Buying or selling a property – give yourself all the leeway or “wriggle room” that you possibly can. Professional realtors and lawyers would simply advise this. It is perfectly standard practice – perfectly legal and very acceptable and smart as well.Why box yourself in and limit yourself when it comes to options as well as your inherent flexibility when it comes time for that deal or ultimately to close or choose to walk away from the deal. After all there are always plenty of other fish in the sea, fish to fry and houses or properties to look at or buyers who wish to complete a purchase of your property and real estate.For example – as a buyer or purchaser. In the standard “offer to purchase”, add as many conditions as possible. For example – conditions that apply to sale such as “subject to financing”, “subject to a full home inspection report”, etc. Having such a clause may well allow you to exit from a deal rather than being forced into it. If your financing does not go through – as part of your written contract, you are allowed to exit the deal and not follow through with it, if you change your mind on the home or property. Similarly if the home inspector finds additional problems in the home , office building or property, rather than being held to a contract without such a clause , you are now entitled on the report not to follow through with the completion of the rest of the purchase. Had you not had that clause in the contract – you would be under legal obligations to complete the contract of sale – along with extra costs that you may well incur in bringing the property up to snuff. Remember that these are costs that you did not know of and were not planning as part of the overall costs of your real estate purchase. Having reasonable clauses in the contract offer allows you the luxury of not being held to a sale that is not in your best interests.It is best to hire a trained professional, such as in this case an accredited home inspector to complete the evaluation. It is true that in some cases, glaring examples have been noted by lay people, as opposed to accredited professionals, that courts have upheld the intent of the action – but why risk extra effort on your part. Trained, accredited 3rd party professionals are always a wise investment.On the other side of the fence what can sellers do to protect themselves as well? First of the entire offer to purchase is not valid and binding until signed by both parties – both buyer and seller as well. If the seller is unsure to complete the deal – if there are other offers on the way, the selling price is just a bit low, or there are additional conditions on the sale which the seller is not 100 % comfortable with – then there is no law or ruling that the seller has to complete the process at that moment by physically signing the bill of sale fro the property or properties involved. This gives the seller some time.When the seller does sign the written contract, the “bill of sale”, it can be held that just as the purchaser is entitled to terms of conditions of sale so is the seller. In a manner similar, and almost identical, to the case of the buyer or purchaser, listing conditions and terms of sale on the written contract are perfectly standard and admissible. The aim, just as in the case of the buyer, is to provide the seller of the property with that same “wriggle room “that apply to the sale of the property. The seller can do the same and similar as the buyer, only on the other side of the fence. For example some standard tactics that can and do apply for the seller’s contract are regarding the “bill of sale “contract for example such terms and conditions as “approval by my lawyer or attorney”, “subject to a specified time deadline “, or in the case of a hot real estate market – the provision of an allowed “auction” within a given time frame. What this entails is that during a specified time period, the seller is entitled to receive higher, or alternate, offers of purchase, even after a signed contract of bill of sale is agreed to.Buying or selling a property – be it for a home, commercial property or summer cottage, vacation property or other real estate transactions are among the highest and most expensive transactions most people will ever do. Why not make the process easier on yourself and allow as much flexibility as both parties – the buyer as well as the seller of the real estate and the legal contract – the bill of sale will allow.
It is, of course, the nightmare we all dread. Having found your perfect dream home in France, you move into it only to find that the condition of the property is significantly worse than anticipated.George and Alexandra Mortimer in the Landes found exactly that when they discovered serious water penetration into several rooms in the house, notably the basement and living room.”We raised the matter with the previous owners, who denied there was a serious problem; the particulars of the property provided no information on its condition, and the notary also considered that as we had purchased the property en l’etat (in condition as seen), then there was nothing he could do.”Well possibly, but the law on this issue is not quite as clear cut as the notary indicated.In general, it has to be said that the principle of ‘caveat emptor’ (buyer beware) applies as much in French law as it does elsewhere.However, in France the seller has an obligation to disclose to the buyer all important information concerning the property.There is nothing in French law that states precisely what must be disclosed by the buyer, save that the information must be something of a profound nature, of which the seller was aware at the time of the sale, and about which, if the buyer had known, they would not have proceeded with the purchase, or would have offered a lower price.In particular, the seller is obliged to disclose any ‘hidden defects’ (vices caches) in the property.If they do not do so, then it is possible for a court of law to annul the sale, or at least reduce the price paid by the purchaser.Notaries sometimes seek to limit the use of the vice cache protection by a standard exclusion clause the in the sale contract.In practice whether a court of law would uphold this clause would depend on the circumstances of the case. If the court considered that the buyer had been deliberately misled by the seller, then they could annul the clause.Indeed, this is precisely what has happened in a number of important court cases, although in other legal decisions the clause has been upheld. It all depends on the circumstances, notably whether the seller acted in good or bad faith.Our advice to all buyers is that you should press for the removal of this clause in the sale contract. The seller may well object to you doing so, but if they do, then their motives for doing so need to be questioned.You should certainly be hesitant about accepting to buy en l’etat unless you fully understand what you are buying.Ensure also that any important clause on the condition of the property that may have been included in the sale contract is transferred over into the conveyance.There are particular guarantees on a house constructed within the last ten years, and there is additional protection if the seller is a property professional – property dealer, property developer or builder – as their own disclosure obligations are more prescribed. Property professionals cannot use the vice cache clause.Estate agents also have a legal obligation to provide advice to the seller, but you will find few willing to say much in writing!