THEA person who buys an off-plan housing, without having been able to realize its dimensions during a visit, needs to know what the advertised area covers: does it include in particular the small heights under the ceiling (where the one cannot stand upright), verandas or balconies? The texts applicable to the sale in the future state of completion (VEFA) do not specify this. The Court of Cassation has therefore just remedied this lacuna, in the following circumstances.
In 2013, M. and Mme X buy off plan a three-room apartment to be built in the attic of a condominium, and have “A surface area of 53.8 m²”. After delivery of the apartment, they have it measured by an expert who notes “A floor area of 63.90 m²” and “A Carrez law area of 50.8 m²”.
The surface according to the Carrez law (of December 18, 1996), Where ” living space “, intended to protect the buyers of co-ownership lots from dishonest sellers, appears in article R111-2 du building and housing code. It is “The floor area built, after deduction of the areas occupied by the walls, partitions, steps and stairwells, ducts, door and window openings “; it excludes in particular “Parts of premises with a height of less than 1.80 meters”.
In this case, the X expert believes that the difference between the area mentioned in the sales contract (53.8 m²) and the actual living area (50.8 m²) comes from the parts of the apartment whose height under the ceiling is less than 1.80 meters. Taking into account the deficit observed (5.58%), the X ask the company Les Jardins du moulin, which sold them the accommodation, a reduction in its price: article 1619 of the civil codel authorizes this practice, when more than 5% of the expected surface is missing.
The company replies that the Xs cannot complain about an area deficit, since they do have the 53.8 m² provided for in the contract, which does not refer to the living area. Indeed, the articles L 261-10 and R 263-13 of the construction and housing code, which apply to housing sold off-plan, provide that the deed of sale must describe ” surfaces », Without further clarification, and not the living space.
The courts of first instance and of appeal agree with him: “It should be considered that the consumer protection provisions provided for by the Carrez law are not applicable to this contract. “ As for the contractual documents, “They do not demonstrate that the parties wanted to exclude premises with a height of less than 1.80 meters”, underlines the Paris Court of Appeal, which refuses a reduction in the price, on September 27, 2019.
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