How French Conveyancing differs from English Conveyancing

Anyone who has purchased a property in England will be familiar with the procedures. The conveyancing solicitor makes enquiries of the seller’s solicitor about the property usually with standard enquiry forms, makes searches of the local authority, negotiates the contract and then completes. A surveyor inspects the property and produces a report on its condition and a valuation. The procedures in France are quite different and in some ways better than the way we do things in England. The main point to grasp is that the notaire is not like a solicitor. His job is to ensure that the title is transferred to the purchaser and also that all stamp duty and other taxes are collected. As such he does not go into the same level of detail as a solicitor. It is also noticeable how little a notaire is prepared to put in writing when it comes to replying to any specific questions.

In French conveyancing there are no standard pre-contract enquiries. Attempts to obtain written replies to enquiries about the property from the seller will meet with resistance. Notaires will certainly not answer any. The key is to take your time and ensure that any matters which you are concerned about are included in the contract for sale (“compromis”). Do not be rushed into signing the compromis. The compromiswill have standard terms but any particular matters such as say, confirmation that there has been no dispute with a neighbour needs to be dealt with by a declaration of the seller in the compromis. In general the notaire will not volunteer to insert such clauses in the compromis preferring instead to keep to the usual precedents they use. It is up to the buyer to raise matters which may either be of a general nature or more likely specific to the property. These will often arise from an inspection of the property and may include declarations of rights of access over other land and declarations as to the condition of the property.

The notaire will not usually obtain information for you about service charges in the property. These are usually dealt with shortly before completion after you have signed the compromis. The notaire will not usually ask the council about any road works, plans for adjoining properties or other proposals which may affect the property. These again need to be dealt with by you direct of the Mairie.

It is important to remember that compromis in France are longer and more detailed than contracts in England. You should not be concerned about this as a purchaser provided the terms are fully explained to you and you understand them. In general purchasers will be better off if the contract spells out in more detail their rights and is tailored to the particular property. It is worth reading the description of the property in the compromis. This is always set out in detail and includes the number of rooms and annexes. If the description does not tally with your inspection of the property this means there has been some building work which may lead you to making further enquiries such as asking for copies of planning permission. In England you never see detailed descriptions of the building in a residential sale contract. It is sensible to ensure that the property you are buying is correctly described in the compromis.

The French law does not have the English concept of “subject to contract”. This wording is typically put on documents in England, such as letters to make it clear that no contract comes into existence until the parties formally “exchange contracts” which is always done by the solicitor usually in conjunction with the payment of the deposit. In France it is easy to create a binding contract and this comes about once agreement is reached on the price and the property as well as the parties. In some cases buyers are asked to sign an “offre d’achat” which is a simple offer stating the price and the property. The “offre d’achat” is sent to the seller who can normally accept it within a stated time period. It is important to realise that this document creates a binding contract which many English buyers do not appreciate. If you do not wish to be bound immediately you should simply ask for a compromis to be prepared instead.

In France no survey is generally undertaken of the property. Instead there are various diagnostic searches. These are mandatory although some do not have to be undertaken depending upon the age of the property and its location in France. The diagnostic searches cover lead, termites, asbestos, electrical risks and “natural and technological risks”. The diagnostics are carried out by specialist companies who produce reports which are obtained by the seller, not the buyer. The reports are then given to the seller. It is important to appreciate that the diagnostic searches are carried out in a non destructive way. In other words no holes are bored into walls or floorboards lifted. The liability of the diagnostic company is as such limited to what they can discover by non destructive inspection. It is open to you to obtain your own English-style survey although this is quite rare in France. It is important to read the diagnostic searches properly. They are of a technical nature and if your French is not reasonable you will have difficulty reading and understanding them. If any issues are raised by the diagnostic searches or you are concerned about matters which could not be revealed by non destructive inspection then you should seek additional clauses to be inserted in the compromis. The liability of the seller is usually limited to defects in the property which are “hidden” and of which they are aware. As such it is usually very difficult to sue the seller if you, for instance, discover that there are termites under the floor boards which have not been revealed by the diagnostic search.

In most parts of France there are rights of pre-emption over the property. This usually means that the Mairie (town hall) has a right of first refusal over the property. The seller once he has concluded a contact with you has to offer the property to the Mairie on the same terms as he has agreed with you. It is quite rare for the Mairie to decide to buy the property. There are similar type rules for agricultural property.

Different kinds of contract

There are broadly two types of contract for the sale of land in France. One is the “compromis” and the other is “promesse de vente”. The compromis is a contract which binds both parties whilst the promesse de vente gives the buyer an option to purchase by a stated time. Important legal consequences flow from whichever form of contract is drawn up at the outset. In our experience notaires sometimes do not think the implications through and buyers have no idea which type of contract puts them in the best position. For instance in a compromis time is generally not of the essence for completion. This means that if there is a delay in completion then you cannot claim that you are no longer obliged to purchase the property. The completion date is simply put back a reasonable period of time. In the case of a promesse de vente the position is different and if you do not exercise your option and complete on the stated time you will lose your deposit and the seller is free to sell elsewhere.

In the case of purchase of residential property there is a consumer protection law which gives the buyer a seven day cooling off period. It is important that specific notices are served on the buyer which have to be done by registered post. These are usually sent by the notaire. This area has given rise to a great deal of litigation. The buyer can withdraw for any reason until a period of seven days has elapsed from receipt of the notices giving him his right to withdraw.

The French contract is concluded at a much earlier stage than the equivalent English contract. The French contract contains various “suspensive conditions” which allow the buyer to withdraw from the transaction if certain conditions are not met. This will include for instance any adverse information received from the town hall which materially affects the price of the property. It is important that these “suspensive conditions” are checked through carefully. It can include matters such as obtaining a mortgage or being able to sell an existing property. Needless to say this is a fruitful area for litigators and care needs to be taken to ensure all conditions you may need are included and that the drafting of the clauses is watertight.

February 2012