New build problems?
We've all seen the pictures. Rows of newly built apartments in France or Spain or Portugal, but the building site is Not Quite Finished. Frustrated buyers stand with their hands on their hips, wistfully surveying the scene. The units look as though they are complete, but drainage pipes run out of the buildings and then... go nowhere. The electricity company has refused to connect the power without an expert's certificate. The pool is a deep green lagoon. Rumours abound of sub-contractors walking off site, because they haven't been paid. What happened to the vision presented in the brochure? The beautiful new apartment, with brand new fittings? The smiles of like minded people, all having a really good time? Like all countries, France has its share of rogue developers and buyers can be left staring at an unfinished site, rather than the kids playing in the pool. So when complaints are ignored and emails unanswered, what can buyers do to get the builders back to work?
France prides herself on her consumer protection laws which, in theory, should protect a buyer of a new build property. The developer must have a completion guarantee, usually from a bank or insurance company. The idea is that if the contractors have abandoned the site for more than 15 days, a buyer has the right to claim on the guarantee without any further formality. This law was introduced to correct the imbalance between a wealthy developer and a buyer. If problems arose, there was no need to go to court, just write a letter to the guarantor. And get them to instruct the artisans to finish the site. However, the developers quickly found a way round this. Their contractors were sent back for a day, to prove continuity, and promptly left for another site the following day. Buyers who had taken delivery of their apartments could also, in theory, claim on the ‘perfect delivery' guarantee from the developer (again backed up by an insurance policy), but again the developer could drag out the process of fixing the faults, more or less at will if he was so minded.
The completion guarantee is wonderful if the developer goes bust, but, until then, the buyer must find another way of exerting pressure on a foot dragging developer. Of course there's nothing to stop a buyer from taking the developer to court for late delivery of the apartment. If the completion date in the reservation agreement has passed, then a buyer can sue the developer for breach of contract, but be careful. There are numerous grounds (in the agreed deed of sale) on which a developer can claim a postponement of completion, e.g. strikes by subcontractors, insolvency of suppliers etc. So it would take a brave buyer to launch into litigation not knowing whether he had the legal grounds to do so.
The answer for the buyers is to get together and hunt as a pack. The risks and the costs of litigation are substantially reduced and developer would be far more likely to take notice of a well funded, and well advised, group of buyers, rather than any individual. And French law provides a perfect vehicle for such an action. Under the laws of 1901, a group of like minded folk can form an association which can collect funds and bring legal proceedings in court. The formalities are simple. The members appoint a director, agree on their objects and register themselves at the Prefecture. The association then finds an avocat to plead the case of the owners collectively, reporting to the director on behalf of the association.
The association mustn't be confused with the copropriété, which is the owner's management organisation for the common parts of the site. Buyers are usually barred (under the term of their deed of sale) from using the copropriété as a vehicle for litigation against them, so this is not an option.
In this age of email, the administration of the association is a relatively simple process. The director gets hold of the email address of each member and simply circulates the email correspondence, when it leaves or arrives. You may of course need a bilingual intermediary for the association (see below!). Without doubt, if you wish to hit the developer as hard as you can, the owners' association is the way forward. And then maybe the pool will have turned blue for your summer holiday!
Philip Winter-Taylor
Tel: 01233 666968
Email wintertaylors@aol.com
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