There is no mystique in buying property in France. The French conveyancing system and the standard of legal services provided is, on the whole, excellent.
With some sadness I consider it better than that provided in England. This may be because only one 10th of the number of transactions that take place in England each year take place in France. People tend to buy, sell and mortgage property in England as they do second-hand cars or shares. The intervention of professionals here is seen as a burdensome and unnecessary formality. Such is not the case in France.
This is due to the role of the notary, a profession whose origins go back to the Roman Empire. The role of the notary survived the Dark Ages, and flowered again at the Renaissance. It survived the French Revolution, and is now a powerful profession which generates new legal concepts. One good example is the structure of "co-proprietes" under which have been developed the co-ownership principles in the complexes of apartments and chalets built in the Alps and on the French Coast.
In France, all transfers of real property, that is of land, houses and apartments, take their validity from the "authentic" deed setting out the transfer which is signed before a notary by the vendor and purchaser. The notary's essential role is to certify the identity of the parties to the deed and the description of the French property. His duty is to advise the parties of the consequences and risks of the transaction.
Any failure to carry out these professional duties may, if loss is caused as a result, give rise to compensation against which he has professional indemnity insurance. He must satisfy himself and investigate all rights relating to the property. In addition, he investigates the good title of the vendor and carries out searches with the local planning authority and the land registry, which will reveal any entries or charges that affect the property - and he must do all this despite anything said to him by the parties to the transaction.
The following elements are essential to make up the "dossier of sale":
- a willing vendor who has good title
- a willing purchaser who, either from his own funds or with the aid of a mortgage, can pay the purchase price and the costs relating to the purchase
- an identified property
- agreement between the parties as to the price
It may seem trite to set out the above, but it is surprising how often one or other of them is not clear, despite the parties' apparent wish to proceed. For example, in a recent transaction, the vendor only revealed after the contract was signed, that his son, who was only 17 years old, was a joint owner. This involved the father in a costly application to the High Court in England to obtain approval of the sale.
As to willing purchasers, I am often consulted by retired couples who are reliant upon the proceeds of sale of their house in England to buy the house they want in France, and who are over optimistic as to the ease with which they will be able to sell. Because they are retired, the chances of being granted a mortgage are remote as they have no salary from which to service the repayments. They are willing buyers but not able ones.
The identity of the property is often not precise. A brief visit to the property with an estate agent may fail to disclose rights of way, or the whereabouts of land which may not be adjacent to the house, but could be half a mile away.
When talking about the price, confusion may often arise when "all inclusive" figures are mentioned. It is much better to set out and itemise:
- the price of the property
- the notarial fees and Stamp Duty
- any commission due to an estate agent
These elements are the constituent parts of the contract to which must be annexed experts' reports on asbestos, lead, termites, energy efficiency and risks of natural disaster.
The contract, once signed by all the parties, must be served on the purchaser by registered post. The purchaser then has seven days (the cooling off period) to withdraw from the commitment without reason or penalty. If a deposit has been paid, it will be refunded after 21 days.
Then begins a long delay, the reason for which the English purchaser finds hard to understand. Completion generally takes place only some two months after the expiry of the 'cooling off' period because:
- Notice must be given to any third party who may have a right of pre-emption
- The local search has to be returned clear of all charges which could devalue the property or prevent it being put to the use the purchaser intends
- The Land Registry search must not reveal any existing mortgage on the property, the amount to discharge which exceeds the purchase price.
Finally, when all these elements are on the notary's file, and the vendor has moved out, (leaving it is hoped the fitted kitchen as promised) the purchase price can be handed over, and the deed signed in front of the notary.
The purchaser has then become the owner.
The author, Graham Platt, is a senior partner at the International Law Partnership.
Some information contained within this article may have changed since it was first published. HomesOverseas strongly advises you to seek current legal and financial advice from a qualified professional.