The role of the notaire

Christophe Dutertre explains what the notaire is responsible for when carrying out the searches during a property transaction

When you purchase a property in France you have to appoint a notaire to deal with the transaction, preparation of the deeds and the registration of the document with the Land Registry.

Notaires are public officials, appointed by the Ministry of Justice, with their own system and practice which is distinctive from the professions of avocats or solicitors. They are empowered to place the French state seal on any deeds that they prepare. These deeds fall into a category of public document and are difficult to challenge. They are automatic evidence of their origin, and of the facts and statements they record, and are also recognised as evidence in court. The public status or the authenticity of the notarial French act is lost only if it is declared false by the court following a procedure known as inscription de faux. The notaire also has a duty of care towards his clients and cannot restrict his duty as can a solicitor when agreeing terms of their retainer with a client.

Here I will cover the searches that a notaire is responsible for when instructed to deal with the sale of a property.

initial contracts

As soon as an offer is agreed between the parties, the signing of a compromis de vente is almost always the next step in the property transaction. This document can be prepared by either an estate agent or a notaire. The purchasers will be provided with the result of the diagnostique surveys on the property (including asbestos, termites, lead poisoning, gas and electric installation).

A notaire can be appointed at this stage to prepare the preliminary contract, which will reflect any concerns or information that he would have found when preparing it. For this reason it is advisable to have a notaire on board from the signing of the initial contract to avoid any surprises during the process.

However, it is commonplace for estate agents to prepare the preliminary contract and for the notaire to become involved when instructed by the agent and when they have received copies of the compromis de vente signed by both parties.

the searches

At this stage the notaire starts the searches in order to prepare the final deed and provide a clear title to the purchasers. The notaire’s searches are limited to the property, they are not obliged to inform the parties, especially the purchasers, of any planning application on adjacent land. It is the buyer’s responsibility to check any applications lodged at the mairie (town hall).

The notaire will notify relevant public bodies who might be the beneficiaries of a pre-emption right, i.e. a first option to buy the property, such as the mairie or the local farmers’ committee SAFER.

The DIA (d�claration d’intention d’ali�ner) document shows the identity of the buyers and the proposed price. The public beneficiary has two months to reply to the notaire, after which they are deemed to have waived their right to buy. In most cases, the beneficiary does not want to pre-empt and does not bother replying. Hence the notaire makes sure two months have elapsed before the final deed is signed.

Furthermore, the notaire will request a town planning certificate (note de renseignement d’urbanisme) from the mairie that shows the rules applicable to the property, and whether there are any public covenants applicable, or road-widening schemes.

It also indicates in which ‘zone’ the property is situated (rural or urban, for instance). This could influence the type of works or construction allowed. It might in addition reveal that the property is situated in a listed building area, where more restrictive planning rules apply.

The local authority does not provide any other document. It is up to the buyers to make their own enquiries as to the surrounding plots or any future public projects in the town.

property debts

The land registry provides the �tat hypoth�caire, which indicates who the owner of the property is and whether any charges or easements are registered. The notaire has to contact the beneficiaries of any charges for their permission to remove them, and to confirm how much is owed to them, especially when there is an outstanding mortgage. Should the charges be greater than the purchase price, the buyers can pull out of the transaction and recover their deposit.

The notaire also contacts the French Revenue to obtain the cadastral statement (relev� cadastral), which confirms the references of the property as shown on the boundary plan. A property is not known by its address, only by its cadastral reference. The cadastre is a special registry where properties are recorded. The notaire also checks the previous title deeds for the last 30 years.

The identity and marital status of the buyers will also be thoroughly checked. Married women are required to provide a copy of a document showing their maiden name (in France, any official or legal document will always indicate the maiden name). The notaire checks the central registrar for civil status documents where issues dealing with mental capacity or marital status are recorded for French nationals, but also to some extent to foreigners.

completion

Once the notaire is satisfied, they prepare the draft of the final deed and set the completion date. The final breakdown is addressed to the purchasers and a requirement for the funds to be transferred beforehand. Notaires are required to check the origin of the funds to ensure that the identification of the parties and the shares purchased by the buyers reflect the origin of the transfer.

It is common, especially for UK investors who are married under the regime of separation of ownership, to buy a property in joint names but have the funds sent by only one spouse. Note that this situation could trigger payment of additional tax if the administration considers that one spouse is subject to gift tax.

Christophe Dutertre, French legal team, Blake Lapthorn Tel: 02392 530369 www.bllaw.co.uk