confirmed, the buyer may take action to have the sale declared null and void, or simply refuse to sign the deed of sale.
* If the pre-contract does not specify the surface area but the deed of sale does, the purchaser does not have a right of nullity.
* Where the surface area is stated in the preliminary contract but is not included in the deed of sale, the action for nullity can be brought within one month of the signing of the deed of sale.
*Where the surface area is not stated in either the preliminary contract or the deed of sale, or where there is no preliminary contract and the surface area is not stated in the deed of sale, the action for nullity must be brought within one month of the date of the deed of sale.
This action for nullity is brought before the Tribunal de Grande Instance and is subject to land registry publication.
- Carrez surface area error
In the event of an error in the stated surface area, only a shortfall in surface area unfavourable to the purchaser will result in a penalty. Excess measurements do not give rise to any financial consequences.
Therefore, if the actual surface area is more than 1/20th less than the surface area indicated in the deed, the purchaser may take action to reduce the price within one year of signing the deed. The price reduction will then be proportional to the smaller area.
For example: A sale of a plot of flat with a surface area of 100m² as stated in the deed for a price of €250,000. The actual surface area is 93 m². The buyer will be able to claim a reduction in the price because the actual surface area is less than 1/20th of the indicated surface area: 100x 1/20 = 5 m². The actual surface area is less than 95 m² (100-5). The buyer will therefore be entitled to a price reduction of €250,000 x 7/100 = €17,500.
When the sale involves several different lots subject to measurement under the CARREZ law, it is advisable to break down the price for each lot in order to simplify any price reduction action if the difference in measurement exceeds one twentieth and affects only one lot. Similarly, when the sale involves several lots, some of which are subject to the Loi CARREZ and others which are not.