Getting the immobilisation fee back: late or non-compliant loan refusals

By Maître Léa Scemama, real estate lawyer. Published 6 November 2026. Reading time: ~15 min.

The sale fell through, the bank turned down the loan, and the immobilisation fee is still held by the notary. The seller refuses to release it because the loan refusal came too late, or because it does not match the amount, term or interest rate set in the promise to sell. Here is what actually decides the fate of those funds under French law, up to date with the 2026 case law, and how buyers and sellers can defend their position.

The starting rule: full refund if the loan is refused

Under a unilateral promise to sell, the seller (the promisor) reserves the property for the buyer (the beneficiary), who has a set period in which to exercise the option. In return for taking the property off the market, the beneficiary undertakes to pay an immobilisation fee, in practice between 5 and 10% of the price, most often 10%. Only part of it, frequently half, is paid up front and held in escrow by the notary; the balance falls due only if the beneficiary walks away although the conditions precedent have been met. Article 1124 of the Civil Code defines the unilateral promise as the contract by which the promisor grants the beneficiary "the right to choose whether to conclude a contract".

When the buyer finances all or part of the price with a property loan, the law protects their position. The deed must state whether the price will be paid with or without a loan (article L. 313-40 of the Consumer Code), and it is then entered into subject to the condition precedent of obtaining that loan, for a period of at least one month from signature of the deed, or from its registration for a private deed that must be registered (article L. 313-41).

Above all, if the condition is not fulfilled, article L. 313-41 provides that any sum paid in advance by the buyer is "immediately and fully refundable without any deduction or compensation on any ground whatsoever". This rule is mandatory (article L. 314-26): the promise cannot set it aside.

Protection that does not cover every buyer

First, it only covers certain purchases: a home, premises used for both residential and professional purposes, or land intended for building one of them (article L. 313-1, 1°). An individual who buys an office, a shop or a warehouse on credit does not benefit from it.

Second, it excludes certain loans. Article L. 313-2 excludes in particular loans intended to finance a business activity, including those of persons who, under their corporate purpose, provide buildings for ownership or use.

In practice, an SCI whose corporate purpose is to acquire and let buildings may be refused this protection, even if it argues that the purchase was for family use. In that case, the court of appeal had applied the Consumer Code and held that the clause setting a deadline for filing loan applications had no effect; the Court of Cassation overturned that decision, in view of the SCI's corporate purpose and the purpose of the loan (Cass. 1re civ., 14 October 2015, no. 14-24.915). For these buyers, it is therefore the terms of the promise, and the general law of contract, that govern.

Who has to prove what?

Almost every dispute turns on a single question: did the condition precedent fail in the normal way, or did the buyer prevent it from being fulfilled? Article 1304-3 of the Civil Code sets the rule: "A condition precedent is deemed fulfilled if the party who had an interest in it prevented its fulfilment." If the condition is deemed fulfilled, the buyer is treated as if the loan had been granted, and the seller may keep the immobilisation fee.

The case law organises the burden of proof in two stages.

1. The buyer must first prove that at least one loan application matching the terms set in the promise was submitted (Cass. 3e civ., 30 January 2008, no. 06-21.117, published in the Bulletin). It is not for the seller to show that the application was irregular.
2. Once that proof is made, it is for the seller to show that the buyer caused the condition to fail through their own fault, for example through manoeuvres. Merely over-optimistic expectations about one's borrowing capacity are not enough (Cass. 3e civ., 12 July 2018, no. 17-21.763).

A loan refusal that does not show the right terms

This is the most common dispute when a property transaction falls through. The promise usually sets a maximum amount, a maximum term and a maximum interest rate. The buyer must apply for a loan within those limits, and be able to prove it.

The rate: asking for less than the maximum is a fault

This is the most counter-intuitive rule for buyers. Asking for a lower rate than the agreed maximum seems sensible, and yet the Court of Cassation considers that such an application does not match the agreed terms.

In 2013, it held that an application at 4.20% where the promise set a maximum rate of 4.75% did not match the terms of the promise (Cass. 3e civ., 20 November 2013, no. 12-29.021, published in the Bulletin). It kept to that line on 25 June 2026, in a ruling not published in the Bulletin: applications at 1.30% against a maximum rate of 1.75% do not comply, and the court of appeal could not accept them on the ground that the gap was "not out of proportion" (Cass. 3e civ., 25 June 2026, no. 24-14.137). The promise did state, admittedly, that any non-compliant application, in particular as to the rate, would cause the condition to be deemed fulfilled. In that case, the immobilisation fee was €147,500.

Amount and term

Asking for a higher amount than the one stipulated is also a breach: the Court of Cassation upheld a court of appeal that had concluded the buyer had prevented the condition from being fulfilled (Cass. 3e civ., 19 May 1999, no. 97-14.529, published in the Bulletin). The same requirement applies to the term: the Court overturned a court of appeal that had accepted a refusal letter mentioning neither the term nor the rate of the loan applied for, when it was for the buyers to prove that their application complied (Cass. 3e civ., 30 January 2008, no. 06-21.117, published in the Bulletin).

