Breizh Poellrezh SF - Douarañ Santel
Breizh Poellrezh SF - Douarañ Santel

The Transaction

The laws relevant to the purchase of a property depend to some extent on the type of property you buy. For example, a vineyard or farm will be subject to different procedures and costs. On the assumption that you are buying a house with 1 hectare (2.47 acres) of land or less then the procedure is as set out below.

Should the house have more than 1ha. the procedure is basically the same except that there might be intervention by The Société d'Amenagément Foncier et d'Establissement Rural (SAFER) which has an automatic right of pre-emption in order to preserve land which it feels should either continue or remain in agricultural use. It rarely exercises this right, but the Notaire (roughly the equivalent of a Solicitor/Lawyer) is under an obligation to notify the SAFER to give it the opportunity to object to the sale. Should it do so, then any agreement is null and void and you can recover the deposit paid on 'exchange'.


Initial Agreement

An agreement is negotiated between buyer and seller and the initial contract which is called a Sous-seing Privé, if drawn up by an French Estate Agent, or a Compromis de Vente, if prepared by the Notaire, is then signed by both parties. This is a legal document, binding on both parties and should not be taken lightly. At this stage the buyer pays a deposit of a minimum of 10% of the purchase price which remains `blocked' in a special account at the Notaires office until such time as completion takes place or the purchase is aborted. At this stage the property is taken off the market.

There are other kinds of less familiar contract such as the Promesse de Vente where the contract is not binding on both parties to the same extent as the Compromis. By signing it the vendors still commit themselves to selling the property to the purchasers, but this commitment takes the form of promising not to sell it to anyone else within a stated period, usually 3 months. A deposit of between 5% and 10% is again paid and again the purchaser will usually forfeit the deposit if they do not go ahead.

There exist other forms of preliminary contract such as the offre de vente, offre d'achat and an exchange de lettres - none of which are recommended in preference to the Compromis or the Promesse.

Surveys of the condition of the property you intend to purchase by professional surveyors or 'experts' are unusual in France. It is more usual to request local artisans to give an opinion as to the condition of say the roof, or the walls and for them to give quotations for the work. French buyers would be more likely to approach an architect or 'expert' but even then it is unusual for them to be asked to prepare a detailed report as has become `de rigueur' in certain European countries. From the 1st September 2002, an asbestos report will need to be undertaken before the completion of the sale. It is certainly prudent to carry all this investigative work before signing the Compromis as once this agreement has been reached - as mentioned above - it is binding on both parties. Once the Compromis or Sous-Seing Privé has been signed there follows a period of generally 6 - 8 week sin which the searches are carried out to ensure that the property is not subject to any imminent environmental changes and during which time the purchaser will be required to resolve the financing of the purchase. These searches and the other contractual matters are carried out by the Notaire. The Notaire is unlike most European Solicitors/Lawyers as he is not appointed to act for either party in the transaction but as a public official whose duty is to the State. Their function is to ensure that the transaction is carried out legally and accurately and in accordance with the proper processes and to give the transaction absolute validity that cannot be contested. Accordingly, it is unnecessary to appoint a second Notaire to act for yourselves, although you may feel more `comfortable' having your own Notaire or perhaps European Lawyer to explain some of the points that arise which may be unclear as it unusual for Notaires to volunteer advice..

If the buyer intends to take out a mortgage then it is necessary for this to be declared at the time of the agreement and a substantive clause in the Compromis protects the purchaser's interests in the event that a loan is not made available. In this event, the sale does not proceed and the deposit is returned. In the event of the discovery of a `planned nuisance' through the searches, the buyer can withdraw and the deposit is returned. Should, however, the buyer break the contract, the deposit is paid to the vendor as an indemnity - conversely, should the vendor break the contract, the deposit is returned to the purchase
r.

Compromis de Vente

There are three types of conditions in a purchase contract. If you want to make changes to them or add other conditions into a contract, it is important to understand their effect and the difference between them.

