If you are selling a property in France with a hectare or more of land, then the sale will be referred to SAFER (a government agency charged to protect any agricultural potential of the land). They may pre-empt the sale and acquire all or part of the property pending the transfer to a registered farmer.

Any farmer wishing to move his business to France would be well advised to consult the local SAFER office to review the properties for sale on their books, as there may be a bargain to be found.

For sellers of land, there are different considerations especially where the property has land in excess of 1 hectare (2.4 acres) and the character of the property might, in the seller's view, be substantially diminished if the surplus land was excluded from the sale. What can the seller do if SAFER express an interest?

First the notary will advise SAFER of the pending sale and they have two months within which to exercise their right of preemption. If they show interest in the land, they may either preempt the sale at the contract price or if they regard the sum as inflated (as may often be the case for amenity land) they can refer the sale to their valuers who may reduce the price. Accordingly the seller might be faced with a substantial reduction in the sale price. The seller can appeal to the Tribunal de Grande Instance however if the court fails to overturn the SAFER ruling, the owner will be liable for the legal costs if he decides not to proceed with the sale. He cannot withdraw the property if SAFER state an intention to pre-empt at the original asking price.

You do not need an architect for an application for planning permission unless the works concerned, the surface hors oeuvre nette (SHON), exceeds 175 square metres. Don't forget however that the total area after the improvements including the existing and improved areas must be less than 175 square metres.

The law 2008-561 of 17 June 2008 has changed the rules of civil liability for avocats.

As a general rule, the limitation period for making a claim against an avocat is five years and similarly the period for an avocat to recover his fees against his client is also five years.

Under French law, it is possible for minor children to become the legal owners of property after the succession of a deceased parent, but happens when the property is sold? How can a buyer contract with a minor and what kind of condition can he include in the precontract?

The sale cannot proceed with the consent of the court (juge des tutelles) who will approve the sale on behalf of the minor child, but a buyer of property should be wary about signing a precontract with a conditional clause in this respect. Why? Because if the approval of the court is not forthcoming the sale will be null and void on the grounds of the seller's incapacity. The buyer should wait for the consent of the court before signing the precontract and the estate agent must take care not to incur any personal liability for failing to advise the parties of the correct legal procedure. If the buyer incurs losses as a result, the estate agent may be liable.

Say you are selling your house in France and plan to move back to your house in the U.K. You have been living in your French houses as your principal residence but how can you prove this to the tax authorities to gain the relief?

Many years ago, before the notarial profession was charged with collecting the CGT on house sales, the owner of house would make a simple declaration to the effect that his house was his principal residence. Nowadays, however, the notary would require proof of fiscal residence which the seller can only satisfy by producing his tax returns for the previous three years. Hence owners of property in France are well advised to register their tax residence regardless of their financial cicumstances.

Do you have a chemin rural near your property? Are you unsure about its legal status as a right of way? You're not alone. Because surprisingly, unless the right is acknowledged by an arrêté de reconnaissance under the law of 20 August 1881, there are no rules in the civil code to determine whether there are any public rights over a chemin rural. If any party is prevented from exercising a right to pass and repass, then he can refer the matter to the court who must adjudicate in each instance on the public rights. But the mere fact that a road or track is described on a plan as a chemin rural does not of itself prove a right of way. Quite often the users of a chemin live in an adjacent house, but this does not constitute a use by the public. So if you have a chemin rural nearby and you fear for its future, organize and formally record its use by a large group of your friends who live locally and who are exercising a right of way to their houses. (Cour de cassation, 3e Chambre civ., 23 février 1994).

I have just bought a house and discovered a few months later that there are two easements over the property. One relating to a road improvement scheme, the other a right of drainage in favour of my neighbour. I was not told of this either by the seller or the notary. Who is responsible?

