When you buy or sell any property in France you must do this through a Notaire. They are legally “trained” representatives of the government and their responsibilities are to ensure that things are legally correct.
They act neither for buyer nor seller, although the buyer pays their fees which are from 5 to 7 percent of the purchase price – these fees include taxes on the purchase of the property.
The Notaire is impartial and does not give advice or look after the interests of anyone but themselves. To be sure of getting the correct advice for the correct regime for a purchase, loans or surveys it is essential you get independent, qualified and fully insured professional advice.
Here is a typical letter from a reader with doubts about the efficiency of the Notaire’s actions and whether they will risk the purchase being lost.
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I am due to sign for a property in France, but the vendor’s notaire has “forgotten” to obtain both the DIA (droit preemption d’urbanisme) and the diagnostic report from the geometre.
Both are obligatory.
This will send us beyond the latest date for the acte de vente in the compromis, by several days at least. Is compensation an option, how do we obtain this, and who do we go to?
Any advice appreciated. Many Thanks,
Kate
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Hello Kate
Notaire are notorious for getting things wrong, delays and general incompetence – their main job is to make sure that the taxes due and their fees are paid, they are not acting either for the buyer or for the seller, but for the government. Many of their services are advisory and free, they are not solicitors or legal lawyers and, although theoretically they could be sued for incompetence, I doubt this every happens.
I assume you have a compromis for buying the property, signed by both you and the seller – this will set out any specific needs on your part – conditions and a date for the acte.
If there are missing documents and the date for paying and taking possession of the property are delayed, then, in my own experience, this will not cause a problem or lose you the purchase. It may give you grounds to “opt-out” of the purchase if you wish and demand your deposit back.
My advice is to talk to the Notaire, or to any other Notaire and get them to chat together and give you an answer – this will not cost you anything, it is part of their service as legally trained, government “officials”.
Please let me know if this is helpful or how things turn out for you
Best wishes
Tony
A good answer Tony, but notaires are fully qualified lawyers (solicitors). In France we have three sorts of legal animal.
1. Jurists – people who have a law degree and can give advice but are not qualified in any way to practice.
2. Notaires who have a law degree and are fully qualified lawyers/solicitors.
3. Avocats who have a law degree and are fully qualified court room lawyers/barristers.
By French law a notaire handling a property sale must be impartial and act in the interests of both the seller and the buyer. Quite a few of our local notaires (Herault insist on the presence of an interpreter when the buyer or seller sdpeaks little or no French to make sure that the acte and all its implications are fully understood by all parties. The interpreter has to sign the act as well as the buyer the seller and the notaire.
The notaire can give you advice on the best way of buying a property, sci, tontine regime matrimoniale, inheritance issues, capital gains etc etc.
The fees a notaire can charge on the sale of a property are fixed by the French state and represent a very small part of the total fees payable. Notaires, like lawyers in most countries, are legally obliged to have very expensive and full professional insurance cover.
Fees usually run from 10% on very small prices down to 6% on very high prices. If both the buyer and the seller elect to use their own notaires, these state fixed fees are split between the two notaires, in general using two notaires is not worthwhile as it slows down the procedure with no benefit to either buyer or seller.
The bulk of the payment goes in land registry fees, split between the commune, the department, the region and the state.
In the country most compromis run beyond the given date for signing due to delays in getting back land registry information. If this worries you, why not speak to the seller or to the agent invlved in the sale and ask for a written undertaking to change the last date for signing?
Most notaires will not have a compromis signed unless the seller has already had the the diagnostic tests done ( asbestos, lead, termites, in some areas some gases, + insulation and soon electric system). However often immobiliers/real estate agents will have a compromis signed regardless. It is the responsibility of the seller to organise the tests and obtain these certificates.
In the UK the solicitor you pay acts for you, in France the Notaire is impartial, they will give an answer, but only if you ask the right question, they never seem to volunteer information on things like marriage regime etc,
The Notaire is impartial but has to check there are no restrictions which could hinder or hurt the buyers use and enjoyment of a property etc
There are bad and good notaires. People need a good estate agent or a bit of sense themselves to ask the right questions they also need a properly composed compromis, drawn up to protect their interests,
I have known of unscrupulous estate agents selling agricultural buildings where there was no hope of occupation by any one other than a registered agricultural worker, with a compromis properly describing the nature of the property but no explanation that they could not live in the property given by the immobilier.
It is very important that any buyer has the correct and relevant suspensive conditions in the compromis, permission for roof terrace, permission for pool etc.
Unfortunately, the French Notaire is not always regarded in high esteem within France and there have regularly been Judicial trials involving notaires within the French courts. One can easily research this just from a casual search of the internet and press articles. Particularly involving property vente-saisie tribunal procedures. As a foreigner, you can be particularly susceptible to any form of abuse or corruption and if that occurs, you will face a very lengthy and very costly (starting at around 30,000-40,000 euros) legal battle just to establish your rights, even when you are an innocent victim of something like a misale or title infringement, ancient debt lien, etc., You will not be able to access legal aid and will HAVE to take on a specialist, English language International Avocat, by law, even if you are fluent in French (which will be double typical avocat fees while your opponents, as french nationals, will have access to unlimited legal aid from the state. I myself went through this process and can confirm that property purchase in France is a risk. If you are caught within the legal process of a rogue notaire, you can come away losing everything within only a minimal compensation of few thousand euros and refund of notaires fees. The French legal system can be very harsh, very rigid, very uncompassionate to foreigners, in particular. Thankfully, there is an ex-notaire turned rights-champion within France who maintains a website and help group, he is helping to bring into the open some of the worst abuses, corruption and negligence of this ‘profession’.
So, do not take for granted that a Notaire is working to keep things fair and even in the sale of a property/land and maintaing all required paperwork to complete an impartial sale. There have been enough legal cases to show that this can be the opposite. And from there, you face a state-protected, monopoly-status organisation on who will also (as members of the state legal profession) likely be playing Golf or Boules at the weekend with the same Tribunal Judges determining your case.
Anyway, not to be a scare munger BUT .. you should always ask to see the Notaires credentials and that they should volunteer information on previous negligence or civil law convictions against their name or firm’s name. Particularly within the Provence and CdA regions. Notaires can continue to practice even if they have a string of negligence and civil law suits against them. If you do not want to ask directly, you can contact the regional office for the Associe de Notaires de France who will reply to English or French Language requests and can be contacted through the Notaires de France website, telephone or post. You should always ask an independent lawyer, who has French avocat status, to check over the compromis de vente, before you attend the signing meeting on the day to transfer deed and exchange fees. Despite the propaganda placed on the Notaires de France website, claiming that members have professional indeminity insurance in the case of a fraud or negligence matter involving the Notaire, this is not the case in reality. You will be dealing with a private insurance firm (unconnected to the Notaire Association) whose number one objective will be to employ large teams of lawyers against you to minimise the compensation they have to settle, if anything at all. The process is ruthless and brutal, a tribunal will happily strip you of all your pocessions, equity, etc., with a state certified payoff of currently around 7500 euros and refund of Notaire fees, even if you purchased a 1M euros chateau, and sleep perfectly well at night.
Do not take things for granted, check into the Notaire’s background, get an independent Avocat to review the Sales contract, insist the Notaire inserts a clause for full and unlimited compensation to be applied, on behalf of him, his firm and notaire Association, in the event of negligence or fraud matters latter proven on his behalf. There is not a standard Compromis de Vente format and he can draft or emit items as he chooses. This is how many foreigners are caught in the cross hairs of a system so open to abuse and ruthless by design.