The curious incident of the notaire.....

Image by Gnaphron via Flickr

Buying property in France, you are obliged to use the services of a notaire. It's for your own good, you are told...he is a sort of watchdog...nothing gets by him.

Now, in England, I have never used a solicitor when purchasing property....long experience of the breed in other modes of legal practice convinced me that there was no way I would trust any of them with my money, my malt or my maidservant given their propensity to idleness, incompetence and inefficiency - all in slow motion, save for the demands for payment which drop on the doormat with alarming regularity.

Thus, when buying property I would do my own searches and ask my own questions, fill out the Land Registry forms and that was that...cheap, fast and accurate.

Then I moved to France, that country of liberty, equality and fraternity, where the fraternity of notaires, profiting from the lack of equality which gives them the monopoly in property transactions, take liberties with their clients' rights.

Before anyone jumps on me to tell me that their notaire is wonderful, has saved them heartache and money, let me now say that either you have come across a phenomenon of nature or you don't have much French.
There have to be good notaires....I did know one once, in fact, the man who undertook my first purchase in France. He was a phenomenon of nature and I didn't have much French, let alone any understanding of French property law.

Totally plastered at the post lunch rendez-vous, he fixed the estate agent with a well oiled eye and asked how he, the estate agent, could possibly imagine that he, the notaire, could proceed with a legal transaction when the person laying down money, me, didn't understand the proceedings.

The estate agent replied that he would translate. The notaire said that that wouldn't do. He, the estate agent, had an interest in the transaction, to wit, his commission. An interlude of argey bargey then took place, in which it was clear that the estate agent would lose, since the notaire had the obstinacy of all persons in the legal profession multiplied by the effects of having drink - in quantity - taken at lunch.

The seller made the mistake of intervening to suggest calling his nephew, who taught English at the lycee. Both men turned on him to ask how that helped as the nephew might have English, but also had an interest...the family connection with the seller. He retired to his corner, in need of the towel and bucket, while the two main combatants got on with the tussle.

The estate agent said that we were all assembled and surely we could get on with things. Suppose we put a clause in the act that he had done the translation and took responsibility?

No. He didn't have the right to take responsibility.

Did we have to have an official translator?
No. Just someone competent.

But I am competent. Ask the client. She understands my English.
Doesn't matter whether she does or not. You have an interest and are barred.


This was going to last a long time...the notaire was coming out of the euphoric post lunch stage and going into grumpy mode. He turned to me and explained in clear and accurate English the nature of the problem.

I risked an intervention.

As his English was so good, could he not explain to me as we went along?
Yes - in English - he could.

Would that do?
Yes - in English - it would, if I was agreeable.

We had a wonderful afternoon. He read the acte de vente in French, as he is obliged to do, gave me a copy to read and told me what it was about in English, together with various commentaries on the family history and circumstances of the seller, who, happily ignorant of the calumny, nodded and smiled as his name was pronounced. The estage agent, fascinated, had to have several of these details explained to him in depth - in English - and the sale process was finally completed as the dusk of a winter evening set in.

Unfortunately, this notaire was on the verge of retirement and his practice was taken over by the big firm in the nearby market town, so I lost this phenomenon of nature. It was to be some years before I had any further contact with the breed and it has been downhill all the way.

As I say, they have a monopoly of property transactions and despite what anyone tells you, they are not there to protect your interests. They are there to ensure that the state has you marked down for the future as the owner of a taxable asset - thus the obligation to use their services.

Not, mark you, that all the English know this. Or they do know this and have made improvements to the system. There is a growing market of English selling among themselves and avoiding the notaire altogether which at some point will come to the attention of the authorities. Mr. Sykes will sell to Mr. Dombey in pounds sterling and will move out. Mr. Dombey will move in. The tax authorities send the bills for the taxe d'habitation and fonciere to Mr. Sykes, who tells Mr.Dombey, who pays them. What happens when Mr. Dombey sells in his turn to Mr. Smartalek will be interesting, as at some point Mr. Smartalek will get his tax bill from Mr. Sykes via Mr. Dombey and will decide not to pay it. Mr. Sykes won't have a bank account in France any more so the taxman can't seize it or freeze it, so what happens then?

