The Notaire and his role in France
With about 5,000 offices, 7,500 notaires and 40,000 assistants, the notarial profession has representation all over France and has an effective monopoly. The Notaire is the public official responsible for receiving all the "actes" and contracts to which the parties wish to confer the seal of authenticity, to assure their date, to hold them in trust and to deliver authentic copies of them.
The Notaire is under the authority of the Minister of Justice (Ministère de la Justice) and is appointed by decree. The Notaire's office (Etude) depends geographically on the area in which he lives. Contrast this with the appointment of an English notary which is made by the faculty office of the Archbishop of Canterbury.
The deeds which a notaire draws up, like judicial decisions, have a probative and binding force. He advises and informs on questions relating to private, family, business, fiscal, company and administrative law. In other words, hedraws up and receives your consent to the contracts which concern your affairs.
For instance, in the matter of private law, he prepares acts relating to marriage settlements between husband and wife; settlements such as donations entre époux (gifts between spouses),shareouts, wills, inheritance etc.
He has the monopoly in matters relating to purchases, sales, exchanges, co-ownerships, land plots, leases, mortgages etc. He can form companies, organise the selling of businesses and prepare commercial leases, rural leases etc.
The Notaire helps in matters of property valuation and also in seeking an amicable solution to a disagreement between private individuals. He is rather grandly referred to as the impartial arbitrator of contracts and the adviser of people, firms and organisations. He guarantees the morality and the validity of contracts. He is directly responsible for the deeds he receives and for the sums of moneys with which he is entrusted. The Chambre des Notaires guarantees his services and is the only profession in France to do so.
On request he must inform you of his professional fees which are generally fixed by decree. He must provide you with an account statement and the cost ofthe deeds you have given him to draw up. He has to let you have a copy of the deeds which affect you.
You have to provide him with the necessary information, proof and documents to enable him to draw up a deed. Upon completion of the transaction he has an obligation to collect all taxes imposed and to pay them over to the relevant authorities. The Notaire is subject to professional secrecy in absolute terms and no person can release him from it. He has an obligation to inform parties of the extent of the responsibilities which they are undertaking and in choosing the legal form which is best suited in order to eliminate any subsequent legal or fiscal problems.
The role of the Notaire in the buying process
Most people will come across a Notaire when they purchase a property. He has an important role at every stage of the purchase process; his intervention is not compulsory for the first stage but it is for the later stages as he has a monopoly over the preparation and signing and execution of the final deed (acte authentique).
When looking for a house
The Notaire is an excellent source of information when looking for a property. He was originally the only person who had the responsibility for selling properties. Most of the properties are still sold by the Notaire (especially in country areas) despite the growth of estate agents almost everywhere and especially in towns.
There are several good reasons to choose to go through a Notaire's office when looking for a property.
- The first reason is that you will be directly in contact with the Notaire who will necessarily be involved in the sale process. The Notaire will accordingly know your intentions and your wishes and will therefore be better placed to look after your interests.
- He also knows the area well where the property is situated; knows for the most part the owners of the property and the background to the property. Hewill therefore usually be able to inform you about almost every aspect. He would also know if a motorway or railway is planned for the area; he would usually be aware of any restrictions which could affect the enjoyment of the property.
- If he does not know he will be in an excellent position to ask the relevant authority. He would also usually be able to advise you on the best way to purchase even if some are still reluctant about the clause tontine! He would be able to advise you upon the necessity of a Will etc.- His fees for negotiating the sale are fixed according to a scale. They range from 5% of the purchase price up to 45,735 Euros and up to 2.5% over 45,735 Euros.
On top of which you have to add VAT at 18.6%. In addition, you must allow for the legal costs in preparing the deed. These vary from 8 to 12%. The majority of this money goes in regional, departemental and governmental taxes depending upon the area.
Preparation of the Deed
The French Notaire has the monopoly for preparing the final deed and for obtaining all relevant searches about the property. He has to check that each party has full capacity or the right either to sell the property or purchase it. He will beresponsible for all searches relating to the current title of the property and for checking that it does not reveal any easements or restrictions which could reduce the value of the property or affect its enjoyment.
The Notaire will also check that no mortgage or charge exists over the property. If so he will do all that is necessary so that existing mortgages and charges are repaid on completion. He will also check the position with regard to planning and check that the searches do not reveal anything likely to reduce the value of the property. He will check that all rights of pre- emption havebeen waived.
The notary will not be able to complete the purchase before the local authority has provided him with the relevant information. Where there is a mortgage, the Notaire gets in touch with the Bank for the preparation of the mortgage deed.
On completion day
The Notaire has to read the deed through completely to both the vendor and purchaser and make any relevant amendments. He receives the money from thepurchaser; instructs the estate agency to hand over the keys and pays theproceeds to the vendor and any other appropriate person such as lender or tax authority.
After completion
The Notaire is responsible for having the title deed registered at the Land Registry. He will keep the original deed indefinitely but will provide you with a copy of the title which has been registered at the Land Registry and proves your ownership of the property. This takes about two months aftercompletion. You can however ask for a copy of the signed deed on the completion day.
Choice of Notaire
Each party can freely choose their own Notaire. You do not have to instructthe vendor's Notaire to act for you. Whilst it may not be sensible to instruct a Notaire in the south of France, if you buy in the north there is now no restriction on the area in which a Notaire can operate. From time to time where an estate agent is involved in the sale of a property, he may direct you to "his" Notaire. Take your independent route and choose your own Notaire.
Finally it is always wise to take legal advice from a lawyer in your own country familiar with French procedure before committing yourself.
Firstly, because the Notaire is not bound to draw your attention to every aspect but is just bound to answer your queries and no one can pretend to cover everything.
Secondly, as an international purchaser your requirements can differ from a French purchaser A French Notaire may not be familiar with them. This applies particularly to inheritance matters. Moreover non-French people are not always able to express in perfect French what they wish to achieve when buying the property or think that something can be dealt with afterwards.
Lastly the fact of purchasing a property in France and moving there permanently can incur consequences for foreign people which the Notaire may not advise upon. You have been warned.