Real-estate diagnostic: when, how, who pays?
Before the sale or rental, the law requires the establishment of a technical diagnostic file (DDT). Its objective: to inform and protect the buyer or the tenant.
What to do if a diagnosis produced during the sales agreement, is no longer up to date on the day of signing the notarial act?
In terms of sales, if one of the documents (lead, asbestos, termite diagnostics, energy performance, gas and electricity installations, non-collective sanitation) produced during the sales agreement is no longer valid, on the date of signing the notarized act of sale, a new diagnosis must be established
Who has to pay the real-estate diagnostic?
In case of a sale
The cost of establishing the technical diagnostic file is borne by the seller. However, the parties may agree to impose the cost of these services on the purchaser.
In case of a rental
The law provides that the technical diagnostic file is provided by the lessor. This is established through his exclusive expense.
What is the cost of establishing diagnostics?
Prices may vary.
- The cost of establishing diagnoses depends on the area of the property and the number of diagnoses which need to be carried out. The prices charged by the real estate diagnosticians vary.
- The state of the risks and pollution is free, as long as it can be established directly by the seller or the lessor, if need be, with the help of the professional who is involved in the sale or rental of the property. In the event that the diagnostician is called upon to establish the latter, the costs vary from 20 to 40 €; it is sometimes provided.
- The cost of controlling the sanitation facilities, carried out by the public service for individual waste water (SPANC), may also vary.
Can a diagnosis oblige the owner to carry out works?
Certain diagnoses (condition of the interior gas installation, condition of risks and pollution, diagnosis of energy performance and condition of the electricity installation) do not entail any obligation to carry out works, but these can lay down recommendations for works, in order to improve the technical condition of the sold property. However, the law entails certain constraints for four diagnoses:
The risk of exposure to lead
If the report highlights the presence of degraded coatings which may contain lead, at concentrations which are higher than the regulatory limit, the owner must inform the occupants and those brought to do work in the building or part of building concerned and carry out the suitable works. In the case of rental, the so-called works are borne by the landlord.
The state mentioning the presence or absence of asbestos
If the presence of asbestos is detected, the report recommends locating the materials and products in list A (the most dangerous):
- either a periodic assessment of the state of conservation of materials and products containing asbestos. The owner must carry out this assessment, within a maximum of 3 years from the date of the report’s delivery.
- or dust contamination in the air, to determine the concentration of asbestos. The owner must have this assessment carried out within 3 months from the date of the report’s delivery.
- either asbestos containment or works removal. In this case, the diagnostician is forced to send a copy of his report to the prefect of the department of the concerned accommodation. It should be noted, that if the owner does not take action, the prefect can carry out the location scouting and works, at the latter’s expense.
In order to identify materials and products in list B, the report mentions recommendations in the event of a risk of rapid deterioration of asbestos.
Condition related to presence of termites
If the presence of termites is detected, the seller must make the declaration to the town hall, during the month following the findings. Failing that, he shall receive a fine. The mayor may order the owner to conduct an eradication. In case of the owner’s negligence, the mayor can have these carried out at the latter's expense.
If the installation is declared as non-compliant, the owner must carry out the mandated work, within 4 years of the notification document. If on the day of the sale these have not been carried out, the buyer must bring it into line, within 12 months of the sale.
Which diagnostician should we use?
If the monitoring hasn’t already been carried out, at the request of the municipality by a public official of non-collective sanitation (SPANC), the seller must have this monitoring established by the competent SPANC for his municipality. Contact details can be obtained from the town hall.
Risks and pollution (ERP)
It is directly established by the seller or the lessor, if need be, with the help of a professional. The appropriate form should be completed, using the information of the orders of the prefect.
For other diagnoses, the diagnostician must provide the seller with an affidavit , through which he guarantees:
- have the required skills for the diagnoses which need to be established.
- have subscribed to a professional liability insurance.
- maintain "no link likely to affect the impartiality and independence.
The seller must make sure that the diagnostician he calls upon, has a certificate of expertise, insurance and independence. If the diagnostician doesn’t comply with the rules, sanctions shall be applied to him, but also to the owner who uses his services.
Finding a professional
On the Ministry of Territorial Equality and Housing website, a directory of french diagnosticians has been put online. It assembles a list of all the people with a valid certification.
Who is responsible in case of a mistake?
If a diagnosis turns out to be wrong, the buyer or the tenant can ask the seller or the lessor for justifications. The latter can in turn go against the professional whom he called upon, hence the importance of checking the insurance in advance. The responsibility of the diagnostician in regard to his client (lessor or seller) may be liable, depending on the case.
DPE, a peculiar case
On the other hand, the energy performance diagnosis is of information value. In the case of a consumption estimation error, the seller or the lessor cannot act against the professional. However, the purchaser or the tenant could bring an action against the diagnostician, who made the mistake.
The Carrez law certification
When the actual area is more than 5% less than the one mentioned in the act, the purchaser of a co- ownership share may request a reduction in the sale price, in proportion to the number of missing square meters. Conversely, if the actual area exceeds the area which is mentioned, the seller cannot obtain an increase in the price.
What are the consequences if a diagnosis is missing?
Missing diagnosis for a sale
When signing the official act of sale, if the diagnosis of lead, asbestos, termites, gas, electricity, sanitation is missing, the seller cannot be exempt from the corresponding latent defects guarantee . Therefore, he shall remain responsible, with the purchaser in the event a defect were to be discovered (for example: presence of asbestos).
If the risks and pollution diagnosis is missing, the buyer can ask to cancel the sale or ask the judge for a reduction in the price. In the same way, if the area of the co- ownership lot is not indicated in the sales agreement (act of sale), the purchaser may request the invalidity of the act, with the omission before the District Court, during the month of this act’s signature. However, if the area of the co- ownership lot is missing in the sales agreement and it is then mentioned in the act of sale, the invalidity cannot be invoked.
Last but not least, the absence of the energy performance diagnosis is less serious since it does not lead to any sanction.
Missing diagnostic for a rental
When the owner does not establish any report of risk of exposure to lead or when he does not carry out the necessary works, if need be before the rental, this is considered as a breach of the obligations concerning safety and prudence, likely to engage the latter’s criminal liability.
When the report of risks and pollution is missing, the tenant can ask the judge to resolve the lease or reduce the rent.
However, if the DPE is missing, theoretically there is no penalty.
- I'm selling my main home acquired 5 years ago. The notary claims a missing diagnosis: ESRIS. It was not provided to me 5 years ago. Am I obliged to have it done?
- I am a tenant of my principal residence and owner of my second home. I want to sell it so I can buy a new home that I will assign to my main home. This residence is worth 300.000 €, but I still have 100.000 € of credit to refund. [...]
- Seven years ago, I had my house extended but I did not take out property damage insurance. I wish to sell my property but the notary tells me that I must personally guarantee the purchaser in case of occurrence of damage covered by the ten-year guarantee.