Knowing your notaire
Written by Professor Robert Anthony and Fanny Meignier, Anthony & Cie
French Property News, November 2007
Robert Anthony and Fanny Meignier look at the important role played by the notaire when you buy a French property.
Conveyancing in France is a far cry from the process in the UK. This article focuses on the role of the notaire– it’s important to understand that a French notaire does not have the same powers and duties as an English notaire.
Before exchange of contracts
Once you have found your property the first thing to do is to appoint a notaire to do the following.
Notaires represents the French central and local government in all property transactions. Their main role is to be a fair, regulated body acting for both the seller and the buyer. They deal with issues such as public law (i.e. rules which govern the town and the country together with tax issues) and private law (i.e. real estate regulations).
As the notaire acts for both seller and buyer, it is not unusual for one notaire to represent both parties at the same time, although you do, of course, have the option of choosing your own notaire. In this case, the fees remain the same (the two notaries split the proceeds).
When the transaction is not complicated, the estate agent often drafts a template of the sales contract, known as the compromis de vente. The notaire checks the document to ensure all the legal regulations have been respected. If you didn’t use an estate agent, or if the transaction is more complicated, the notaire will draft the contract himself. Therefore, it is important to choose a notaire with whom you feel comfortable, as you need to contact them to discuss your needs and requirements.
A Compromis de vente is a legally binding document in which all parties agree the terms of the transaction. It is therefore very important to read it carefully and to seek advice from a legal body if you are not sure of some points.
It is important to realise that the notion ‘subject to contract’ does not exist in France. This means that legal and other searches or enquiries are not made before signing a legally binding sales contract. These are made after signing the sales contract and before completion when the Acte Authentique is signed in front of the notaire.
Both buyers and sellers usually sign the same sales contract, unlike UK contract exchanges.
Notaires don’t ask the seller to fill in long enquiry forms for the conveyancing, unlike in the UK.
The main point to check is whether there are any suspensive clauses in the sales contract, in particular concerning your mortgage being granted. If such a clause has been inserted, this means that if your loan request has been rejected by your bank, through no fault of your own, you are not bound by the sale and you will get your deposit back. Be careful though, you cannot use this clause to try to get out of the contract, if, for example, you simply change your mind.
At this stage of the compromis de vente you should raise other issues that you would like to be included as a suspensive clause, for example, those linked to planning permission.
Please note that the compromis must contain all details of the sale as you cannot add anything to the contract after signing it.
Between exchange and completion
The notaire carries out the searches with the local authorities and checks the title to the property.
Under French law, you have a seven-day cooling-off period after signing the compromis to retract from your purchase. This is a statutory right available for all French contracts and you can retract without giving any reason. If you do not respect the complex formalities and time limit, you will lose this right to withdraw.
Once the cooling-off period has passed, the deposit is paid. After that, if you simply change your mind and wish to pull out of the purchase, you’ll lose your deposit.
The searches undertaken by the notaire usually take approximately three months from the exchange date.
When the transaction is ready for completion, the notaire will provide a statement setting out the balance due by you. This will include the notaire fees, estate agents and managing agents (if any) fees, stamp duties and other taxes (i.e. land tax).
Both parties meet at the notaire’s office to sign the acte authentique completion contract.
The notaire will read out the contents of the contract, and will ask for your confirmation regarding the main points, such as purchase price, your understanding of rights of way etc. The notaire will provide you with the search documents.
Non-French speakers may request the assistance of a sworn translator during this meeting at their own cost. We highly recommend this due to the document’s complexity.
This meeting can be long, depending on the size of the contract and the complexity of the transaction, so it’s advisable to book at least three to four hours. The estate agents (if any) are usually present at this meeting. If you are unable to attend you can arrange for a power of attorney to be drafted, giving authority to someone else to sign the documents on your behalf.
Once you have signed the completion contract, you will receive the keys.
Congratulations- you own a French property!
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