If the energy label is not appropriate, looking for a more lenient diagnostician is certainly not an appropriate solution. The seller has a duty of loyalty to the purchaser, who may be able to obtain compensation from the courts to finance the renovation of the property in the event of fraudulent practices.
The professionals who worked with the vendor may also be held jointly and severally liable, as the Rouen Court of Appeal pointed out in a ruling dated 28 August 2024.
A complacent DPE with serious financial consequences
In this ruling, the sellers claimed that they had bought the building in 2008, which had an energy label of F at the time, and had carried out major insulation work. As first-time buyers and novices in the property market, they had an initial DPE carried out, classifying the property as G. Disappointed by this rating, given the work that had been carried out, and on the advice of their estate agent, they had a second DPE carried out by a new diagnostician, who rated the building a D.
The vendors and estate agent therefore marketed the property with this more flattering label. Once the property had been sold, the new owners realised the deception and went to court to challenge the DPE, deeming it too favourable in relation to the actual condition of the property.
In court, each party tried to shift the blame onto the other. The sellers, as non-experts, took refuge behind the category D diagnosis provided by a professional. The estate agent claimed that he had merely advised that a second diagnosis be carried out, without having ordered it himself. The diagnostician, for his part, denied any complacency, arguing that the sellers had withheld information from him, particularly about the composition of the household.
In its ruling of 28 August 2024, the Rouen Court of Appeal ordered the vendors, the diagnostician and the estate agency to pay €61,000 in damages (including €20,640 for the diagnostician and his insurance, and €13,760 for the agency), as well as more than €10,000 for financial loss and €9,000 for irreparable costs.
Reasons for the decision:
Against the sellers:
The sellers could not hide behind the diagnostician when, two months earlier, they had in their possession an initial DPE classifying the property as G, the worst category, with consumption measured at 533 kWh/m² per year. Despite their inexperience, they should have been alerted to such a discrepancy between the two DPEs and should have informed the purchasers. The court emphasised that the obligation to append a single diagnosis to the deed of sale did not release them from their duty of loyalty.
By not informing buyers of the property's poor energy performance, the vendors had knowingly concealed a major defect, making the property more attractive thanks to a more favourable diagnosis.
Against the diagnostician:
The diagnostician attempted to defend himself by accusing the sellers of having concealed the existence of the first DPE and of having provided him with invoices that did not reflect normal occupancy of the property. However, the court noted a number of errors on the part of the diagnostician, including the use of an inappropriate calculation method, the absence of an Ademe number, and unjustified computer malfunctions. These factors led the court to conclude that the diagnosis was of convenience.
Against the estate agent:
The estate agent could not have been unaware that a change of three levels in the energy rating was suspect, without any work justifying such an improvement. As a professional, it had a duty to alert owners to avoid any misunderstanding with buyers about the nature and price of the property.
The agency's negligence contributed to the damage suffered by the buyers, depriving them of the opportunity to negotiate a lower price or to abandon the purchase.
