I. Preparing the Sale: Mandate and Pre-Contractual Phase

A. Engaging an Estate Agent: The Mandat de Vente

When you decide to sell your French property as a non-resident, your first practical decision is whether to engage a French estate agent (agent immobilier) or to proceed privately. Most non-resident sellers choose to work with an agent, particularly given the logistical challenges of managing viewings, negotiations, and administrative formalities from abroad.

The relationship between a seller and an estate agent is governed by the mandat de vente (sale mandate), a written contract regulated by the loi Hoguet (Law no. 70-9 of 2 January 1970). A mandate must specify the duration of the agency, the amount of the agent’s commission (typically 4% to 8% of the sale price), and whether it is exclusive (mandat exclusif) or non-exclusive (mandat simple). Under a mandat exclusif, you undertake not to sell through another agent or directly for a specified period; in return the agent commits additional marketing resources.

A non-exclusive mandate allows you to list with multiple agencies, but it also dilutes the interest each agent will invest. For a non-resident seller who cannot easily monitor the local market, a carefully drafted exclusive mandate can be the more effective choice — provided the contractual duration remains reasonable and the commission structure transparent.

The Cour de cassation has affirmed that the formal validity of the mandate is a matter of strict compliance with the loi Hoguet. In Cass. 3e civ., 11 September 2025, no. 23-17.579 (Bull.), the Third Civil Chamber ruled that the agent must hold a valid professional card at the date of signature of the mandate and that, so long as the card was in force — even if the place of issuance was not mentioned on the mandate — the mandate remains valid. The Court confirmed that the regulatory objective is to “protect the mandant” (protéger le mandant) by ensuring the agent is licensed, not to create formal nullities for purely administrative omissions.

A critical pitfall for non-resident sellers concerns post-mandate commission claims. The Cour de cassation held, in the same September 2025 decision, that if a mandate provides that the seller may not deal directly with a buyer introduced by the agent for a specified period after the mandate expires (typically 12 months), the seller who transacts after that period without the agent’s involvement does not automatically owe a commission. The Court stated that “la vente conclue, sans l’intermédiaire de l’agent, à une période où tant le mandat que la clause pénale qu’il contient ont épuisé leurs effets, ne saurait donc justifier un droit à commission de l’agent” — a sale concluded without the agent’s intervention, at a time when both the mandate and the penalty clause it contains have exhausted their effects, cannot justify the agent’s right to a commission. Non-resident sellers should therefore scrutinise the expiry and post-expiry restriction clauses of their mandate with particular care.

Regarding the agent’s commission more broadly, the Cour de cassation has consistently held that an agent earns a commission only by effective intermediation. In Cass. 3e civ., 1 March 2023, no. 21-22.073 (Bull.), the Court explained: “le droit à rémunération de l’agent immobilier, auquel un mandat de recherche a été confié, suppose une mise en relation entre le vendeur et l’acquéreur” — the agent’s right to remuneration, where a search mandate has been conferred, requires an actual introduction between seller and buyer. A non-resident seller should understand that a commission is not earned merely because the agent placed a listing online; it is earned when the agent brings a specific buyer who proceeds to purchase.

B. The Two-Stage Sale: From Compromis to Acte Authentique

Under French law, the sale of real property is defined by Article 1582 of the Civil Code: “La vente est une convention par laquelle l’un s’oblige à livrer une chose, et l’autre à la payer.” (A sale is an agreement by which one party undertakes to deliver a thing, and the other to pay for it.) It may be concluded by private deed (acte sous seing privé) or by authentic instrument (acte authentique). In practice, every property sale in France proceeds through two distinct stages.

The first stage is the preliminary contract: either a promesse unilatérale de vente (unilateral promise to sell) or a compromis de vente (synallagmatic sale agreement). Under a compromis, both parties are immediately bound — the seller to sell and the buyer to buy — subject only to the fulfilment of any conditions suspensives (suspensive conditions), typically the buyer obtaining financing. Under a promesse unilatérale, the seller grants the buyer an option to purchase within a fixed period; the seller remains bound, but the buyer may decide not to proceed.