Take Mr. Sykes to court for non payment and enforce the judgement in the U.K.? What if Mr. Sykes has emigrated beyond the jurisdiction, or has just gone to ground? Send the bailiffs round to Mr. Smartalek to seize his television? Or make a forced sale of his house?
Doubtless it will all end in tears, but Mr. Sykes is happy.


No, I wouldn't touch such a business with a bargepole and neither would you, but there are people who do....and are doing. Not far from me.

Now, a notaire is supposed to protect you from all this sort of thing and you will be told that all notaires are insured, so that if they are negligent, you, the client, will be reimbursed. In your dreams. Just try finding a lawyer to represent you against a notaire.

There is a case going on at the moment brought by a couple of old ladies who sold their house at well under its actual value on the advice of an estate agency. They have sued the estate agency, who won, roughly on the grounds that they told the ladies that the house would sell at that price!


Now, when you buy a house in France, part of the acte de vente deals with sales at an undervalue - thus dealing with the under the table in cash proceedings - and part of the fee you will be charged is to contribute to the operation of the notaires' database, which enables them to contest unreasonable enquiries as to value on the part of the taxman, so you would think that the notaire might just notice a drastic undervalue, wouldn't you?
No, of course not. He is a notaire.


The old ladies then started suing the buyers, on the grounds that they haven't been paid. You might think that a notaire might just notice the absence of folding stuff, mightn't you.
No....he didn't. He is a notaire.


In the meantime, the old ladies are paying the taxe d'habitation on the property now occupied by the buyers as the appropriate tax authorities noted that the ownership was in dispute and went for the bird in the hand.


The old ladies have just lost in the regional court of appeal.


You will note two things from this cautionary tale.

The notaire, the watchdog, let the whole shemozzle go through without a bleat, let alone a growl.

Nobody is suing the notaire.

Shifting boundaries in the rural scene.

For whatever reason, you have decided to buy a house in France. The bookshops and the net are awash with advice on how to get a mortgage, the necessity of independent legal advice in your own language, anything, in fact, that can transfer money from your pocket to that of the provider of all these good things.

I have yet to see any sensible advice on boundaries, beyond consulting the land registry map and walking the ground, but boundaries give rise to interminable problems if you are unlucky enough to have difficult neighbours.

Let us take a case. You have bought your rural idyll, a nice house with hedges round the garden, and you decide to repair the rotting chicken wire at the back of the garden to keep your pets secure. Two days later, you have an indignant neighbour on your doorstep, protesting that you are stealing his land. He will take you down the garden which you thought was yours and will show you a discoloured triangular stone...like the top of a pyramid for dwarf Pharoahs... which is well on your side of the new chicken wire, tucked neatly away under a hedge. That, he will tell you, is the boundary stone, and the boundary stone is incontestable proof of where the boundary lies.

At this point, you would do well to let him go away without argument, and do a little Sherlock Holmes work. Most difficult neighbours have a superiority complex, and this, allied to the usual rural view that anyone who does not speak good French must be an imbecile, makes them careless and gives you your opening. Check the pyramid and see whether it shows signs of being recently implanted..unnatural cleanliness is also a marker of dirty deeds behind the potting shed. Then go to where you think the boundary should be and see if the ground shows signs of disturbance...if it does, simply replace the pyramid in its' original resting place and put up two fingers to the neighbour who will be watching you from his attic window. Now it is up to him to take action if he wants to persist.



Should he do so, don't count on much help from your notaire, who drew up your purchase documents. While there is much hype about the protection offered by the notaire, it is just that...hype. The notaire's primary role is as a tax collector for the government which is why you are obliged to use one and cannot, as in the U.K. make a private sale between the parties. He will advise you to settle with the neighbour and if you still look mutinous, he will suggest that your only option is to hire a geometre, a surveyor, who will study the situation and impose a boundary on the warring parties by way of a document..a proces-verbal...which has legal force.
So, having just paid the fees for purchase, you now find yourself with another bill to pay and some uncertainty as to the outcome.