As a general rule where there has been an omission by the seller, that has not been picked up by the notary during the conveyancing, it is the notary or his insurers who takes responsibility for any claims. The deed of easement for the right of drainage would have required a notarized deed which would have been registered at the Land Registry and would have been disclosed on the notary's search. Similarly the road improvement scheme would have been disclosed on the notary's local search. In both cases the notary had a duty to include such matters in the deed of sale and to ensure the buyers understood them on the signature of the deed.

The Court of Appeal in Toulouse recently held (2004) that a notary must explain to a buyer the obligations of a purchase in a housing scheme (Lotissement). These are covenants between the owners e.g. not to build above a certain height.

A notary who receives a sale is required, to ensure the efficiency of his deed, to verify the title to the property, the existence of any financial charges and to confirm any declarations by the seller relating to legal encumbrances such as easements of rights of way.

Under article 1382 of the Civil Code, for any person, including a notary, to incur liability against another, that person must have committed a fault which has caused prejudice to another and there is a causal link between the two.

It is not uncommon for rural property in France to be encumbered with a road improvement charge(un alignement sur le bâtiment en bordure de la voie communal). This is a matter disclosed on the local search which indicates that part of the property may be claimed by the commune to improve an adjacent road. However such schemes are often left in abeyance for many years which leaves the owner in some uncertainty as to what to do with that part of the property.

A road improvement charge is merely a declaration that technically the limits of the public highway include the private part of the property. It has no other legal object other to determine the existing public area. Usually the charge covers part of the front garden but occasionally it can cover a building which is adjacent to the road and would therefore be subject to demolition. The owner would have a right to compensation which would be settled either by consent or by official adjudication. However the owner will not receive compensation for substantial improvements made after the imposition of the charge. This may leave the owner in some difficulty if the property is going to ruin, adversely affecting the remainder of the property.

According to case law, substantial improvements include structural repairs e.g. the rebuilding of any wall situated within the area of charge, but not repairs to the roof and sanitary systems. The owner does not require consent to non-structural works carried out within the building, but he would be advised to obtain consent to anything else.

As the owner would qualify for compensation, the existence of such a charge would not constitute a blight on the purchase so the buyer would be bound to proceed unless there was a specific conditional clause in his favour giving him a discretion.

My father bought a house with his mistress. The notarial records show that my father provided 75% of the purchase price with the rest coming from a joint mortgage. Yet the deed of title states the parties were joint owners in equal shares. How can this be?

The declaration in the deed of sale that the parties are joint owners in equal shares is not a definitive legal statement. Rather it is an indication that has been included often at the request of the parties and subsequently signed by them. The statement can be rebutted by producing evidence to the court that the intention of the parties was other then this, however it is highly likely that the co-owner will argue that, even if there was a disparity in the purchase price, it was in effect a gift freely made as evidenced by the deed of sale and signed by the parties.

I bought a house a year ago in the centre of the town. I have now been advised that the commune require the house to extend the parking for the school next door. Will I receive compensation for the improvements made by me over the last year and why didn't the commune pre-empt the sale at the time of my purchase this saving me all this time and trouble?

It is rare for the commune authorities to start an expropriation process because it requires a public enquiry and is expensive and protracted. Usually they would wait until the property comes on the market and preempt the sale. It is surprising that this process has arisen in the year since you purchased the house and suggests an error somewhere, e.g. the notary forgot to advise them of the sale. It would be advisable to check this as the seller or his agent may have been advised of the proposal in which case they might be liable to pay you compensation for failing to disclose this. In any event, under the expropriation rules, you should be indemnified against all your costs and expenses.

A marchand des biens is a person who buys and sells property as a living, whether it is for restoration and resale or simply buying and selling. By law such a person should register at the registre de commerce and with the revenue office as soon as he has dealt in more than one property per year. There is no professional qualification to being a marchand. Although they are usually drawn from the estate agency profession.

