It is not unusual for several months to elapse between signing of the sale and purchase contract and the deed of conveyance.
The reasons for the delay may in part be due to the indolence of the conveyance team in the notaires office, but it is more often due to the legal timescales that are set for each stage of the process. This is particularly the case for the two-month statutory period that is set aside for certain statutory bodies to decide whether they wish to pre-empt on the purchase of the property.
In the intervening period, a lot of water can pass under the bridge, not the least of which is that the seller (or the buyer) has moved to a new home in the sky.
The risk is even greater where options are taken on land or property to buy in the future, or where a right of first refusal is granted.
In such circumstances, does the sale and purchase contract still stand? Are the heirs obliged to continue the commitments of the deceased seller or buyer?
Although the sale and purchase contract (compromis de vente) is often referred to in France as a 'preliminary contract (avant-contrat) it is a contract that is binding on both the seller and the buyers, subject to any conditional terms in it.
Only the buyer is given a 10-day cooling-off period, at the end of which the search formalities take place, concluding in signing of the conveyance (acte authentique).
There is ordinarily no provision in the contract stating what should happen in the event that one of the parties expires before completion.
Fortunately, the issue is covered in statute law, with Article 724 of the Civil Code stating: 'The heirs designated in law shall be seized automatically of the deceased's property, rights and actions'.
Thus, where the seller dies, the heirs are required to proceed with the sale (or purchase) of the property. The courts have previously rules that this applies even where the heir(s) may be a minor, when the guardian would be required to execute the deed.
In practice, there are likely to be substantial delays to the process, whilst the succession is processed, and it may even be possible, in exceptional circumstances, for the heirs to challenge the sale.
Matters are not quite the same for the buyer, as the heirs may not have the funds to purchase the property, particularly if it was to be financed by a mortgage.
Nevertheless, in such circumstances, the seller could seek damages from the heirs. If there was mortgage protection insurance in place, then the heirs would be expected to make use of it to purchase the property. The only other option open to the heirs would be to renounce the succession.
To deal with such circumstances, it is possible to insert in the sale and purchase contract that the contract only remains valid where both the seller and buyer are still alive. Where there is more than one buyer and seller, the clause could be made operative in the event of the death of any of the purchasers.
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