If you understood some French, you may have heard the notaire reading out something about 'bornage', which means marking out land, when you were signing the 'acte de vente' and would have thought that the land you purchased had been officially surveyed. In fact, in the context of the acte de vente, it means that the land has not been officially surveyed, thus the need to get it done in cases where there are problems.

The surveyor will take the land registry plan as his starting point, and will begin measuring from all the salient points to arrive at his view of where the boundary should be. You, the neighbour and anyone else whose boundaries are contiguous with yours will have to be present and all will have to sign the resulting document. The surveyor will then plant a modern boundary marker....less moveable than the pyramid - a round sign with the name of his firm attached to a solid lump of iron and concrete set well into the ground. Why can't the land registry plan be definitive, you might ask, since that is what the surveyor is using? Because it is a tax document and not conclusive proof of the nature and situation of the boundaries. And anyway, it it were definitive, the surveyor would be deprived of the chance to make money.

When there are real problems...such as where there are no obvious limits, you may be involved in the process by which folk memory is consulted. All the elderly people of the area will be summoned to give their views, to enable the surveyor to come to a conclusion....you have to watch this carefully. Village and family feuds which have nothing at all to do with you will come to the front....some elderly people may not have even been summoned if their views threaten to be contrary to your neighbour's claims....and claim and counterclaim abound. Mark you, it is a one stop introduction to the people in the area, their family history under the German occupation, and their moral and financial probity. The pity is that at this stage, your French probably won't be good enough to understand it all!

Some years ago, a British couple bought a cottage with land adjoining a farm. The boundaries on the plan were clear...one land boundary, a road on two sides, and a farm track on the other, where telegraph poles ran alongside the pathway. One year, they were walking their dogs when they noticed that the neighbour had ploughed land on their side of the track.

A mistake! The contractor hadn't understood!

The next year the contractor misunderstood again and ploughed even deeper into their land.

Not a problem!

Well, no, not for the neighbour.

The third year, they had had enough and confronted the neighbour, who assured them that it would not be in their interests to engage a surveyor as their other neighbour - the one with the land boundary - was a very difficult man and would cause trouble.

Undaunted by this propect, they summoned up a surveyor, who confirmed their original boundaries and, for good measure, found that neighbour A had also been encroaching on the land of neighbour B - the difficult one, who would cause trouble.

It was a victory, but it had to be paid for, and not only in monetary terms. They had not known their place in rural French society and accordingly suffered continual harrassment...their chickens killed by hunting dogs, their harmless moggies poisoned, the hunt hallooing round their house and shooting towards it at close range. They had their land, but never a quiet day afterwards.

It is not just private individuals who can be difficult.
Some years after I bought my first house, another British couple moved into the area, in a hamlet some three kilometres from the village. A private lane formed part of the property, running in front of their house, and local farmers found it a convenient shortcut to and from their fields. The owners were good natured, and did not close it off, but one farmer wanted to be sure, so the maire was despatched to take coffee with the new arrivals,whose grasp of French was, at that stage, rudimentary. She explained to them that ownership of the lane involved them in the costs of upkeep...obviously false as it was a private road...but that the commune was willing to help them by taking it off their hands for the symbolic price of one franc, so that they would have no worries in the future. As it seemed to change nothing, they agreed and signed over their property for one franc.
The sequel to this came some years later when the son of the cautious and enterprising farmer bought the house next door to the British couple and began a campaign of harrassment. The commune, asked to intervene, sent round a councillor who inspected the property and told the couple that the gates to their garden encroached on the commune's land.....the land they had effectively given away...by being less than one metre from the road. They were obliged to demolish their wall and gates and rebuild them further back, in their garden.


So, to be really sure of what you are buying in France you need to ask the seller to undertake an official survey before you agree to purchase, but he probably won't be willing, fearful of what cats might escape from the bag, let alone the cost involved in recapturing them.