Notaires in France have a privileged status, but their competence and conduct can sometimes fall short of the standards required for such an important role.
The notarial profession in France has historically been one held in great high esteem, the epitome of probity and good counsel.
They have the security and status of senior public servants, as part of which they have a monopoly of all conveyancing transactions and all successions.
The legal documents they produce (actes authentiques) are public instruments, which gives them greater legal certainty than privately executed contracts.
However, even though they may ostensibly be public servants, notaires earn their income from the fees they charge for their services.
In most cases the fees are regulated by the government, which means not only that you cannot negotiate with a notaire, but it also prevents competition between them for business.
Some fees are very reasonable, such as those in connection with preparation of a will and a change of marriage contract.
Nevertheless, with many charges based on a percentage of the transaction value, the fees can quickly mount up, such as those in connection making a gift or those in relation to successions.
Given that the level of remuneration for some work is meagre, there is obviously the temptation to give less time to minor operations and to focus instead on the most lucrative instructions.
Not only are many of the fees scales high, but the rules that are used to determine which fee scale applies, and the algorithms then used to work them out, are probably only fully understood by the notaires themselves.
That can sometimes mean clients paying over the odds for unnecessary procedures, such as those in connection with marriage contracts. There seems to be a huge divergence in the way notaires calculate the fee payable for such contracts and many international couples have substantially overpaid for the process.
In our experience, not enough notaires offer pro-active advice on the different ownership structures and related options for property, particularly for multiple buyers, those living in free union, or those with children from a previous marriage, when it is important to consider the inheritance and tax implications of the purchase.
Notaires are also permitted to sell real estate, which they promote very heavily, and thereby earn both the commission and conveyancing fees associated with such sales.
Numerous legal cases on which we have reported in our Newsletter remind us that notaires are not infallible, and that sometimes their advice may not always be in the best interests of their client.
One of the most spectacular of these cases, and one that is still ongoing, is 'l’affaire Appolonia' in which several notaires based in the Bouches-du-Rhône have been charged with acting in a complicit manner with a firm of financial and property consultants in the mis-selling of newly constructed rental developments in the region.
Other recent cases on which we have reported are those concerning a notaire who:
These are only a handful of the many similar cases that are heard in the courts each year, or which are referred to the professional body of notaires for adjudication.
There have also been cases of notaires having acquired real estate or money from clients for themselves or third parties, where the client was clearly incapable of properly understanding what was taking place.
In addition, what these reported cases do not show are the occasions when clients have suffered errors that have not resulted in a claim, or when poor advice has been given which may not have been challenged, or when there have been unreasonable delays in completing a transaction, providing information or a refund of monies.
Over the years we have received hundreds of mails from readers that can testify to many cases of maladministration that never reach the courts.
Complaints also abound about delays incurred in processing a case and poor communication with a client. This is particularly noticeable in inheritance cases and in property sale and purchase transactions.
Many critics also consider there is an excessive use of standard form of contracts and deeds to process property transactions, when the nuances of the transaction under consideration requires more customised drafting.
As 'public officials' notaires can, and generally do, act for both parties, but this is often to the disadvantage of international buyers, for notaires may well be closer to one of the parties to a transaction than is appropriate for complete transparency and neutrality.
Although there is a disciplinary procedure in place, it is one that is auto-regulated, requiring that the matter is reported to the local professional body, the Chambre de Notaires for investigation. Such procedures lack a degree of independence and transparency about them.
Since 2016, it has also been possible to commence a mediation procedure to resolve a dispute with a notaire. This is the result of European legislation that requires all Member States to grant consumers the right of access to an independent mediator in their disputes with professionals. The process is free of charge and can be launched at Mediateur-notariat. As might be expected there are rules that apply over the use of this procedure, including the need, in the first instance, for you to have tried to resolve the dispute with the notaire.
However, if a notaire refuses to participate in the process, there is nothing the mediator can do about it. Around half of the referrals to the mediator go no further as the notaire refuses to cooperate!
It is also possible to bring a legal action in the courts, where notaires regularly get called to account for fraudulent acts or for professional negligence. However, there are inevitably substantial costs involved, and with the legal system in France in a state of decomposition the case can take years to resolve.
A statute of limitations also applies (delais de prescription), meaning that after 5 years the right to bring a legal action against a notaire expires. This period starts from the day on which the applicant "knew or should have known the facts enabling him or her to exercise it." Accordingly, a action may be brought more than 5 years after the signing of the deed if the limitation period does not begin until the plaintiff becomes aware of the damage suffered. Indeed, case law considers that the limitation period in contractual liability begins to run from the date on which the harmful facts were revealed to the victim (Cass. 1st civ. 1 July 2015, no. 14-16.555).
In matters relating to tort, the limitation period for an action for liability only runs from the date when the damage occurs or from the date when it is revealed to the victim if the victim establishes that he had not previously been aware of it (Cass. 1st civ. 26 January 2012, no. 10-21.529).
However, deferring the starting point "may not have the effect of extending the extinctive prescription period beyond twenty years from the day on which the right arose" (Article 2232 of the Civil Code).
Even if it is possible to bring a successful legal action, although the notaires have professional liability insurance (PI), it cannot be automatically assumed that their insurer will pay out where negligence occurs. They will take all such steps as are necessary not to pay, requiring that a plaintiff must then claim directly off the notaire.
It does of course need to be said that the vast majority of notaires no doubt do an excellent job for their clients, and the overwhelming majority of transactions proceed without a hitch, but there are enough cases of improper conduct or incompetence that it is unwise to put blind faith in the process.
Moreover, the difficulty for those seeking a notaire (particularly foreign nationals), is that there is no easy way to sort the good from the bad - at least, not until it is too late.
As always, prevention is far better than cure, and so our general advice in a property transaction would be to consider appointing your own notaire, rather than have a single notaire act for both sides. It will not cost more as the fee is shared.
Your choice of notaire need not be a local incumbent; sometimes it makes sense to use a local notaire for the knowledge they hold, particularly in relation to real estate matters, but if you are uneasy about their competence or impartiality then drive to the next town for a consultation with another one.
Indeed, where the transaction is a complicated one, involving multiple buyers or conditional clauses in the contract, or you do not have a familiarity with the French language, or you have children by a previous marriage, you might well be advised to appoint a specialist solicitor from your home country to advise and represent you, alongside the notaire.
The use of a home-based solicitor is particularly useful if inheritance planning issues are being considered as part of the purchase process due to the complexities of international law in such matters.
Indeed, some notaires are reluctant to act in international succession cases, precisely because they are rarely straightforward and can be very time-consuming.
Whichever route you take in using a notaire, it pays to do your own homework, and to not be intimidated out of deference to the frequently regalian nature of the whole process.