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.
