Buying in France from abroad
It arrives in a few lines before the first viewing of a property sold without a listing, and it is signed unread. A discretion undertaking is nevertheless a contract: its wording decides what you will be able to have checked. This dossier gives the reading of it, and the signal that should alert you.
By Jean Mascla, founder of Home Select Updated · 5 min read
It arrives in a few lines, before the first viewing, and it is signed unread because it looks symbolic. An undertaking of discretion is nonetheless a contract, and its drafting decides what you will be able to have checked.
A confidentiality clause in a property sale covers the circulation of information: the address, the photographs, the asking price, the seller’s identity, sometimes the very fact that the property is for sale. It protects a situation, an estate, a separation, a move, a recognisable address, and it is the logical counterpart of access before publication.
It never covers statutory duties to inform. No contractual clause sets aside the technical survey file of article L271-4 of the Construction and Housing Code, the co-ownership documents of article L721-2, the declaration of intent to sell or the notary’s checks. Those are owed to you, and owed in exactly the same way as on a property displayed in a window.
The distinction looks obvious written down, and is far less so in a conversation where you are reminded that "all of this is confidential". The useful reflex fits in one question: does this information belong to the seller’s discretion, or to a duty the law imposes on them?
A good clause is recognised by the fact that it answers four questions. A clause that does not can be completed, and that is asked for without aggression, because it is customary.
Saint-Paul-de-Vence, Côte d’Azur
A confidentiality clause opposes circulation, never verification. When an intermediary invokes secrecy to refuse to produce the surveys, the general meeting minutes or the identity of the licence holder they work under, it is not a clause speaking, it is reluctance.
It is one of the six checks we set out for spotting a fake off-market, and the most revealing, because a genuinely discreet seller has no reason to object to their property being examined by the buyer’s professionals.
One last side effect deserves naming. An undertaking of discretion sometimes deprives a buyer of the use they would have made of the information: showing the photos to an architect, asking a friend in the district, comparing with a neighbouring listing. So what you do not have has to be rebuilt another way.
That is exactly what our page on valuing a property with no public comparable describes: the transfers actually recorded at the address, the documented differences, and the lender’s valuation, which costs the property without being party to the transaction. None of those three sources breaches a discretion clause, and they are enough.
Home Select searches and negotiates for the buyer, and for the buyer alone. Your property finder checks the property, the building’s documents and the calendar before you commit, and flags what deserves a question to the notaire or a clause in the offer.
Around the purchase, we introduce the partners used to buyers who live abroad: bilingual notaire, mortgage broker, lawyer, sworn translator. Each acts under their own responsibility; we keep the calendar, from the offer to the handing over of the keys.
It should not, and that is the point to negotiate before signing. An undertaking of discretion must expressly carve out your notary, your banker, your adviser and the professional representing you, failing which you are signing away the ability to have what is offered to you examined. That carve-out is added in one sentence, and a serious seller does not object to it.
Never. No contractual clause sets aside a statutory duty to inform. The technical survey file of article L271-4 of the Construction and Housing Code, the co-ownership documents of article L721-2 and the notary’s checks apply whatever discretion the parties have agreed. A refusal to produce those documents is not a discretion clause, it is a signal.
Contractual liability, and most often a fixed penalty set by the clause itself. Read that amount before signing: a penalty disproportionate to the property’s price is grounds for discussion, and a clause with no defined duration or scope is hard to comply with because you no longer know what it covers.
A good clause is recognised by the fact that it answers four questions. A clause that does not can be completed, and that is asked for without aggression, because it is customary.
A confidentiality clause opposes circulation, never verification. When an intermediary invokes secrecy to refuse to produce the surveys, the general meeting minutes or the identity of the licence holder they work under, it is not a clause speaking, it is reluctance.
One last side effect deserves naming. An undertaking of discretion sometimes deprives a buyer of the use they would have made of the information: showing the photos to an architect, asking a friend in the district, comparing with a neighbouring listing. So what you do not have has to be rebuilt another way.
A confidentiality clause in a property sale covers the circulation of information: the address, the photographs, the asking price, the seller’s identity, sometimes the very fact that the property is for sale. It protects a situation, an estate, a separation, a move, a recognisable address, and it is the logical counterpart of access before publication.
Further reading
Preparing a purchase in France from abroad, or already an owner there? Describe your situation: a Home Select property finder answers within one working day, and the file starts with the right partners, in the right order.
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