Conversely, the buyer does not have to settle for less: stating a maximum amount in the promise does not oblige the buyer to accept an offer for less than the amount applied for (Cass. 3e civ., 14 December 2022, no. 21-24.539, published in the Bulletin). In that case, the bank would only lend €407,000 of the €414,000 requested: the promise lapsed and the failure of the condition was not attributable to the buyers.

Number of applications and named lenders

If the promise requires several applications, one is not enough. On 27 November 2025, the Court of Cassation overturned a court of appeal that had accepted a single refusal, when the clause required the beneficiary to file two loan applications at the same time and treated any non-compliant application as fulfilling the condition (Cass. 3e civ., 27 November 2025, no. 24-11.704).

On the other hand, going through a broker is accepted: a buyer who instructs a mortgage broker meets the obligation to apply to a lender (Cass. 3e civ., 12 February 2014, no. 12-27.182, published in the Bulletin). In practice, the buyer still needs to be able to prove exactly what application the broker submitted: that is what was missing in the case described below.

What to check on a loan refusal certificate

Loan application or refusal sent out of time

Promises often contain three different deadlines, which must not be confused because they do not carry the same weight.

The filing deadline: a requirement the promise cannot add

For protected buyers, the Court of Cassation holds that the mandatory provisions of the Consumer Code "prohibit requiring the buyer to file a credit application within a given period", because such an obligation adds to the statutory requirements (Cass. 3e civ., 12 February 2014, no. 12-27.182, published in the Bulletin). That ruling was given under former article L. 312-16. The Court of Cassation has since confirmed that this provision "became article L. 313-41" (Cass. 3e civ., 11 July 2024, no. 22-22.058, published in the Bulletin), which restates the condition precedent and the refund rule in the same terms: nothing in the new wording justifies departing from that solution.

In practice, a late filing does not in itself deprive the buyer of the refund. The debate then moves to whether the application complied and whether the long-stop date was met. A filing so late that the bank could not answer in time remains an argument the seller can raise.

The deadline for evidencing refusals: it all depends on the clause

Many promises drawn up by notaries provide for a two-step mechanism: if the beneficiary does not evidence the outcome of their applications by the agreed date, the promisor may serve formal notice to do so within eight days; failing that, the condition is "deemed to have failed" and the promise lapses. But the clause often adds that the beneficiary may recover the fee by showing that the necessary steps were taken and that the condition did not fail through their own fault.

Two recent rulings, not published in the Bulletin, draw the consequences of that wording:

• on 11 December 2025, the Court of Cassation overturned a court of appeal that had ordered the buyer to pay an immobilisation fee of €275,000 because she had not evidenced her refusals in time or answered the formal notice, when the promise allowed her to recover the funds on evidence of the steps taken (Cass. 3e civ., 11 December 2025, no. 24-12.981);
• on 5 February 2026, it upheld a court of appeal that had held that the production of evidence in support of the refund claim "was not subject to any time limit", and had accepted two compliant loan applications produced for the first time on appeal (Cass. 3e civ., 5 February 2026, no. 23-21.386).

In other words, with this type of clause, the buyer's silence releases the seller, who may sell to someone else, but does not earn the seller the fee. If the promise attaches a different consequence to the failure to provide evidence, it is the exact wording, and its compatibility with article L. 313-41, that must be examined.

Extensions and good faith

One last lesson from the 25 June 2026 ruling: a buyer who asks the seller to extend the deadline for the condition must act fairly. The Court of Cassation criticised the court of appeal for not examining whether the buyer had breached her duty to perform the contract in good faith (article 1104 of the Civil Code) by requesting an extension without disclosing the loan refusals already received (Cass. 3e civ., 25 June 2026, no. 24-14.137). Such conduct may justify an award of damages, on top of the question of the fee.

Recent case law at a glance

Obtaining or contesting the refund: step by step

1. Gather and analyse the documents

Everything starts with the promise: loan terms, number of applications, deadlines, formal notice clause, clause on what happens to the fee and escrow clause. It is then compared with the loan applications, the refusals and the correspondence with the notary and the seller. This analysis shows, before any step is taken, whether the position is strong.

2. Send a formal notice

The buyer sends the seller, with a copy to the notary holding the funds, a reasoned request for the refund, together with the supporting documents. The request has a financial effect: if the sum is not repaid, it bears interest at the statutory rate increased by half from the fifteenth day after the request for repayment (article L. 341-35 of the Consumer Code). A seller who fails to return the sums in breach of article L. 313-41 even faces a criminal fine of €300,000 (article L. 341-43).

3. Go to court if the funds stay blocked

Most promises provide that the escrow holder releases the funds only with the agreement of both parties or under a court decision. Without agreement, the case must therefore be brought before the Civil Court. Where the right to a refund cannot seriously be disputed, the summary proceedings judge may award an interim payment (article 835 of the Code of Civil Procedure), which speeds things up. As soon as there is a genuine debate on whether the applications complied or on how the promise should be read, the case belongs before the trial judge, as a standard piece of property litigation.

