“Why use a UK solicitor as well as a French notaire?” As I am a UK solicitor (and a French national to boot), you might reasonably expect my views to be biased – and of course they are. I can however make reasonable claim to see the other party’s point of view and am sufficiently experienced to recognise commercial expedience when I meet it. UK solicitors are required by the terms of their membership of the Law Society to act ethically and to decry practices of that ilk.
This subject has been cogitated by many greater learned legal minds than mine and most of the articles I have read are largely presented in support of one of the parties, so I felt that it might be more interesting and revealing to give you my “take” from the perspective of each of the contributing parties. For the purpose of our study we will assume a French seller, agent and notaire and a British buyer and solicitor.
For most people, the purchase of property is the single most expensive purchase they are likely to undertake in their lifetime, yet the vast majority of French/UK property transactions are undertaken without the buyer being properly legally protected or advised. Is it any wonder therefore that problems occur? Barely a week passes without someone calling our office to seek advice AFTER the transaction has been completed.
“The agent said it was quite normal” and/or “the agent said that this would be OK” are typical remarks by UK buyers when legal problems occur. Buyers seem quite happy to take the word of the agent and I suspect that they do so because they think that the French legal person, i.e. the notaire, will be acting just like their UK solicitor in UK property transactions. Well, in this belief, they are completely wrong! The notaire’s role is quite different; he does not act for buyer or seller, he acts for the state and is required to ensure that the transaction is conducted in accordance with the law of France. Despite there being no formal requirement for him to act for either party, he is French, the agent is French and the seller is French. One would naturally understand there to be some bias however small or unintended, simply because of this single fact.
But who acts for the buyer? The simple answer is no-one. He has gone along with the assurances of the agent and notaire but the system does not automatically have anyone looking after his interests. The appointment of a UK solicitor who specialises in French redresses that balance, especially if the person appointed speaks fluent French; better still if they are a French national.
The most virulent opposition to the appointment of a UK solicitor usually comes from the agent. He is understandably nervous of anything which might influence the progress of the transaction. Fortunately, the majority of agents realise the necessity for the buyer to be properly advised and co-operate. But the most difficult agents can be very obstructive, even refusing to provide basic information on the property. They persist in complaining that the involvement of a solicitor delays matters. Indeed, it can delay the transaction, but most of the time this is because all relevant information is not provided at the outset: for example, the “plan cadastral” is not available, the surveys have not been carried out or all planning permissions and building guarantees are not available from Day 1.
As mentioned above, the notaire is not there to advise the buyer (he might even be accused by the seller of bias if he did so). He makes sure that the transaction is conducted in accordance with the law (of France, of course). By way of example, let’s imagine a buyer who intends to install a septic tank at the property. Who is going to warn him that he needs such things as a soil survey or the consent of the local authority? Certainly not the notaire, who will consider such matters as being between the two parties, not requiring his intervention. From the seller’s point of view, this could delay the sale.
Some people also feel that using a notaire who can speak English will be sufficient for their needs. This is true if the notaire in question has worked in a solicitor’s office in England and is familiar with English law but not otherwise. British buyers with assets in their home country need to receive advice on the structure of their French purchase and only a lawyer who is familiar with English law can advise them satisfactorily. Too many people fail to understand that the interaction between the two legal systems can be complex and that great care must be taken before getting committed.
In addition, a buyer will not receive written advice from the notaire. In other words, everything is discussed verbally and it is very easy for a non-French buyer to become overwhelmed by the information that he receives during the signing of the “Acte de Vente” for example. I come across a large number of clients who simply cannot remember (and who can blame them!) how they purchased their property (i.e. “indivision”, “tontine” or other) or whether a particular clause was inserted in the contract. If a UK solicitor is appointed, he can provide a full written report on the terms of the contracts together with legal advice on how best to structure the purchase, depending on the buyer’s personal circumstances. That way, the buyer will be able to refer to it not only on completion but also years later. Those reports are not glorified translations; they provide legal advice to protect the buyer. Translations of the “Compromis” or “Acte de Vente” are not sufficient as a translator can only translate what is in the documents but what if a significant clause is missing?
A UK solicitor specialized in French law will act in his client’s best interests because he has a duty of care which the notaire does not have. As a general rule, he will check if the seller is the legal owner; if the property is affected by easements such as rights of way; if the seller has carried out recent building works; if VAT is payable on the purchase price; if the buyer is likely to receive the consent of the local Mairie for his own proposed works; if the sewage installation complies with current regulations; if the boundaries of the property are as shown on the “plan cadastral”; if legal proceedings affect the owners’ association of a building of which the property forms part, etc. He will also advise on the risks to a buyer who decides to purchase in euros, on the ownership structure and on the way existing English Wills should be amended post completion. Be aware also that a solicitor must have professional indemnity insurance, which means that if he has acted negligently, the buyer is protected.
These issues will no doubt be debated “until the cows come home” but in the meantime, buyers have to make decisions and I hope these notes will help them make more considered choices. I think the days of crossing your fingers and hoping for the best are over.
By Annie J Digby, Solicitor, Guellec-Digby & Co