6 reasons to call on the services of a lawyer in the field of VEFA (vente en l'état de parfait achèvement) or more commonly known as "off-plan sales"?

In general, buyers of this type of property, which is becoming increasingly common, seek specialist advice when they encounter the following difficulties:

- assistance from the first act (reservation contract) and then at the signing of the deed of sale,
- delivery assistance,
- delay in delivery or even non-delivery,
- removal of reservations following delivery
- defects,
– hidden defects
- implementation of guarantees following delivery: guarantee of perfect completion, two-year guarantee, ten-year guarantee.

But first of all, what is the Sale in perfect state of completion?

The VEFA or Vente en état de futur achèvement, is a sale based on plans for the purchase of a property (house or flat) to be delivered within a specified period.

This is a contract for a building to be constructed.

In fact, the rules governing VEFA are very similar to those applicable to contracts for the construction of single-family homes.

The seller/developer remains the owner of the construction until delivery of the units, at which point ownership of the property is transferred from the owner to the purchaser.

He is assisted by a project manager who will carry out the construction.

The buyer does not pay the full amount of the purchase in one go. Regular calls for funds are made according to the progress of the construction project. The project manager sends a progress report on the construction site and the owner sends a provisional call for funds at the start of each new stage in the construction.

1 The lawyer's assistance in signing the deed of sale

The objective? To ensure that the developer complies with its obligation to provide information and deliver all the compulsory documents between the reservation contract and the deed of sale.

Based on the principle that the seller of a property for build has included all the compulsory information required by article L. 261-11 of the Code de la construction et de l'habitation in the contract for the sale of a building to be constructed, he may nevertheless be held liable for failure to fulfil his obligation to provide information and for non-compliance with the contractual stipulations.

Thus, the seller of a building to be constructed may be liable for failure to provide information.

In addition to the information required by the mandatory terms of the contract for the sale of a building, the seller of a building is also under an obligation to provide information, or even cooperation, to help the purchaser understand and assimilate the mass of technical documents and specifications.

Me ZAKINE accompanies you in all your steps prior to the signing of the deed of sale

2 -The first contractual steps

- The reservation contract :

The purpose of this contract is to determine the conditions of sale of the future property acquired under a VEFA.

The reservation contract must be notified to each purchaser by registered letter with acknowledgement of receipt. The buyer has 10 days to withdraw from the contract from the day after the first presentation of the letter.

If he withdraws within this period, the purchaser shall be reimbursed for the full amount paid.

The following shall be sent to the purchaser by registered letter with acknowledgement of receipt:

- the draft VEFA deed accompanied by a dimensioned plan of the lots sold, the descriptive technical notice and the plan of the property complex;
- copies of the documents required to complete the sale: co-ownership regulationsthe descriptive state of division, the specifications of the allotment...

Thereafter, the deed of sale must be concluded before a notary.

- The deed of sale

The use of a lawyer is therefore important as soon as the reservation contract is signed, as he informs the purchaser of the time extension clause, the foreseeable delays, and the actions to be considered to obtain damages.

Sometimes the provisional delivery time provided for in the reservation contract is different from that provided for in the deed of sale.

In this case, you should discuss the matter with a Specialist lawyer to advise the buyer.

Finally, the liability of the notary may be invoked when it can be perfectly demonstrated that the notary has failed to fulfil his obligation to inform and advise.

Cécile ZAKINE Law Firm helps you to accomplish all these steps so that the acquisition of your home as well as its delivery takes place in the best possible conditions and that, in case of negligence and bad execution of the contract by the seller/builder, means of action are deployed so that your rights are respected.

3 - Delays in delivery: is this acceptable? under what conditions? what does the deed of sale say? do the legitimate causes of delay protect the promoter whatever his behaviour?

Very often, in practice, the contract of sale of a building to be constructed often includes a penalty clause in the event of late delivery.

This penalty clause can be invoked if the agreed deadlines have not been met, even if the purchasers have not suffered any loss. damage.

It should be noted that these late penalties are in addition to the damages that may be claimed by purchasers on the basis of common contract law due to the builder's poor performance of its contractual obligations.

However, penalties for delay are not necessarily included in contracts of sale in the state of perfect completion.

They are mainly provided for by law for contracts for the construction of individual houses.

This means that the planned deadline may be affected by force majeure, bad weather, delivery delays linked in particular to COVID or the failure of a service provider.

However, the causes of delay must be clearly justified and not be the result of bad faith on the part of the builder, which would lead to a significant imbalance between the parties involved, namely the trader and the consumer.

In an opinion issued on 29 September 2016 (CCA, 29 Sept. 2016, opinion no. 16-01), the Unfair Contract Terms Commission ruled on the validity in principle of time extension clauses in VEFA, considering that they were not unfair.

However, promoters should not use such clauses to justify particularly unfair delays.

The circumstances surrounding the case will be taken into account by the Judges who will examine the behaviour of the developer and the main contractor and their possible bad faith, as this type of time extension clause does not guarantee an automatic exemption from liability.

4. The multiplicity of damages that can be compensated in the event of delay

Financial prejudice (payment of rent because the purchaser must remain a tenant while the building is completed or because he sold his first property too early, thinking that it would be delivered within the planned timeframe, interim interest, furniture storage, etc.), moral prejudice (obligation to move, problems with one's landlord, feeling of isolation, anxiety, fear of never being delivered, etc.), rental prejudice (if the property acquired is a rental investment or if the purchaser is unable to use the property in which he finds himself because he is obliged to live there), such are the prejudices that are compensated in court or by negotiation with the developer.