4. Watch the limitation period

The refund claim is time-barred after five years (article 2224 of the Civil Code). Time runs from the date on which the fee became refundable because the condition failed, not from the date on which the seller refused to return the funds (Cass. 3e civ., 11 July 2024, no. 22-22.058, published in the Bulletin). In that case, a claim brought a few days after the five years had expired was held inadmissible, for a fee of €99,500.

Practical reflexes for buyers and sellers

If you are the buyer

• Reread the condition precedent clause before filing your applications, and ask for exactly the maximum amount, term and rate provided.
• Comply with the number of applications and any lenders named.
• Ask each bank for a written refusal that restates the terms of the application; if the letter is vague, ask for an additional certificate.
• Send the refusals to the seller and the notary as they arrive, and answer any formal notice.
• Do not let five years pass from the failure of the condition.

If you are the seller

• Compare each loan application with the promise line by line: a rate below the maximum or too few applications may be enough for the condition to be deemed fulfilled.
• Use the formal notice mechanism provided in the promise, in writing and in the form required.
• Do not base a refusal to refund solely on the buyer's delay: depending on the clause and the buyer's profile, that argument may fail.
• Before agreeing to an extension, ask for a written update on any refusals already received.

Frequently asked questions

Can the seller keep the immobilisation fee if the loan refusal reached them after the deadline?

Not automatically. It all depends on the wording of the promise. Where it allows the beneficiary to recover the funds by showing the steps taken and that the condition did not fail through their own fault, the Court of Cassation has overturned a court of appeal that had deprived the buyer of the fee for that delay alone (Cass. 3e civ., 11 December 2025, no. 24-12.981), and then upheld a court of appeal holding that such evidence was not subject to any time limit (Cass. 3e civ., 5 February 2026, no. 23-21.386).

Is a loan refusal letter that states neither the amount, nor the term, nor the rate enough?

It is risky. The buyer must prove that the application matched the terms of the promise, and a refusal letter silent on the term and the rate does not prove it (Cass. 3e civ., 30 January 2008, no. 06-21.117). An imprecise refusal can, however, be supplemented by a detailed bank certificate, even one produced during the proceedings (Cass. 3e civ., 12 July 2018, no. 17-21.763).

Is applying for a lower rate than the one in the promise a fault?

Yes, according to the Court of Cassation. An application at a rate below the stipulated maximum does not comply, and the condition may be deemed fulfilled (Cass. 3e civ., 20 November 2013, no. 12-29.021; Cass. 3e civ., 25 June 2026, no. 24-14.137).

Must the buyer accept a loan offer for less than the amount applied for?

No. Stating a maximum amount in the promise does not oblige the buyer to accept an offer for a lower amount (Cass. 3e civ., 14 December 2022, no. 21-24.539).

How long does the buyer have to claim the refund of the immobilisation fee?

Five years, from the date on which the fee became refundable because the condition failed, not from the seller's refusal to return it (Cass. 3e civ., 11 July 2024, no. 22-22.058).

Can the notary holding the funds return them to the buyer alone?

Generally not. Most promises provide that the escrow holder releases the funds only with the agreement of both parties or under a court decision. If the parties disagree, the matter must go to court.

Legal references

• Civil Code, art. 1104 (good faith), art. 1124 (unilateral promise), art. 1304-3 (condition deemed fulfilled), art. 1304-6 (failure of the condition), art. 1353 (burden of proof), art. 2224 (five-year limitation period).
• Consumer Code, art. L. 313-1 (scope), art. L. 313-2 (exclusions), art. L. 313-40, art. L. 313-41 (condition precedent and refund), art. L. 314-26 (mandatory rules), art. L. 341-35 (increased interest), art. L. 341-43 (criminal penalty).
• Construction and Housing Code, art. R. 261-31 (refund of the deposit in an off-plan purchase).
• Code of Civil Procedure, art. 835 (interim payment).
• Cass. 3e civ., 25 June 2026, no. 24-14.137
• Cass. 3e civ., 5 February 2026, no. 23-21.386
• Cass. 3e civ., 11 December 2025, no. 24-12.981
• Cass. 3e civ., 27 November 2025, no. 24-11.704
• Cass. 3e civ., 11 July 2024, no. 22-22.058, published in the Bulletin
• Cass. 3e civ., 14 December 2022, no. 21-24.539, published in the Bulletin
• Cass. 3e civ., 12 July 2018, no. 17-21.763
• Cass. 1re civ., 14 October 2015, no. 14-24.915
• Cass. 3e civ., 24 September 2014, no. 13-18.698
• Cass. 3e civ., 4 March 2014, no. 13-11.075
• Cass. 3e civ., 12 February 2014, no. 12-27.182, Bull. 2014, III, no. 20
• Cass. 3e civ., 20 November 2013, no. 12-29.021, published in the Bulletin
• Cass. 3e civ., 27 February 2013, no. 12-13.796, published in the Bulletin
• Cass. 3e civ., 30 January 2008, no. 06-21.117, published in the Bulletin
• Cass. 3e civ., 19 May 1999, no. 97-14.529, Bull. 1999, III, no. 120