The promesse unilatérale typically requires the buyer to pay an indemnité d’immobilisation (immobilisation indemnity), usually 5% to 10% of the sale price, which locks in the seller’s commitment. The legal character of this sum was clarified by the Cour de cassation in Cass. 3e civ., 16 January 2025, no. 23-23.378. The Court held that the immobilisation indemnity “ne sanctionnant pas une inexécution contractuelle mais représentant le prix de l’exclusivité accordée aux bénéficiaires, celle-ci, qui ne constituait pas une clause pénale, ne pouvait être réduite par le juge” — since it does not sanction a contractual breach but rather represents the price of exclusivity granted to the beneficiaries, it does not constitute a penalty clause and cannot be reduced by the judge. This is an important protection for the non-resident seller: the sum secures genuine commitment from the buyer and cannot be challenged on grounds of disproportionality.

For the seller, the preliminary contract is the moment when all material disclosures must be made. The compromis or promesse must be accompanied by a comprehensive dossier de diagnostic technique (technical diagnostic file), the content of which has been considerably strengthened in recent years. The seller who fails to provide a complete and current diagnostic file risks the annulment of the sale or a claim for damages.

After the signing of the preliminary contract, a statutory 10-day cooling-off period (délai de rétractation) runs in favour of the buyer (not the seller). During this period the buyer may withdraw without penalty; the seller cannot. Once the cooling-off period expires and suspensive conditions are satisfied, the parties proceed to the second stage: the acte authentique de vente (authentic deed of sale), signed before a French notaire. The notaire is a public officer who verifies title, collects taxes, registers the deed with the land registry (service de la publicité foncière), and ensures the transaction is legally watertight. For a non-resident seller, the notaire also plays the essential role of tax withholder: the capital gains tax due on the sale is calculated, withheld, and paid to the French tax authority directly by the notaire on the day of completion.

II. The Seller’s Legal Obligations and Continuing Liability

A. Pre-Contractual Disclosure and Diagnostic Obligations

The French Civil Code imposes on every seller a general duty of pre-contractual information. Article 1112-1 of the Civil Code (introduced by the 2016 contract law reform, Ordinance no. 2016-131) provides that a party who knows information of decisive importance for the consent of the other party must disclose it. This duty is reinforced by a growing body of case law addressing the seller’s obligation to inform — and the consequences of failing to do so.

In Cass. 3e civ., 6 July 2023, no. 22-12.461, the Cour de cassation upheld a finding of liability against a property developer who had “manqué à son obligation précontractuelle d’information en s’abstenant volontairement d’attirer l’attention de l’acquéreur sur une information déterminante dont elle avait connaissance” — breached its pre-contractual duty of information by voluntarily refraining from drawing the buyer’s attention to decisive information of which it had knowledge. Although that case concerned a developer selling off-plan, the principle applies equally to private sellers: silence, when it conceals information that would have influenced the buyer’s decision, constitutes a réticence dolosive (fraudulent concealment).

The Cour de cassation further refined this doctrine in Cass. 3e civ., 4 July 2024, no. 23-11.532. That case involved sellers who had failed to disclose to the buyer that the chalet they were selling had been constructed under illegal conditions and was situated in a non-buildable zone. The Court stated that the sellers’ “dissimulation volontaire constitue une réticence dolosive de la part des vendeurs qui connaissaient le caractère déterminant pour l’acquéreur de cette information portant sur une caractéristique essentielle de l’immeuble, quand bien même l’intéressé aurait déclaré dans l’acte de vente connaître parfaitement le bien et avoir pris lui-même auprès des services compétents tous renseignements concernant les règles d’urbanisme s’y appliquant, l’erreur provoquée par la réticence dolosive étant toujours excusable” — the sellers’ voluntary concealment constituted fraudulent concealment, since the sellers knew that this information, relating to an essential characteristic of the property, was decisive for the buyer, even though the buyer had declared in the deed of sale that he knew the property perfectly and had himself obtained all information concerning applicable urban planning rules from the competent services; an error provoked by fraudulent concealment is always excusable.

The significance of this ruling for a non-resident seller is clear: the standard exculpatory clause found in many French sale deeds — in which the buyer declares having inspected the property and obtained all relevant information — does not protect the seller who has deliberately withheld material information. The duty to disclose is proactive, not reactive. A seller who knows of a latent defect, an urban planning restriction, an ongoing neighbour dispute, or a planned public works project affecting the property must disclose it, irrespective of whether the buyer asks.

