French and English Property Purchasing

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When we are advising clients on their purchase of a French property, we often make reference to the conveyancing process for buying and selling houses in England.

Most people will have some experience of English conveyancing – including how stressful it can be – and so comparing and contrasting can be a good way of explaining the procedure in France. In this article we will look at a few points buyers of a French property will encounter, comparing them with what would happen in England. It is prudent to note here that the process of buying a house in Ireland or Scotland may be different again, although we cannot comment on this; for simplicity, references in this article to England will also incorporate references to Wales.

One of the first points that buyers will notice is that there is probably only going to be one notaire involved in the transaction. Of course English law conflict rules mean that one solicitor cannot represent both parties, so each party must have their own legal representation. The role of the notaire, though, is not the same as that of a solicitor: a notaire is primarily required to ensure that the property is transferred correctly, and that all duties are paid on the transfer. The solicitor’s role on a conveyancing transaction will go further than that, to make a deeper assessment of the property to be bought; an extra step a specialist solicitor advising on a French purchase in addition to the notaire should be able to fulfil as well.
Buyers in France are occasionally surprised to see that the initial contract is not always drafted by the notaire, such that the lawyer overseeing the purchase would not have any involvement in a transaction until the contract is completely and fully binding on both parties. Indeed, quite often it is the estate agent who will draft a contract; there is nothing wrong with this – many agents are suitably equipped to carry out this process. However it does mean that without relying on specialist solicitors in England to advise on the process, a buyer will not have been able to receive any legal advice in advance of the contract becoming binding.
One point of similarity between the two procedures is the fact that each is finalised over two stages: signature of an initial contract (in France generally known as the ‘compromis de vente’ or ‘promesse de vente’), and then a final Transfer deed (in France known as the ‘Acte Authentique de Vente’, and in England lyrically known as a ‘TR1’). In both cases the initial contract sets out the main criteria of the transaction, and binds the parties into the deal, with the final document actually transferring ownership.
There are, though, some differences here. Not least, the final transfer deed in France actually becomes the registered deed, the original of which is retained at the notaire’s office. In England, the actual transfer deed, once registered, bears little or no value: the real evidence of title is now retained by the English Land Registry, with paper copies being available for information. In France, the registered paper document is the ultimate proof of title; since it is retained at the notaire’s office, this is perhaps indicative of one of the important but often unappreciated roles of the notaire in France: notaires bear responsibility for ensuring the safe record of title to land in France.
Many readers will remember that several years ago in England there was much discussion about whether to impose on sellers the requirement to provide a ‘Home Information Pack’ This ‘HIPS report’ was supposed to streamline the Conveyancing process, with all relevant information about a property – including a full survey – being provided in advance and at the seller’s expense. It may appear to have been a good idea, yet there was great pressure against it and eventually only the well-known rainbow image of the energy efficiency report remained.
Now, in England and in France, this energy efficiency report is compulsory, and must be provided by the seller when marketing a property. However in France a full set of further inspection reports are also obligatory – the specific reports required in each case depending upon the type, location and age of the property. These reports do provide a good deal of information to a prospective buyer.
Nevertheless, just as in England, an independent structural survey will offer a buyer a much more detailed analysis of the building and its overall integrity. If commissioned before the compromis de vente is signed it may also provide an excellent tool for the negotiation process.
Another large difference between the two systems is the procedure on the date of completion. In England, the sale deed will be signed in advance by the parties, yet not dated. The seller’s solicitor will hold this document pending completion and on receipt of purchase funds from the buyer’s solicitor will date the deed, thus rendering it completed (subject to registration). In France the parties are required to attend a completion meeting at the office of the notaire. At that meeting, the notaire would read through the sale deed before obtaining the signatures of the parties.
The completion meeting may well be an enjoyable and positive event, and it is certainly worth attending this meeting wherever possible. It certainly offers the buyer the opportunity to visit the property once more before completion, to ensure that everything is in order with the property.
However it is not always possible to be present, and if any of the parties cannot attend they can be represented by completing a power of attorney to authorise someone else to sign the deed on their behalf. Signing a power of attorney in this way is generally unknown in England, given the fact that a signed but undated copy of the sale deed is held by the solicitors until the matter is completed (it can happen in certain circumstances, although they are quite rare).
There is, after all, no completion meeting in England, as we have seen. Yet such a meeting does tend to give a certain feeling of real conclusion to the whole process, with the parties knowing that they are part of the legal process. How much more enjoyable is that, rather than waiting at an estate agent’s office waiting for the solicitors to ring to say that the agent can release the keys to a house: many readers will surely have memories of that waiting when buying a house in England.
The two systems are very different, although at their core they have the same intention – the safe and valid transfer of title as between the parties, such that the buyers will enjoy free and unfettered ownership. There is clearly no ‘perfect’ system for this process of land transfer, yet the ability to understand the entire process – even down to minutiae such as when you need to have insurance cover in place – is vital. Being able to compare and contrast the two procedures should generally assist in that understanding.

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