3. Sale and Purchase Contract for Property in France
- Types of Sale & Purchase Contract
- Preparation and Signing the Contract
- Role of French Notaires
- Use of Legal Advisors
- Pre-Contract Enquiries
3.2. Preparation and Signing of the Contract
It is possible to prepare and sign the sale and purchase contract either through an estate agent in France or a French notaire.
Estate agents with a carte professionelle (which includes the words de transactions sur immeubles et fonds de commerce) are authorised to act as an intermediary and may provide pre-printed sale and purchase contracts for you to sign.
No fee is (normally) payable to the estate agent for undertaking this part of the process and it is not unusual for sale agreements to be signed in this manner. Some estate agents undertake this process in a highly professional and transparent manner.
Nevertheless, we have a number of reservations about using this approach:
- As the estate agent has been instructed by the seller they lack the independence that seems necessary in the contract process;
- You may wish to include specific conditions in the sale agreement that may not be included on the pre-printed forms normally used by agents. Although these standard contracts can be varied, such changes will need careful legal drafting;
- There is the risk that the process may be too rushed and you may not have had the time to reflect, or the opportunity to discuss and review the finer points of the proposed purchase, such as the existence of easements;
- It seems far better to avoid split responsibility between the agent and the notaire for preparation of the sale and purchase contract and the deed of sale. It is important the two documents are seamless.
- Some agents provide a translated copy of these agreements, but you can never guarantee that the translation is correct, and only the French version will be accepted in a court of law.
Perhaps most importantly, the sale and purchase agreement is the basis on which you will buy the property so what it contains, or does not contain, is of huge consequence.
Accordingly, if you propose to sign the sale and purchase contract through the vendors estate agent it is advisable to take legal advice before you do so.
In general, we recommend you sign the sale and purchase agreement through a notaire. If the seller (or agent) insists on not using a notaire you should immediately be suspicious.
The notaire is an independent, publicly appointed official who has a monopoly of property conveyancing matters. As we make clear in the next section on the Role of Notaires, they also have their shortcomings, but it seems on all counts more preferable to use them for the whole process, rather than divide it between the agent and the notaire.
Moreover, a notaire is not permitted to charge for the preparation of a sale and purchase contract (compromis de vente), as has been confirmed in a government parliamentary statement:
'La garde des sceaux, ministre de la justice a fait connaître à l'honorable parlementaire que l'avant-contrat de vente n'est plus rémunéré lorsqu'il est réalisé par un notaire. En effet, les notaires établissent l'acte authentique de vente. De ce fait, il est apparu conforme à l'intérêt des parties à l'acte de vente de ne rémunérer que celui-ci. La situation est différente lorsque l'acte est rédigé par les agents immobiliers qui, ne pouvant établir l'acte de vente, peuvent alors facturer l'avant-contrat.'
Occasionally, a charge may be imposed by the notaire, but would only be payable in the event that the sale does not proceed to completion. Thus, if completion is subject to the buyer obtaining a mortgage, but the mortgage application is refused, then the notaire may seek payment for expenses incurred. Any charge is the responsibility of the buyer.
However, they are required to advise the buyer of this prospect prior to, or at the time of, preparation of the contract, and to also advise how much will be the charge. It should be no more than a few hundred euros, which may only to cover actual disbursements, not fees. More often than not the notaire will ask for prior payment for disbursements.
If the notaire also introduced you as buyer to the property in their role as an estate agent, then they are able to charge a commission, payable at completion.
NB: Where the duration of validity of the sale contract is at least 18 months it is obligatory to sign the sale and purchase agreement through the notaire.
Next: Role of Notaires
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