Commentaire de l’arrêt de la Cour de cassation, 3e chambre civile, 29 octobre 2015

Le mandataire d’un promoteur immobilier, intermédiaire spécialisé, est tenu vis-à-vis des acquéreurs d’un logement dans le cadre d’une opération de défiscalisation immobilière, d’une obligation d’information voire même de conseil à leur égard.

 

Abstract:

Synthesis Court of Cassation, 3^e Chambre civile, 29 octobre 2015

On 29th of October 2015, the French Court of cassation handed down an innovative decision on the liability of intermediaries in the context of property tax exemption.

The present case concerned a real estate development project alleged to be subjected to tax exemption. The project consisted in the renovation of a castle orangery for the purpose of apartment rental.

A financial intermediary was given mandate by the land developer to commercialize the apartments. The intermediary has entered negotiations with a wealth management adviser of a couple of buyers granting them a tax exemption on works realized in the apartments under article 31 of the French Code. The buyers had to buy the apartment and rent it once the renovation works were finished.

The buyers went through tax reassessment as the tax administration said the works were reconstruction works and not only improvement works as defined in article 31 of the Tax Code.

The court of Cassation confirmed the court of Appeal’s decision which ruled that the financial intermediary was liable towards the buyers for the damage directly caused by the failure of tax exemption of the works carried out as part of the project.

According to the court, the intermediary as a specialized professional could not ignore the difference between improvement works defined in article 31 of the Tax code and reconstructions works that are not eligible for tax exemption. Thus he should have drawn the buyers’ attention on the necessary timeframe for renting and the impossibility to deduce the majority of work costs for this property transaction.

It is an interesting decision as it retains the liability of the intermediary instead of the contractual liability of the wealth management adviser.

This case follows the recent case law regarding tax exemption. It strengthens the obligations of the intermediary which has to inform and advise the buyer even if he is not contractually bound to him.