GENERAL CONDITIONS

General conditions or conditions générales are the ordinary standard conditions you will find in most contracts to purchase French property such as:

 

  • That the purchaser will take over all the tax bills for the property from the date of signing the acte de vente.
  • That purchaser will take the property as he finds it with no recourse against the seller, even for defects in the sub-soil or differences in the measurement given in the contract and the actual measurement of the land being sold.
  • The vendor will not make any significant changes to the property between contract and completion that might affect its aspect or value without the express permission of the purchaser.
  • The vendor will not give anyone else any rights over the property between contract and completion.


SPECIAL CONDITIONS

Special conditions or conditions particulières are additional conditions, not normally part of the contract which may be required by one of the parties, the fulfilment of which is under the control of the party it is imposed on. For example:

 

  • That the vendor repairs the storm-damaged roof.
  • That the vendor removes all the rubbish from the garden before completion.
  • That the septic tank is emptied before completion.


If one of these conditions is not fulfilled, you may not withdraw from the purchase but you can ask the notaire to retain some of the purchase price until the matter is put right or to allow you to put it right yourself.

SUSPENSIVE CONDITIONS

Suspensive conditions or conditions suspensives are the most interesting of the 3 types of conditions.

A condition suspensive is a condition which, if not realised allows the purchaser to withdraw from what would otherwise be a binding contract. The nature of these conditions is such that the outcome is beyond the will of the parties. Hence they need to be very carefully drafted.

Most standard French purchase contracts only have a few conditions suspensives such as:

  • That a search at the land registry reveals no mortgage or charge on the property that cannot be cleared by the sale proceeds.
  • That local planning information does not reveal any public utility easement which interferes unduly with the normal use of the property.
  • That no authority that has a right of pre-emption over the property exercises this right.

There are others, which are absolutely necessary in certain circumstances such as:
 

  • That the purchaser is able to obtain a loan which he needs for the purchase.
  • That the purchaser is able to sell his UK property (if the purchase is dependent on this) although it should be noted that this type of clause is rarely acceptable to a French vendor.


There are many others that could be added to make the agreement very safe for the purchaser. However, the vendor is entitled to refuse to sign the contract if he is not happy with the contents so it is advisable to be reasonable about inserting extra conditions.

You may be unsure about the structure of the property and therefore want to have a survey done. You can include a condition suspensive to say that the purchase is dependent on certain defects not being revealed by a survey. You should certainly have one to say that a search of title deeds must not reveal any easements such as a private right of way across your land that would affect the value of the property.

You could also have a condition suspensive stipulating that you must still be alive and capable when the acte de vente is due for signature. Otherwise your heirs may be expected to proceed with the transaction on your behalf.

It is unwise to sign a purchase contract until it has been carefully checked to ascertain what is and what is not included. Find a lawyer who is competent to draft any additional clauses that may be necessary and to negotiate on your behalf to have these included in your contract.


Final Contract

At the end of this period, which can be extended at the agreement of both parties, the final contract, the Acte de Vente is signed at the Notaire's office and the property passes to the buyer, who must pay the balance of the purchase price to the Notaire who then pays the vendor. It should be noted that the balance must be in the Notaire's possession before the contract is signed. It will also be necessary to provide to the Notaire before completion a copy of your birth certificate translated into French and, if applicable, a copy of a Marriage Certificate also in French.

Early advice should be sought in order to understand fully the complexities of French Succession Law which does not allow you to leave your share of the property to whom you wish - even if you have an existing Will. There are ways of circumnavigating these laws but if you wish to leave this French property to your heirs, the cats' home or whoever, then it will be necessary for you to Take action before the purchase is completed. Any provision made MUST be included in the final contract.

From the signing of the Contract the purchaser is responsible for the insurance of all the buildings on the property.


Fees and Commission

The buyer pays the legal fees and registration taxes which amount to approximately 7.5% of the purchase price, including any geometrist's costs that might have been incurred such as establishing boundaries, repositioning boundaries and preparing plans for the Acte de Vente. These fees are paid to the Notaire on the day of signature of the Acte de Vente and are paid as an 'all encompassing' sum together with the balance of the purchase price.

The vendor pays the Agency's commission. Under certain exceptional circumstances these are paid by the purchaser but if this is the case this should be agreed in advance and included within the Mandat, the official instruction from the Vendor to the Agent, and made known to the purchaser at the outset.

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