How to challenge the court-appointed expert's report in France

The expert appointed by the court has filed the preliminary report (pré-rapport), or the final report, and the value adopted is not one your client can accept. There are still ways to act, but they are confined within time limits and only carry weight if they rest on precise technical elements. This guide describes the three routes, the written observations to the expert (dire), the critical review by a party’s expert and the application for a supplement or a new appraisal, and what, in a valuation report, is really open to discussion.

What happens in practice

A court-ordered expert appraisal (expertise judiciaire) follows a procedure governed by articles 232 to 284-1 of the French Code of Civil Procedure. The expert convenes the parties, inspects the property, requests documents (article 275) and holds one or more meetings. The expert then sends a preliminary report, sometimes called a summary note, setting out the findings, the method and the provisional value, and fixing a time limit for the parties’ observations. This step is not required by the text, but it has become general practice and is often written into the mission.

The parties reply with dires, written observations sent to the expert through their lawyer. The expert must take them into consideration and state in the report what was done with them (article 276). The final report is filed with the court registry (article 282). The discussion then moves before the judge: submissions, application for a supplement, hearing of the expert, possibly a new appraisal.

The most effective window is that of the preliminary report. Once the report is filed, the expert has completed the mission and can no longer amend it on his own initiative. Before filing, he can still correct a comparable, a floor area, a calculation.

What French law says

The dire (article 276). The expert takes the parties’ observations or claims into consideration. When they are in writing, he attaches them to his opinion if the parties so request. He is not bound to take account of those received after the time limit he has set, save for a serious reason. He states in his opinion what he has done with them.

The supplement (article 245). The judge may always invite the expert to supplement, clarify or explain his findings or conclusions, either in writing or at a hearing.

The hearing (article 283). If the judge does not find sufficient clarification in the report, he may hear the expert, with the parties present or summoned.

The judge’s freedom (article 246). The judge is not bound by the expert’s findings or conclusions. He may order a new appraisal, entrusted to the same expert or to another, giving reasons for the decision.

The limits of the opinion (articles 233 and 238). The expert carries out the mission personally; he may seek the opinion of a sapiteur, a specialist in a field other than his own (article 278). He answers only the questions put and gives no assessment of a legal nature. A report that decides a question of law, for example the valuation date in a partition, goes beyond the mission on that point.

Procedural regularity (article 175). The nullity of expert proceedings is subject to the rules governing procedural acts: a grievance must be shown, and the objection raised before any defence on the merits or as soon as the defect is known, depending on the case. The judge in charge of supervising expert appraisals deals with difficulties arising during the mission (article 279).

What a valuation report changes

To challenge a valuation report, you need to know what in a valuation report is open to discussion. A critical review generally examines seven points.

1. The comparables. Are they completed sales or listings? Are they dated, located, described? Have they been adjusted for floor area, condition, location, date? A sale that cannot be identified cannot be checked.
2. The floor areas. Habitable area, weighted area, usable area: is the convention adopted consistent with that of the comparables? A basement counted as habitable area changes the unit value.
3. The condition of the property. Are the works retained recorded and costed by quotes, or turned into a flat-rate deduction? On this point, preferring a quote to a flat-rate deduction is a simple rule.
4. The date and the basis of value. Does the report value at the date set by the mission, on the basis requested (market value, rental value)? A value given “as at today” when the mission asked for a historical value calls for a dire.
5. The methods. A single method for an investment property, or a capitalisation rate without a source, are weak points. The Charte de l’expertise en évaluation immobilière (the French property valuation charter) recalls that no method is universal (Title III, chapter 8).
6. The arithmetic. Areas, unit prices, totals, weightings: a calculation error can be demonstrated in one page.
7. The documents ignored. A lease, a survey, a planning permit, minutes of a general meeting sent to the expert and not dealt with.

The critical review produces a technical note. It is used to draft the dire with the lawyer, then, if necessary, to support an application for a supplement or a hearing. It does not replace the court expert’s report and does not claim its weight: it is a party’s document, whose value the judge assesses. Its strength comes from its precision, not from its volume.

A worked example

Court-ordered sale (licitation) of a house in LORIENT between two brothers. The court-appointed expert concludes at €410,000 in the preliminary report. The brother who wishes to be allotted the house asks me for a critical review.

Three points stand out. Two of the six comparables are listings, not sales, taken at their asking price. The converted basement of 30 m² was counted as habitable area, whereas the comparables are expressed in strict habitable area. Finally, the expert applied a flat-rate deduction of 5 % for the roof, whereas a quote of €38,000 is in the file.

The dire presents these three points with the documents: DVF references (the French public database of property sales) for the actual sales, a dimensioned plan, the quote. The expert corrects in the final report: comparables limited to sales, area reduced to 120 m², roof deducted at the quoted amount. The value moves to €372,000. The difference of €38,000 translates into €19,000 on the equalising payment (soulte). The critical review represented 15 hours, that is €975, and drafting the dire with the lawyer 4 hours, that is €260.

Common mistakes

• Letting the preliminary report deadline pass and disputing only in the submissions. The judge may order a supplement, but nothing obliges him to, and the report filed carries the authority of a complete opinion.
• Drafting a dire of opinion, without documents. “The value is too high” calls for no correction. “Comparable no. 3 is a listing, the sale was completed at 15 % less, deed of 12 March, reference attached” does.
• Producing a competing single-party report instead of a dire. It carries little weight against a court expert’s report, and it does not tell the expert what to correct.
• Disputing the valuation date before the expert. It is a question of law, set by the mission; it is argued before the judge, asking if necessary that the expert value both dates.
• Waiting for the final report before seeking assistance. The party’s technical adviser is more useful before the site meeting than after filing.

What to gather

• The preliminary report or the report, with all its appendices, and the decision that sets the mission.
• The time limit set by the expert for dires and the dires already exchanged.
• The documents sent to the expert and the acknowledgement of their communication.
• The documents the expert did not have: comparable sales known to the client, quotes, surveys, leases, dimensioned plans.
• Earlier reports or opinions on the same property.
• The points your client disputes, in order of their financial importance.

Timeframe and fee

The critical review of a report represents at least 15 hours of work, that is €975 at the rate of €65 per hour, and it is delivered in about three weeks, faster when the deadline for dires requires it and the documents are complete. The assistance that follows, drafting the dire with the lawyer, preparing a meeting, reading the final report, is charged on time spent, €65 per hour. A 50 % deposit is requested on signature of the valuation contract. VAT not applicable, article 293 B of the French General Tax Code. Amounts are travel not included, charged at €65 per hour or part hour from PONT-L’ABBÉ when a site meeting is necessary.

If a complete substitute value is needed, a full valuation with inspection is added, from €975. Details are on the Court expert, joint valuation and litigation support page and on the Fees page.