The role of the French Notaire



The role of the Notaire - summary

Under French law, the transfer deed, or the "acte authentique", must be prepared by a Notaire. It is ruled by the French civil code which organizes and governs the contractual relationships between the buyer and the seller providing for clauses such as waranties,... The Notaire will act for both the seller and the buyer, though the buyer will instruct him and pay his fee. There is nothing to stop the seller from instructing its own Notaire who will assist the buyer's Notaire and share the fee with him.

The Notaire does not represent the interest of either party in the transaction; his role is not the same as, for example, an English solicitor in a property transaction. The Notaire ensures and guarantees that the transfer of the property is perfect and that the conditions of the transaction are met.

Some Notaires may not be fluent in English. You will find in the attached Notaires directory their language qualification. If you are unfamiliar with the French language and French legal system, it is prudent to obtain independent legal advice and guidance from an English-speaking lawyer or qualified legal advisor who can work in conjunction with the Notaire.


The role of the Notaire as public officers

With about 4,500 offices, 8,000 Notaires and 45,000 clercs, the notarial profession has representation all over France and has an effective monopoly. The Notaire is the public officer responsible for receiving all the "actes" and contracts to which parties wish to confer a 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 French Minister of Justice (Ministre de la Justice) and is appointed by decree. The Notaire's office (étude) depends geographically on the area in which he lives.

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, he draws 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 wedding settlements between husband and wife; settlements such as "donations entre epoux" (gifts between spouses),shareouts, wills, inheritance etc.

He has the monopoly in matters relating to purchases, sales, exchanges, co-ownerships of all real estate and to 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 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 "Caisse centrale de garantie des notaires", representing all French Notaires, guarantees the professional responsability of your notaire in his role as public officer.

On request he must inform you of his professional fees which are fixed by decree. He must provide you with an account statement and the cost of the 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. 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 relating to property's sales

1. Preparation of the deed
The Notaire has the monopoly for preparing the final deed and for obtaining all relevant informations 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 be responsible 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. He will 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 check the position with regard to planning, zoning and check that the searches do not reveal anything likely to reduce the value of the property. He will check all aspects relating to others nuisances such as lead poisoning, abestos, termites…. Should the property have more than 1 hectare of farm or vineyard, he will check that the "Société d'Amenagement Foncier et d'Etablissement Rural (SAFER)" does not use it right of pre-emption. He will check that all other rights of pre- emption (tenant, municipality,...) have been cleared. He will question the property manager (if any) about the cost of running your futur property and any new investment to be undertaken. He will not be able to complete the deed before the local authority has provided him with any relevant information. Where there is a mortgage, the Notaire gets in touch with the Bank for the preparation of the mortgage deed. Given the complexity of this work, it may take up to three months before you can, actually, sign the deed.

2. Fees and transfer taxes calculation
The Notaire will calculate the exact amount of the notary fees and transfer taxes which are payable by the buyer.
The following page of our partner Crédit Foncier (a French leading mortgage bank) will enable you to estimate those costs.
Credit Foncier's tool

3. On completion day
The Notaire has to read the deed through completely to both the seller and purchaser and make any relevant amendments. He receives the money from the purchaser; instructs the estate agent if applicable to hand over the keys and pays the proceeds to the vendor and any other appropriate person such as lender or tax authorities. Parties have to be physically presents or be represented.

4. 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 after completion. You can however ask for a copy of the signed deed on the completion day.
NB: note that all the Notaires are under law jointly responsible for any error that could have been made by the Notaire which has concluded the deed.