Notary Notes

Question

Is it necessary to have both a French Notaire as well as your own solicitor when dealing with a French property purchase? Perhaps you could run through the roles that both parties carry out and the fees that both charge.

Answer

This is a familiar question and one which clients often put to us when initially contacting us. By the end of their purchase, clients invariably tell us they couldn’t have managed without us and that our guidance and advice was invaluable.

That said, the simple answer to the reader’s question is that no, it is not necessary to have both a French notary and a UK based solicitor. However you cannot dispense with the French notary. Notaries in France have a monopoly on the transfer and registration of ownership of land and buildings and it is therefore not possible to complete a purchase without using a notary.

As many readers will know already, the notary who deals with the sale and purchase of a residential property is usually appointed by the seller. The buyer has the choice of either using the same notary or appointing a second one; there is no extra cost for bringing in a second notary as the two notaries share the fee which is based on the sale price.

So then the choice remains as to whether or not to appoint a UK based solicitor who is also a French law specialist. The best way in which to explain why a UK based specialist should be engaged is to set out a sample of the tasks which we carry out when involved in a typical purchase on behalf of English speaking clients:

• We liaise between you and the estate agent so that when you make an offer for a property you know exactly what you are offering and what the main terms of the purchase are.
• We work with the agent to agree the form of the contract (as it is often the agent who produces the first contract)
• We explain the legal implications and effect of the clauses of the contract to you before you sign it; (this is not the same as providing you with a translation of the contract which is what many English speaking agents will offer you)
• We raise enquiries with the local Town Hall to check if there are any major developments in the pipeline for the commune which could have an adverse effect on the property you are buying
• We also check whether there are any planning applications in the pipeline for any neighbouring property of which you are not aware and which may affect your decision to proceed
• We discuss French succession law and estate planning with you before you commit to the purchase. Inheritance laws in France are very different to the UK and it is extremely important that your purchase is structured in such a way as to ensure that in the event of the death of one joint owner the survivor and/or the deceased’s children are protected
• We check the final purchase deed before you sign it and explain its contents to you so there are no nasty surprises when you attend the completion meeting at the notary’s office

All of the above tasks are typically carried out by a UK solicitor who specialises in French law. Very often, the notary will not become involved in the transaction until the very end and so the level of advice which a UK based client will receive from him is likely to be fairly limited. As mentioned above, very often the initial contract is prepared by the estate agent and so the notary is not involved at that crucial stage. Moreover, the pre completion searches and enquiries are routinely carried out by a clerk at the notary’s office. The notary will then check the purchase deed drafted by his clerk and will conduct the completion meeting and witness the signatures of the parties.

In our experience, UK based clients who do not use a UK based solicitor, struggle to obtain advice and information from the notary as the matter progresses either because of communication difficulties or simply because they don’t understand the French conveyancing process.

In terms of fees, for the purchase of an off plan property or a property which is less than 5 years old, reduced notary’s fees and tax of approximately 2.5% of the purchase price are payable by the buyer; for the purchase of a property which is more than 5 years old, notary’s fees and stamp duty of between 6-8% are payable by the buyer.

A UK solicitor will base his fees on the level of advice required. Often a fixed fee will be agreed for the transaction. The fixed fee may or may not include succession advice and so if shopping around – buyers should always make sure they are comparing like for like. Finally, remember that generally you get what you pay for. If you are offered a low fixed fee, it is likely that the level of client care and advice will be limited. It is worth paying a bit extra to get expert advice and excellent support.

This article first appeared in Issue 79 of French Magazine – MAR/APRIL 2010