Has case-law developed much over the last twenty years? “No, it is developing very slowly”, replies Benoît Kohl. “We can see a certain stability and consistency through the decisions analysed, with the exception of some specific cases. For example, problems linked to dry rot. Dry rot is a fungus which insidiously grows in roofs and ceilings and attacks woodwork and masonry. This was a little-known phenomenon twenty years ago, and when we analyse the judgments pronounced concerning the damage caused by dry rot, tribunals considered this fungus to be a hidden defect. However, while the visible presence of traces of humidity on the walls and woodwork does not necessarily imply the existence of dry rot it now appears that tribunals do not necessarily consider dry rot to be a hidden defect in such circumstances. The services of a specialist must be enlisted so that he or she can carry out an in-depth examination of the state of the premises and determine whether or not dry rot is present. This type of examination will make it possible to avoid future lawsuits.” Litigation often deals with property as opposed to furnishings. However, to put this into perspective it must be said that the vast majority of property transactions take place without the slightest hitch.

More sales, more litigation 

“More litigation is mainly being recorded in relation to buildings for two reasons”, explains Benoît Kohl. “On one hand, these sales represent important financial stakes and on the other, it is often a sale that takes place between individuals.” Indeed, with the exception of some limited cases such as second-hand vehicles for example, individuals rarely have the opportunity to conclude a sale between themselves. In traditional property sales, the buyer buys from a company which has particular obligations and rights to fulfill in relation to the buyer who is described as a consumer and is therefore protected by law. The client who buys a television has a guaranteed right but in the case of property, “the sellers can protect themselves more easily and the buyer tends to be more helpless”. It must be specified that here we are not talking about houses and accommodation to be built which are governed by construction law. With regard to the contract sale, the notary acts as a safeguard. He carries out a series of verifications at the outset such as, for example, the marital status of the seller in order to avoid a situation where the husband sells the house without the consent of the spouse even though each of them owns half of the property. He also verifies the urban status of the building and checks that the buyer has the required sum of money to buy the house.

Another explanation for the numerous litigations is the increase in sales. “People are buying and selling more housing properties than in the past”, observes Benoît Kohl. “It is not unusual for someone in their forties to have bought two or three houses or apartments while in the past the purchase of one house was considered to be the purchase of a lifetime. We mustn’t forget ‘life accidents’ like losing a job or separation which also influence the increase in the resale of properties.” Among the other developments pointed out by Benoît Kohl, the increase in rules and obligations is a source of litigation. “Sales law is getting more and more complex. Today, a notarial deed contains 10 to 20 pages on average while at the beginning of the last century it was a mere two pages long.”, he confirms. Property sales are also local sales. As Benoît Kohl, who is also the author of a work dedicated to European law governing property sales reminds us, (see article a protective roof for Europeans), “National laws prevail. This is logical because a building is connected to land. It is clear that while Europe wishes to harmonize sales law, it still excludes buildings from this harmonization. Currently, if you want to buy a building from a Belgian living in France for example, there is nothing to stop you using a Belgian notary for the purposes of signing the contract. However, you would be better advised to enlist the services of a French notary because he or she will be aware of the current local legislation which will help you to avoid any legal hitches”.