The role of the notaire in France

The role of the notaire - summary

Under French law, the transfer deed, or the "acte authentique", must be prepared by a notaire. French "civil code" organizes and governs the contractual relationships between the buyer and the seller providing for clauses such as waranties,guarantees... The notaire acts 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 his 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 (in a property transaction) is not the same as, for example, an English solicitor. The notaire ensures and guarantees that the transfer of the property is perfect and that the conditions of the transaction are met.

Not all notaires speak fluent English. The attached directory of notaires includes references to language qualifications. 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 with the notaire.

The role of the notaire as government official

With about 4,500 offices, 8,000 notaires and 45,000 clercs, the notarial profession is represented all over France and has an effective monopoly. The notaire is the government official 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. 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.

Deeds, like judicial decisions, are probative and binding. The notaire advises on relating matters to private, family, business, fiscal, ccoporate 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 a monopoly in matters relating to purchases, sales, exchanges, co-ownerships of real estate, leases, mortgages etc. He can form companies, organise the sale of businesses and prepare commercial leases, rural leases etc.

The notaire advises in matters of property valuation and may arbitrate disagreements between individuals. He is the impartial arbitrator of contracts and the adviser to people, individuals and organisations. He guarantees the morality and the validity of contracts and is directly responsible for the deeds he receives and for the money with which he is entrusted. The "Caisse centrale de garantie des notaires", representing all notaires, guarantees the professional responsability of your notaire in his role as public officer.

On request, he must state his professional fees which are fixed by decree and must provide you with an account statement and the cost of the deeds you have given him to draw up. He must provide you with a copy of the deeds which concern you, and you must 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 their legal responsibilities and to suggest the legal form which is best suited in order to avoid any subsequent legal or tax problems.

The role of the notaire relating to the sale of property

1. Preparation of the deed
The notaire has a monopoly for preparing the final deed and for obtaining all relevant information about the property. He must verify that each party has full capacity or the right either to sell the property or purchase it. He will be responsible for all title searches 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, naturals risks... 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)" has not exercised its 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 future 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 will contact the Bank for the preparation of the mortgage deed. Given the complexity of this work, it may take up to three months before a deed is ready for signature.

1.1 Documents to be provided by the purchaser
1.2 Documents to be provided by the vendor

2. Calculation of fees and transfer taxes
The notaire will calculate the exact amount of the notary fees and transfer taxes which are payable by the buyer.
See page "Buying property".

3. On completion day
The notaire will 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. All parties must be physically present, or be represented.

4. After completion
The notaire is responsible for having the title deed registered at the Land Registry (Conservation des hypothèques). 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 may, however, ask for a copy of the signed deed on the completion day.
NB: note that all notaires are, under law, jointly responsible for any error made by the notaire who has concluded the deed.

How to become a notaire