Understand your legal obligations with this handy checklist
When the time has come to sell your property in France, it is tempting to think that as a seller, your obligations are limited. It is, however, important to fully understand your position and for this purpose, the following is a list of some of the points that a seller should consider:
The notaire who dealt with your purchase holds your title deeds in his archives in perpetuity and we recommend that the same notaire be appointed in order to avoid another notaire wasting time in applying for a copy of the deeds from the relevant authority.
SURVEYS AND SEWAGE
You will need to have surveys done such as asbestos, lead poisoning, termites etc but please check first if some of the surveys you received when you bought your property are still valid. For example, the energy performance certificate is valid for 10 years and so if you have owned your property for less than 10 years, there is no need to spend money on another certificate.
You are liable for the costs of the surveys but the purchaser is liable for the notaire’s fees and expenses, even if each party has their own notaire.
If the property is on mains sewage, you may have to arrange a survey of the connection as some local authorities request it.
If the property has a septic tank, you will need to renew the survey as they are valid for three years only. This survey, and the survey of the connection to the main sewer, should be dealt with shortly after the property has been put on the market as we understand that in some areas, surveyors are very busy dealing with their backlog caused by the pandemic. It could therefore take several weeks before the survey can be done.
Check the results of the surveys and in particular, if parts of the property or installations could not be checked for various reasons, such as lack of keys preventing access. If areas of the property have not been surveyed and, for example, asbestos or termites are subsequently found in those areas, you will remain liable for any damage caused. A second visit to the property by the surveyor is strongly recommended so that he can survey those parts.
Once you have accepted your purchaser’s offer, either the estate agent or the notaire will draft a compromis de vente or promesse de vente (preliminary sale contract). We strongly recommend that you have their terms checked by an independent legal adviser specialised in French property matters. A translation is not sufficient as only the terms in the contract can be translated. A translator cannot translate clauses that are not, but should be, included in the contract and a translator (and estate agent) do not provide legal advice.
Check the description of the property, in particular if you have carried out building works to the property during your period of ownership. The description should be accurate.
If building works have been undertaken in the 10 years preceding the sale, you should provide the notaire with a copy of the invoices. These will be used to calculate your French capital gains tax liability (if you are selling at a profit, of course).
If your property is an apartment it is important that you advise the purchaser if an annual general meeting of the residents will take place between the date of signing the preliminary contract and the final deed. If works are agreed by the residents at the meeting and the purchaser has not been advised of the meeting, you will be liable for the costs of those works.
You must disclose any latent defects (known as vices cachés) that you are aware of to the purchaser, failing which you may remain liable.
Please note that since Brexit, a tax representative must be appointed to represent you as a seller if the sale price amounts to €150,000 and above. We recommend that you obtain a couple of quotes from tax representatives as their fees can vary.
It is important to check the conditions precedent in the contract – for example, if the purchaser must obtain a mortgage or sell their house prior to the purchase. In such circumstances, we recommend that you don’t travel to France or empty the property before you have received confirmation that the purchaser has obtained a mortgage offer or sold their house.
When you are happy with the terms of the contract, you can sign it either in the UK or in France. If you cannot travel to France, you will have to sign a power of attorney giving one of the notaire’s clerks authority to sign the contract on your behalf. However, it is not advisable to send the notaire your signed power of attorney before you have had a chance to check the terms of the documents that will be signed on your behalf. Some notaires deal with the execution of documents online.
Make sure that you know when the purchaser’s 10-day ‘cooling-off’ period expires. It doesn’t start when you sign the preliminary contract, it starts from the day after the purchaser receives a copy of the contract signed by all parties by registered post, by hand or by secure email from either the notaire or the estate agent (if the latter has drafted the preliminary contract).
The notaire will not carry out his usual searches until the purchaser’s cooling-off period has expired, hence the need to ensure that you are aware of the date when the contract becomes binding.
Make sure that the draft acte de vente (transfer deed) and its attachments are checked and explained to you prior to completion. Again, a translation is not sufficient to protect your interests.
Ask the notaire to send you a completion statement a few days before completion so that you can check it and know the exact amount of the sale proceeds. You will need to give the notaire your bank account details in order to enable them to send you the funds. Don’t expect it to be sent to you immediately after completion, it can take a few days.
Completion can take place by attending the completion meeting at the notaire’s office or by power of attorney. Again, make sure that you receive a copy of the final contract sufficiently in advance so that you can check its terms.
Once the transaction is completed, you should receive two attestations from the notaire. One will show the sale price and the other will not. These documents can be produced whenever you need to prove that you are no longer the owner of the property, for example, to your house insurer, who is likely to ask for it before cancelling your policy.
The sale of French property can be just as daunting as its purchase but it need not be so, especially if you have your own independent legal adviser holding your hand. It will give you peace of mind in the knowledge that your interests have been protected. You can probably enjoy a glass or two in celebration – I know I would.
Annie Digby runs Guellec-Digby French property legal services