Seeking legal advice when purchasing a French house : don't let your fairy tale become a nightmare ! (fr)

Un article de la Grande Bibliothèque du Droit, le droit partagé.

France > Droit civil > Droit immobilier

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Author : Emmanuel J. M. ARAGUAS, Attorney at Law 

Date : december 2020

Finding out the dream dwelling house in France may be far from a fairy tale, especially when you do not know little about French Law or even Legal French – and this irrespective of the “Brexit”!

These reasons, added to the fact that the local market fluctuations often vary from one area to another due to administrative reasons hard to grasp at a glance, should lead you to refer to a bilingual Estate Agent well experienced in your ‘target zone’.

Unlike English Law (Land Registration Act 2002 that came into force on 13 Oct. 2003), conveyancing in France abides by a unified system monitored through a Notaire’s office after a preliminary agreement took place in between the parties either in a face-to-face interview or through your personal representative.

It is noticeable that, since Napoleonic times and according to the French Civil Code, once this preliminary agreement called a “contrat préparatoire” (also known as the “compromis” or “promesse de vente” or “contrat de réservation (VEFA) portant sur un logement” depending on the specific project at stake) has been signed by both the seller(s) and the purported buyer(s), it legally attracts a biding effect insofar as it becomes a proper and definitive contact acknowledging the transfer of rights over a real property called a “vente d’immeuble” ou “vente immobilière” but under the suspended conditions stressed up /highlighted in its clauses (mostly related to fundraising and conformity statements related to the property and its internal or technical qualities).

Also where contracting in, the purported purchaser who is then being notified with the mandatory reports as to the said internal or technical qualities of the property is more than often due to pay a deposit of up to 10% of the net amount of money determined as the selling price of property (the “prix de vente”), which is usually kept into a stakeholder’s hands until either the completion (or the cancellation of this preliminary agreement in an amicable or a judicial way).

Therefore it is crucial to seek for a sound legal advice beforehand at least twice, not only with your local Estate Agent when visiting the property as to the physical and administrative aspects of the immoveable property, but also (and above all since the latter is not a lawyer but a businessman) when the drafting process has started by asking either your Avocat or the Notaire in charge of the next course of actions if everything is going smoothly.

At this stage you must bear in mind that, in your capacity as the buyer of an immoveable property for dwelling purposes sold as such, you are always granted by Law with a renunciation right which you can exercice over a period of ten days starting on the date when you are regularly notified with theaforementioned signed pre-contract (article 271-1 Code de la Construction et de l’Habitation in its latest version updated with the new Statute “Loi n° 2015-990 du 6 août 2015 – croissance et activité” a.k.a…“Loi Macron”).

Always bear in mind that, according to article 3 of the French civil code, only French Law applies here, irrespective of any reasonable intention to abide by English Law, for instance where referring to the Law of Property (Miscellaneous Provisions) Act (1989) s.2 & Sch.3UTCA 1977 & UTCCR 1999 (SI 1999/2083) Unfair Contract terms.

Once the ten days delay as elapsed, you have completed this first-tier step but do not “sabrez le champagne” quite yet!

You are now entering into a rather uncertain period of time, which usually lasts say a couple of months, until the paperwork are pulled up together by the local authorities (local Councils & Préfecture) which – depending on each specific situation – may have to give their ‘green light’ before your way towards completion is utterly cleared up (most of these are related to easements or covenants in the Code de l’urbanisme).

Registration of title is definitively the French Notaire’s monopoly, whose work is mostly to marshal the completion process by monitoring (again) the pre-contract enquiries of the seller, as well as water and drainage forms, land and charges department searches, company and index map search plus environmental matters.

Furthermore, it belongs to the Notaire, in his capacity as a registered lawyer, to handle the French ‘Anti-Money Laundering Regulation’ public policy according to a ‘thick-in-a-box’ approach which will lead you to sign (either personally or through a proxy) an official ‘title deed’ called “acte authentique” containing both your full proof of ownership, the description of the property and its known origins, the paperwork previously checked along with the administrative authorizations, the registration certificate (back from the local “Bureau des Hypothèques” – now called “Service de la Publicité Foncière”) as well as the receipt as to the funds held and paid into the Notaire’s accounts for the sake of completion and tax purposes.

Since 2015 the French Notaires’ effective e-conveyancing system operates in a very close manner to the one promulgated under the English Electronic Communications Act 2000 & LRA 2002.

Now that you are the legal owner of your French property used for dwelling purposes, you can pop up a sparkling treat but watch out! It makes sense to lead further research as to the possible hidden defaults of the house or the lack of care in the building construction or renovation process, which are theoretically covered by the French Civil Code and can be challenged in a civil dispute through your Avocat’s representation work in Court if necessary.

In this respects, great care should be taken from the very first step to hire the services of a French English speaking Avocat not only able to take you by the hand from A to Z by reading or drafting the preliminary contract as well as dealing with the Notaire directly where necessary and monitoring a technical survey of the property before completion takes place, this with a view to avoid your fairy tale to become a nightmare should a major concern be revealed only once the champagne digested…