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what is a notaire?

Having recently qualified as a notaire, I now belong to this close-knit group of French solicitors and am aware of the increased amount of responsibility that comes with this title.  It does not mean that I can replace a French-based notaire as I am not yet allowed to do so until I have my own practice or shares in an established Notarial Office in France.

However, notaires don't always enjoy a positive reputation in the UK, as people often want to have a law firm comprising UK solicitors to represent their interests; a legitimate concern because people may be unfamiliar with regulations to which a notaire must adhere and may also be unaware of the difference between and notaire and a solicitor. So where I hope I can really add value is in helping clients to understand the differing roles and responsibilities, avoid possible pitfalls and manage their expectations accordingly.

Both notaries and solicitors are regulated by their own legal system and practise under laws specific to their jurisdictions.  Solicitors work in a profession that is regulated in England by the Law Society and the Solicitors Regulation Authority (SRA), whereas notaires, in France, are Public Officials appointed by the Ministry of Justice and have their own system and practice that is distinctive from the other profession of avocat, or even solicitors.  There are more than 8,500 notaires divided all around the country that are able to practice either in a single practice or in a partnership.

Notaires do not prepare retainer letters when instructed, as solicitors would normally do in the UK.  Nevertheless, a notaire has a duty of care towards his client and cannot restrict this duty as a solicitor would be able to do in a retainer letter.  The main difference between notaires and solicitors is that the former can act for both parties in a transaction.  His duty of care obliges him to be impartial and never favour one party.

A notaire's fees are also regulated by decree, which is contrary to solicitors who can agree a fee with their clients before taking any instruction.  It is rare in practise that notaires will charge additional fees but it is permitted by the decree and it would be subject to client approval.

A notaire is empowered to put the French state’s seal on his deeds.  These deeds fall into the category of public documentation and are difficult to challenge.  They automatically provide evidence of their origin and also of the facts and statements they record.  They are also recognised as probative.  The public status, or authenticity, of a Notarial French Act would be taken away only if it was declared false judicially following a procedure known in France as ‘inscription de faux’. 

A notaire would be liable for any negligence incurred in relation to the documentation he prepares or the advice (or lack thereof) given.  The concept of inadequate professional service is not as advanced or regulated as it is in the UK, where, if a solicitor is slow and unable to organise his time in a diligent and professional manner, he might be viewed as professionally negligent and liable for damages.  Notaires would not face similar rules.

In addition, a notaire is insured for the work he carries out but there is also a professional guarantee provided by all members of the profession who are all personally liable for the work of their colleagues.

When signing documentation or deeds, a notaire should check the identity, capacity and the entitlement of the individual who is providing the signature.  Indeed, Notaires have to deal with the requirements relating to customers' due diligence and proof of identity must be provided from documentation such as passports and utility bills.  This system applies to solicitors when dealing with a client based in the UK or abroad.  As far as notaires are concerned, it is best practise to request a copy of the client's birth and marriage certificate from the Town Hall.  However, this only applies for French Nationals and it is true that a copy of a passport will be required if that individual resides outside of France.  Unlike in England, notaires read the deeds of sale and their personal identification will be carried out in the presence of the clients.  

The main concern for notaires and solicitors is the dealing of funds and transfers through their clients' accounts.  Money launderers will find it difficult to pass money through banks without providing a valid reason.  Passing money through a solicitor's client account and transferring it to a new, clean client account via cheque or electronic transfer is an effective money laundering transaction. It is for this reason that notaires and solicitors now take particular care with property transactions, for example.  By experience, it is probably more difficult to pass money through a notaire's client account because of the length the transaction takes.  Typically, it would be approximately two to three months before the transfer of ownership takes place and money launderers will seek fast transactions. 

When a notaire or solicitor feels that there is suspicion or a possibilty of money laundering in a transaction it is their duty to report it to their respective professional body.  In England solicitors will inform the Serious Organised Crime Agency (SOCA) and in France it is the Traitement du Renseignement et Action contre les Circuits Financiers Clandestins (TRACFIN).

It is an offence for either a notaire or solicitor who knows about or is suspicious of any money laundering that has taken place not to disclose that information.  Furthermore, he should ensure that the individual concerned understands the legal consequences and to what extent they will be bound by the relevant legal documentation. 

Practice shows that a lot of notaires dealing with foreigners do not advise on all the legal consequences and especially on cross-borders issues or international tax planning matters.  It is also common to hear of a notaire suggesting a French legal solution, which will impact badly on the foreign situation.  This applies for example to people setting up French holding property companies, or a French Will.  With the introduction of the EU legislation governing settlement of estates from August 2015, notaires will be required to advise on cross-borders jurisdictions.

If you would like to know about how this might impact on your current ownership of a property or assets in France or any plans you might have to purchase French property, please contact:

Marie Slavov in  Portsmouth on 023 9253 0346 or marie.slavov@bllaw.co.uk.

Alternatively you can email our French property helpdesk in our Portsmouth office at: frenchteaminfo@bllaw.co.uk or visit our French private assets and tax or international private client webpages for more information about other related issues.

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