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
3.3. Role of Notaires
A notaire is under a legal obligation to provide you with complete information on the nature and implications of the agreement you are signing.
Most notaires do this job extremely well, insofar as it goes, as their primary role is to ensure you have good title to the property.
Although there are formal 'search' enquiries that are made by the notaire, they only occur after signing of the sale and purchase contract, and they are by no means as extensive as the pre-contract enquiries that occur with the sale and purchase of property in the United Kingdom, between solicitors acting for seller and buyer.
Unless you ask for it notaires are not obliged to initiate a private consultation to provide you with tailored advice about your circumstances. It is not their job to hold your hand throughout the process in the manner that might be the case with a solicitor or avocat.
Their competence and conduct also sometimes falls short of the standards required of them, as we set out in our Newsletter article Complaints Against French Notaires, which we would recommend you read.
Neither is it easy to obtain means of redress against notaires if things go wrong: Notaires Reject Mediation Service.
Whilst it normal practice to use the local notaire, who acts for both parties, there is no reason why both buyer and seller should not each appoint their own notaire.
This practice is not unusual amongst the French in Paris and other major cities and one that is becoming more widespread in rural areas and smaller towns.
It is likely to prolong the legal process, and we are aware of some cases that have become unnecessarily complicated and combative due to little more than a different approach by each notaire.
However, at least you will have someone who can give you advice, away from the pressure of having a single notaire acting for both buyer and seller.
The general principle that applies is that it is the notaire of the buyer who drafts the contract and the deed of sale.
The estate agent can also often be a most useful source of advice, not only in relation to some of the legalities, but other administrative issues related to the purchase. It always pays to make use of their knowledge, although you need to remain aware they are legally contracted by the seller.
Unless you seek specific, detailed and specialist advice there is no increase in the fee for using your own notaire as the standard, official fee is shared between the two notaires.
Many notaires refuse to acknowledge the law on this point, and often claim to potential buyers and sellers that it increases costs; it does not. The law is clear: Article 10 du décret n° 78-262 du 8 mars 1978 stating:
L'intervention de plusieurs notaires dans la rédaction ou la réception d'un acte n'en augmente pas l'émolument, sauf si l'acte est rétribué en fonction du nombre d'heures passées.
Fees for conveyancing work are fixed; notaires do not work on the basis of hours worked for this activity.
We consider it desirable to use your own notaire because, where there are opposing interests, we consider it is questionable whether the transaction can be handled by a single person, whatever their formal level of independence.
The situation can be particularly unsatisfactory in relation to conditional clauses which may be included in the sale contract. There is sometimes a difficult judgement to be made as to whether a condition set out in the contract has been fulfilled, and a single notaire acting for both parties may well be in an difficult position to make such a judgement.
Nevertheless, many notaires seem unwilling to act on a joint basis with another notaire, a problem we reported on in our article Notaires and Fee Sharing on Property Transactions.
If you do decide to have one notaire act for seller and buyer, you should note that the prerogative of choice lies with the purchaser.
Legally, the notaire does not need to know the property, or even operate within the locality, although it is obviously desirable that they have some local knowledge.
If separate notaires are used there are prescribed procedures that set out which notaire is responsible for drawing up the legal documentation and processing the sale. These procedures vary by department/region, but it is normally the notaire of the seller who leads. The buyers notaire will have an oversight on their work.
The notaire is under a legal obligation to make sure that you understand what you are signing, but it is not always clear that this is a rule that is fully respected. If you are lucky, the notaire will speak English. If not, they should provide an interpreter for you. It is not unusual for this to be the estate agent, many of whom are bilingual. But, of course, the agent is acting for the seller, so some caution is needed.
We also hear of tales of notaires trying to impose a substantial charge for a translator. You should not accept such a charge. We say more at Notaires and Translation Charges.
Do not pretend you understand what is being said if you do not.
If you choose to use the same notaire, then ask that you are sent the draft contract to go over in your own time, so you can be more confident of what you are signing.
Even if language is not the criteria, we do recommend you visit the offices of the sellers notaire for a preliminary meeting prior to contract, as they are likely to be familiar with the property (and the seller!) and may have something useful to say to you, e.g. on the purchase price!
If you can, try asking local foreign owners of their view of the local notaire, or of other notaires who may work in the area.
We appreciate the logistical difficulties for a foreign buyer of selecting their own notaire, but you do not need to have agreed a sale to ask for a meeting with one. Most notaires will be only too happy to see you for an introductory meeting on general issues, with the prospect that you might later come back to them once you have found the property you want to buy.
If you want to find out who are the notaires in the area where you propose to purchase your property then you will find the national directory by visiting Notaires.
Whichever route you take, whether joint or own notaire, take such action as you consider necessary to ensure you are confident about the competence and integrity of the notaire(s) who will be acting in the transaction.
Next: Use of Legal Advisors
Back: Signing the Contract
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