The technical diagnostic file (dossier de diagnostic technique, or DDT) gives concrete form to this disclosure obligation. Since the SRU Law of 2000 and subsequent reforms, the seller must provide the buyer with a series of mandatory surveys before the signing of the preliminary contract: an asbestos survey (diagnostic amiante), a lead exposure risk report (constat de risque d’exposition au plomb, or CREP), an energy performance certificate (diagnostic de performance énergétique, or DPE), a natural and technological risks statement (état des risques naturels et technologiques, or ERN), a termite survey in affected zones, a gas installation survey, an electrical installation survey, and a sanitation compliance certificate for properties not connected to mains drainage. For properties in a copropriété (co-ownership), additional documents are required, including the règlement de copropriété (co-ownership regulations), the minutes of the last three general assemblies, and the caractéristiques de la copropriété (a summary of the building’s key characteristics).

The seller who fails to provide a complete diagnostic file exposes the sale to serious risk. In Cass. 3e civ., 19 February 2026, no. 24-10.524 (Bull.), the Cour de cassation addressed the specific obligation to update the natural risks statement. The Court held that if a plan de prévention des risques naturels (natural risk prevention plan, or PPRN) is approved between the signing of the preliminary contract and the signing of the authentic deed, the diagnostic file must be updated accordingly before the deed is signed. The Court stated that “si, après la promesse de vente, le plan de prévention des risques naturels prévisibles a été approuvé avant la signature de l’acte authentique, le dossier de diagnostic technique doit être complété par une mise à jour de l’état des risques résultant du plan approuvé valant servitude d’utilité publique” — if, after the promesse de vente, the PPRN has been approved before the notarised deed is signed, the DDT must be supplemented by an update of the risk statement. Where the seller fails to do so, the buyer may seek rescission of the sale or a reduction of the price. For a non-resident seller whose transaction may take several months between the preliminary contract and completion — during which time municipal planning documents can change — this obligation to keep the diagnostic file current is a practical pitfall of considerable importance.

For non-resident sellers of properties located in a copropriété, a further specific obligation applies. The seller must provide the notaire with the minutes of the last three general assemblies of co-owners and a certificate from the syndic (managing agent) confirming that all charges de copropriété (co-ownership charges) have been paid up to date. The buyer who later discovers undisclosed significant works voted before the sale but not disclosed may seek recourse against the seller on the basis of the pre-contractual information obligation.

B. Post-Sale Guarantees: Hidden Defects, Undisclosed Servitudes, and Eviction

Once the sale is completed, the seller does not simply walk away. The French Civil Code imposes several continuing guarantees, some of which can survive for many years after the transfer of ownership. The non-resident seller who imagines that the transaction is definitively closed upon receipt of the sale proceeds may be unpleasantly surprised.

The first and most practically significant is the garantie des vices cachés (warranty against hidden defects), governed by Articles 1641 to 1649 of the Civil Code. Article 1641 provides that a seller is liable for latent defects in the thing sold which render it unfit for its intended use, or which impair that use to such an extent that the buyer would not have acquired it, or would only have given a lesser price for it, had the buyer known of them. The defect must have existed before the sale, must be hidden (not apparent on reasonable inspection), and must be sufficiently serious. The buyer must bring an action within two years of discovering the defect (délai de prescription), subject to an overall limit of twenty years from the sale. The buyer may elect either to return the property and obtain restitution of the price (action rédhibitoire) or to keep the property and claim a reduction in the price (action estimatoire), in addition to damages where the seller knew of the defect.

Many French sale deeds include a clause purporting to exclude the seller’s liability for hidden defects. However, the case law imposes significant limits on the effectiveness of such clauses. The general rule, reiterated consistently by the Cour de cassation, is that a seller who knows of a defect and fails to disclose it to the buyer cannot rely on a clause excluding the warranty against hidden defects — the clause is inoperative against a seller of bad faith. It is therefore risky for a seller to sign a deed containing a standard exclusion clause while withholding knowledge of a defect: the clause will fall away if the buyer can prove the seller’s knowledge.

The second continuing guarantee is the garantie d’éviction (warranty against eviction), governed by Articles 1626 to 1640 of the Civil Code. Article 1626 provides that the seller is bound by operation of law to guarantee the buyer against eviction from all or part of the thing sold, or against charges claimed on that thing and not declared at the time of the sale. This guarantee has two aspects: the guarantee against the seller’s own acts (garantie du fait personnel) and the guarantee against third-party claims (garantie du fait des tiers).

