By a decree of December 18, 2017, whose provisions came into force on 1 January 2018, the form for the establishment of the statement of natural and technological risks, now entitled "state of risksand soil information" (Etat des servitudes "risques" et d'information sur les sols, (ESRIS)), was modified. The new form modifies the information to be provided by the seller or lessor when a Technological Risk Prevention Plan (PPRT) has been established. Furthermore, the new form has integrated the information, required by the Alur law, relating to soil pollution requiring the latter to report whether the land is situated in the soil information sector (SIS).
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Sellers and lessors get filling in your modified forms!
As part of its obligation to provide information, the seller or lessor is required to annex to any sale or leasing agreement a statement of natural, mining and technological risks (ERNMT), on the basis of information made available by prefectoral order dating back less than six months (failure to comply with this six month period shall be deemed as an absence of ERNMT). The decree modifies the form which is now entitled "state of risks and soil information".
In this new form, the PPRT section has been modified and requires the seller or lessor to provide additional information. For the record, the Technological Risk Prevention Plans (PPRT) aim at organizing cohabitation between urban areas and industrial sites in order to limit, through the implementation of preventive measures, exposure of the riverside communities to the consequences of industrial accidents.
The seller and lessor must now specify whether the real estate is located in an expropriation, abandoned or prescription area. If the building is located in the work prescription area or whether the operation (lease or sale) concerns housing, they must also indicate whether the prescribed works have actually been carried out. If the operation does not relate to housing, information as to the types of risks that the building is exposed to and their severity, probability and kinetics must in any case be attached to the deed of sale or lease agreement.
In addition to these changes, is the long-awaited amendment relating to soil pollution. Created by the Alur law and implemented by the decree of 26 October 2015, this mechanism obliges sellers and lessors, when the land is situated in the soil information sector (SIS), to specify so. The latter will now have to indicate such directly in the new form, provided that the prefect has identified the polluted sites of the department (the latter having until 1 January 2019 to establish the SIS).
It is imperative for the sellers and lessors to incorporate these changes so as not to be exposed to sanctions applicable in the event of non-compliance with this obligation to provide information. The Environmental Code provides that the purchaser or lessee may in this respect request termination of the contract or that the judge reduces the price/rent. It should be noted that case-law is disparate on this point and some jurisdictions require the purchaser/lessee to demonstrate harm, although the mere failure to annex such document should be sufficient for the lessee/purchaser to make a claim.
Sellers and lessors must therefore be extra vigilant and ensure that the changes in the form and the obligation to transmit such new information to purchasers and lessees are taken into consideration.