In the event of non-compliance with the delivery deadline, and where this is attributable to the seller and not the purchaser (Cass. 3e civ, 5 July 2011, no. 10-30.767), the buyer may claim damages for the loss suffered under article 1611 of the Civil Code (Cass. 3e civ., 1 Feb. 1999, no. 97-16.578; Cass. ch. mixte, 6 Oct. 2006, no. 04-17.070; 3e civ., 14 March 2012, no. 10-28.714).

Before taking any legal action, the purchaser must send a letter of formal notice to the builder. Indeed, it is specified that: "unless the non-performance is definitive, damages are only due if the debtor has previously been given notice to perform within a reasonable time".

The delay invoked under the cover of the time extension clause will have to be perfectly justified without bad faith showing up in the builder's actions.

Indeed, "the debtor shall be ordered, if necessary, to pay damages either for the non-performance of the obligation or for the delay in performance, if he does not prove that performance was prevented by force majeure".

Thus, if the project owner, when given formal notice, has failed to fulfil its obligation to deliver the work within a reasonable time, it is likely to incur liability (Cass. Civ. 3rd, 16 March 2011).

Me ZAKINE assists you in your efforts to have the builder ordered to pay damages in the event of a manifest delay

5. Delivery assistance

The delivery of the property is an obligation of the developer. This is the final stage, when the keys are handed over.
But beware! The excitement of the big day means that you have to be careful to protect your rights so that you can assert them later on if you run into difficulties!

Whether or not the planned delivery date has been met, the purchased good will be delivered.

The developer must deliver a property in its elements and materials chosen, in accordance with the description.

It must be free from defects or faults.

For this reason, this stage must be subject to attention buyers, who must be properly accompanied.

Once the buyer has been summoned by the developer by registered post, he or she must take all the necessary steps to ensure that the handover takes place under the best possible conditions, including being accompanied by a lawyer, a bailiff and even a building surveyor.

If on the day of delivery, the buyer does not express any reservations, the developer hands over the keys to the house and this marks the end of the construction contract.

An acceptance report will be drawn up on which the reservations (i.e. the defects found) will be recorded, which must be sent to the promoter within one month.

Further reservations may be noted within one month of delivery.

These should be mentioned in addition to those specified in the minutes.

At the time of delivery, the building expert can also check the surface area of the property.

Indeed, it sometimes happens that the actual surface area of the property acquired under the VEFA is less than that indicated on the sales contract and which is beyond the permitted tolerance of 4%.

The developer must remove the reservations (i.e. carry out additional work to rectify the defects) within one year, i.e. within the period corresponding to the implementation of the guarantee of perfect completion.

Finally, it should be noted that the purchaser may refuse to pay the outstanding 5% if the builder's delay has proved to be faulty and particularly prejudicial. In this case, he could not risk the builder invoking the resolutory clause intended to nullify the sale (Cass. com., 14 Dec. 1993, no 92-11.702).

Similarly, the Court of Cassation has ruled that a buyer may rely on the builder's failure to meet his contractual obligations to refuse to pay the balance of the price. In this case, the seller cannot invoke the non-payment of the outstanding balance to refuse to hand over the keys (Cass. 3e civ., 13 July 2016, no 15-20.190).

6. The discovery of defects or deficiencies following delivery

What to do in the event of a finding of lack of conformity, defects or hidden faults.

The purchaser, who is the definitive owner of his property (the transfer of ownership being retroactive to the time of delivery), can now take action within different time limits depending on the defects or faults found.

If the developer does not take action following the registered letter sent to him concerning the reservations, the purchaser may, within a period of 13 months (one month to address the reservations + 12 months), bring a legal action (référé) to force the developer to remove the reservations.

If, after the first year, other more serious defects appear, i.e. affecting the solidity of the building, the purchaser may invoke the ten-year guarantee to remedy the defects observed.

Nullity of the sale may be possible but under very strict conditions.

You should contact a Lawyer specialising in VEFA to understand the best strategy to adopt in the face of disorder.

Interim relief, interim assessment, action for rescission of the sale, action for reimbursement in proportion to the loss of surface area acquired, these are all legal actions that are possible but that present a risk if they are not perfectly in line with the expected result.

That's why ZAKINE can help you choose the right procedure. against the promoter.

It should be noted that any legal action may ultimately be followed by a negotiation with the promoter and lead to the establishment of a transactional protocol (amicably signed protocol of agreement).

It is always preferable to negotiate in order to avoid the sometimes long procedural delays when the promoter's proposals are acceptable.

Me ZAKINE, specialised in the sale in the state of perfect completion (VEFA) will be able to accompany and advise you as best as possible before the signature of the contract, during the construction, notably in case of delay or during the pre-delivery visit, and following the delivery of the property.

Me ZAKINE can help you if delivery of a building is delayed to claim damages for the loss suffered.

Read more: 3 tracks on vefa law with a lawyer to learn more here.

Master Zakine is VEFA lawyer and in CCMI

She consults and works throughout France.

(video, electronic signature, online payment).

The firm adapts to the schedules of working people.

Maître Zakine, Doctor of Law, lawyer, is in the delays in VEFA (covid or not).

The law firm has expertise in VEFA delay actions.

Me Zakine works all over France: Antibes, Grasse, Paris, Bordeaux, Lyon, Marseille, Toulouse, Ile de France, Neuilly sur Seine, Boulogne, Villepinte, Bezons, Pontoise, Toulon, Dijon, Bordeaux, Saint Tropez, PerpignanMont de Marsan, Rennes, Nantes, Nancy, Metz and Thionville.

Don't hesitate to contact Me Zakine, who will be able to advise you on all these issues.

Ms Zakine will also be available to you by videoconference, which you can arrange at your convenience via her website: https://calendly.com/maitre-zakine

Don't hesitate to block a date on my online appointment. I'll get back to you at the appointed time!