Within this framework, Article 1638 addresses the specific situation of undisclosed non-apparent servitudes (easements). The Cour de cassation delivered an important clarification of this provision in Cass. 3e civ., 6 July 2023, no. 22-13.179 (Bull.). The case concerned buyers who discovered, after purchasing a house, an underground public sewage pipe running through their property — a servitude that had never been declared. The Court held: “l’importance de la servitude occulte exigée par l’article 1638 précité ne conditionne que la résiliation de la vente, et non l’indemnisation du préjudice pouvant résulter pour l’acquéreur de toute servitude non apparente non déclarée lors de la vente” — the importance of the hidden servitude required by Article 1638 conditions only the rescission of the sale, and not the compensation of the loss that may result for the buyer from any non-apparent servitude not declared at the time of the sale. In other words, even a minor undisclosed servitude — one that would not have prevented the sale — entitles the buyer to damages proportionate to the diminution in value. Only the more drastic remedy of rescission requires that the servitude be of sufficient importance to presume that the buyer would not have purchased.

The scope of the warranty against hidden servitudes was further clarified in Cass. 3e civ., 13 February 2025, no. 23-17.636 (Bull.). This case involved a sale deed containing a clause stating that the buyer took the property in its condition as of the day of sale and had “no recourse against the seller for any cause whatsoever, including in respect of apparent defects or hidden defects” (aucun recours contre le vendeur pour quelque cause que ce soit, notamment en raison des vices apparents, des vices cachés). The buyer subsequently discovered an undisclosed underground waste-water network. The Court held that the clause, which concerned the physical state of the property, did not expressly exclude the warranty against hidden servitudes. The Court stated the principle clearly: “à défaut de clause expresse contraire, le vendeur est tenu de la garantie des servitudes non apparentes non déclarées lors de la vente” — in the absence of an express clause to the contrary, the seller is bound by the warranty against non-apparent servitudes not declared at the time of the sale.

This is a critical point for the non-resident seller. The standard exclusion clauses found in many French sale deeds — clauses excluding liability for “vices apparents” (apparent defects) or “vices cachés” (hidden defects) — do not, in and of themselves, exclude the seller’s warranty against undisclosed easements. That warranty arises from a separate legal regime (the warranty against eviction under Articles 1626 and following), and the Cour de cassation requires that any exclusion of that warranty be express. A non-resident seller who is aware of an informal right of way, an underground pipeline, or a shared access arrangement affecting the property must, at a minimum, ensure that the sale deed formally declares it — and ideally, that the buyer explicitly acknowledges the declaration. Silence invites a claim for damages, potentially years after the sale.

For the non-resident seller, the practical implications of this legal framework are threefold. First, before listing the property, engage a local professional to review the title deeds and identify any servitudes, both declared and undeclared but known from use. Second, instruct the notaire handling the sale to include in the compromis and the acte authentique a comprehensive declaration of all servitudes affecting the property. Third, consider whether the sale should be accompanied by a specific warranty agreement — particularly if the buyer is a fellow non-resident who may lack independent means of investigating the property’s legal status.

It is also worth noting that the seller’s disclosure obligations under French law are not limited to the documents listed in the diagnostic file. The seller who has carried out unauthorised works (travaux sans autorisation) — for example, an extension, a pool, or a conversion of a garage — must disclose this to the buyer, even if no formal diagnostic obligation applies. The buyer who later faces an enforcement notice from the mairie (town hall) will have a strong claim against the seller, on the dual grounds of the pre-contractual duty of information and the warranty against eviction. For a non-resident seller who may have purchased the property years earlier without full awareness of the planning history, a review of the certificat d’urbanisme (planning certificate) and the building’s planning file at the mairie before marketing the property is a prudent precaution.

Conclusion

Selling a property in France as a non-resident is a legally structured transaction, not an informal private arrangement. From the drafting of the estate agent’s mandate through the diagnostic dossier, the preliminary contract, the authentic deed, and the post-sale warranties, French law imposes on the seller a coherent set of obligations that cannot be avoided by silence, by geographical distance, or by standard-form exclusion clauses.

The Cour de cassation’s rulings in recent years have consistently reinforced the seller’s duty of proactive disclosure — particularly concerning hidden defects, undisclosed servitudes, and urban planning restrictions — and have narrowed the effectiveness of boilerplate exemption clauses. A non-resident seller who understands the architecture of these obligations, prepares the diagnostic file rigorously, and engages a notaire with experience in cross-border transactions will be well placed to complete the sale efficiently and with minimal exposure to post-completion claims. Those who treat the transaction as a merely administrative formality, by contrast, run a real risk of finding themselves before a French court years after they believed the matter was closed.

For foreign owners seeking assistance with the sale of their French property — from the initial mandate to the authentic deed and the management of post-sale warranties — the real estate team at Kohen Avocats provides English-language legal support throughout the process.