11.1. Transfer of Purchase Funds to France
Before you can complete on a French property the notaire will need to have all purchase funds in place.
This can by done either by the transfer of funds directly from your bank (UK or French) to the notaire's client bank account, or by cheque.
Particularly in the case of the latter, leave plenty of time for the cheque to be processed.
Do not leave things until the last minute, or risk finding that completion cannot take place as cleared funds are not available.
No interest is payable on the deposit, unless it is held by the notaire for at least three months.
If you are taking out a mortgage then the lender will arrange to transfer funds to the notaire.
You have no need to open a French bank account at this stage, but it might be useful for other purposes if you do so.
11.2. Completion Date
The sale contract will always contain a clause stipulating a date by which completion should take place, when the deed of sale will be signed. The contract normally provides three to four months before completion is scheduled to take place.
Some sellers and buyers assume from this clause that should the contract not be signed by this date, then the contract falls. This is not necessarily the case.
Only where the contract stated a final date for signature failing which it expired (une date limite à caractère extinctif), would this situation arise. Most contracts do not contain clauses that have this degree of finality in them.
If the date did pass without signature of the deed of sale then, depending on the circumstances, the aggrieved party could claim damages, or possibly seek enforcement of the contract in a court of law.
We can distinguish four different circumstances.
i. Delays in Search Enquiries - The date for signing the deed of sale may well be exceeded simply by delays incurred by the notaire in completing the local property search. Sometimes, it may also arise because the notaire has not acted with the alacrity that they should have done in carrying out these enquiries!
In these circumstances, if all other conditional clauses in the contract have been fulfilled, the notaire will simply set a new date for signing of the deed of sale, when completion can take place.
ii. Conditional Clauses - Sometimes they arise from delay on the part of the buyer in obtaining a mortgage, or a failure on the part of either the seller or buyer to fulfil one of the conditional clauses in the contract.
In these circumstances, the contract is likely to state that, if the condition is not met by the due date, the seller or buyer has the right to withdraw from the contract.
More often that not, particularly in the case of mortgage delays, the buyer and seller agree to an extension of the period for fulfilment of the conditional clause.
Nevertheless, you cannot rely on the goodwill of the seller (particularly if there is another buyer in the wings) so the date should be taken seriously.
iii. Inability to Sign - Where the completion date is missed, or cannot be met by one of the parties because of illness or other unforeseen circumstances, this would not ordinarily invalidate the contract. A new date can be arranged for signature of the deed of sale.
Only where the contract gave a final date for signing the contract, failing which either party could walk away from it, would the possibility arise that the contract would cease to be valid.
iv. Unwillingness to Sign - If signing of the contract does not take place on the due date because of the unwillingness of one of the parties to sign the deed of sale, this does not be itself make the contract null and void. It merely grants the injured party the right to bring an action in the courts for the other party to meet their contractual obligations.
Thus, if the seller refuses to sign the deed of sale, you need to visit the notaires office, in order that formalities can be started to secure contract compliance, which may ultimately result in you having to take legal action.
A court can order that, all contract conditions having been fulfilled, and there being no other mitigating factors, the sale is confirmed. Sometimes, where there are mitigating circumstances, a court can rule that compensation should be paid, rather than specific performance of the contract.
The important point about all of this is that sale of the property takes place at the time you sign the sale contract, not at the time you sign the deed of sale.
11.3. Condition of the Property on Completion
The seller is obliged to sell the property in no worse condition than was the case at the time the sale contract was signed. If there has been a material deterioration of the property between this date and sale completion, the buyer is entitled to demand that the property be brought back into its original condition.
If you are able to do so, visit the property the day before completion takes place to ensure that all is as it should be, particularly if the sale includes a certain number of fixtures and fittings.
At the same time you can also check that you will get vacant possession of the property following completion, for there have been cases where lodgers or members of the family have been found in occupation after completion has taken place!
11.4. Deed of Sale
When all the enquiries have been completed and funds are in place, then you will be invited to the notaire's office to sign the deed of sale, the acte authentique. Only notaires are authorised to prepare such a deed, which guarantees legal transfer of the property.
The notaire should read through the main clauses in the deed of sale, and if you cannot understand French then arrangements should be made for an interpreter to be present. If the interpreter is provided by the notaire, you may be charged for such a service.
The deed should mirror the terms of the sale and purchase agreement, but there have been cases where notaires have not fully transposed relevant clauses from one to the other or the terms have been changed.
Accordingly, you need to ensure that all relevant clauses that were contained in the sale and purchase contract have been incorporated in the deed of sale and that it remains the same, save for any changes agreed between buyer and seller.
Clauses included in the deed of sale that were not in the sale and purchase agreement, which change the terms of that agreement (conditions, obligations, rights), give you the right not to conclude the sale, although you need to be clear of your position, taking appropriate advice as necessary.
Nevertheless, surprising as it may seem, there is no requirement for the buyer and seller to be present in front of the notaire to complete the formalities.
If you are unable to get across to France for completion, you can arrange to give, say, a relative or friend already living in France the 'Power of Attorney' to sign on your behalf (signer par procuration).
Clearly, this is not without risk, but it is not unusual, for instance, for a clerk in the notaire's office to be given this role. Be wary of that practice, however, as you really need to understand what you are signing.
In order to proceed in this way, you can sign the procuration at the time you sign the sale contract. Alternatively, the notaire will later send to you a copy of the deed of sale, together with a letter for you to sign authorising use of Power of Attorney. Generally, notaires expect such an authorisation to be signed in front of a legal notary in your own country, but practice does vary.
If you will not be present for the signing then insist the draft is sent to you before it is signed.
11.5. Certificate of Purchase
When you have signed the deed of sale, you should ask the notaire for a certificate of purchase (called attestation), which you can use to gain access to public services for the property, and open a bank account etc if you have not already so.
Accordingly, the certificate can be presented to any of the public utility services to get a connection e.g. electricity, gas, phone.
At the time of signature, you should also be given a receipt for the money paid to the notaire for purchase of the property.
You should also later receive a copy of the deed of sale, together with a detailed statement of fees and costs. Some notaires are slow at this process so you need to be insistent if there is a delay.
Bizarrely, a copy of the deed is not normally sent to the seller, although you can offer to pay for a copy from the notaire or later obtain one from the French land registry.
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