There are two kinds of insurance for work on a house. The civil liability insurance to cover the workmanship and the ten year guarantee work done usually to the structure of the house. An individual who builds his own house is required to obtain this insurance to cover any building problems arising within ten years. He will be asked to produce details of this insurance if he sells the house within the ten year period. If he fails to do this and faults arise, he will be personally liable to the buyer but not subject to any criminal sanction. (Article L. 243-3 du Code des assurances).

A significant part of the conveyancing process for the sale of a property in France is subject to consumer protection legislation. A buyer has the right to retract from the purchase within seven days of receiving a copy of the signed contract. A sale contract must also include a clause relating to the buyer's right to obtain a mortgage.

With regard to the retraction right, the buyer must receive the signed contract from the agent or the notary by recorded delivery (and not be handed a copy in the agent's office - there must be a paper trail). The seven days runs from the day after receipt and if the final day expires on a Saturday, Sunday or Bank Holiday then the period is extended by an extra day. To exercise the right to retract, a letter in the required form must be posted no later than midnight on the final day.

With regard to the right to a mortgage, a conditional clause giving a buyer a right to obtain a mortgage is implied into every contract of sale of property and the seller is entitled to have full details included in the pre-contract. Should the buyer not require mortgage finance, he must make a declaration in the pre-contract waiving this right.

A French property sale contract will include a completion date; however it is important to realize that this date is not prescriptive as it is under the English system. If either buyer or seller declines to complete the sale by the contractual date, its passing gives them the right to serve notice to complete on the other failing which the contract will become null and void and the legal remedies will arise.

You would not normally be entitled to any compensation for any delayed completion unless you could prove that the delay was the fault of the other party or the notary and that you had suffered some loss as a direct result of the delay.

In the event of any contractual dispute relating to the sale of real property, the litigation will be referred to the court with jurisdiction over the property which will usually be the TGI in the nearest large town. Any process will require the attendance of an avocat and any litigant who instructs an avocat outside of the local bar will have two sets of legal fees. One for his avocat "postulant" and a second for the avocat "plaidant" local to the property who will conduct the hearing before the court. This is often not as bad as it appears because in essence the plaidant is acting as the agent of the postulant and saving him the time and trouble of travelling to the local court. The plaidant also acts on a reduced fee scale and hence the legal fees overall should not be excessive. It is advisable however to use a local avocat wherever possible.

What happens under International law when, say, a British couple has moved to France and decide to get divorced?

A divorce process can be conducted either within the country of their nationality or within the country where the spouses are habitually resident. However it is advisable for the parties to agree on one country or another as the court will not tolerate a duplication of the process and the parties will be ordered to pursue a process in one country (usually the country of the defendant).

Say you and a friend have a renovation property in France with mortgage finance and your friend who wants to opt out of the project. You want to buy him out. What should you do?

If the property has been purchased with a mortgage en indivision, the notary must execute an "acte de partage" under which the equity in the property will be transferred to you together with any equality payment equal to the value of the half share.

Say you have bought a house in France and your neighbour says that he objects to the windows which overlooks his court yard and he wants you to block them up or keep a curtain drawn? As far as you are aware, the windows have been there for many years and you are not aware of any previous complaint. What should you do?

This is an easement which is continuous and apparent. So first you should check your deed of title (ancien acte de vente) which may refer to the easement. If there is no evidence of any deed and you can prove (by contacting the previous owner) that the window has been there for over thirty years, you may be able to rely on the 30 year rule under article 690 of the Civil Code whereby the right arises under long user without objection or payment. Alternatively article 692 may assist whereby the easement has arisen by the division of a property (destination du père de famille).

Say you found a property for sale in France and made an agreement in principal to buy the house directly with the owner. It then transpired that the property was for sale with an estate agency who said they also had a buyer at the same price. Can the owner deal with you or must he deal with the buyer from the agency?

If the agency was not told about the direct buyer and had found a buyer within the terms of their mandate of sale, then the seller risks having to pay an agency commission if he chooses to sell elsewhere. As with all French contracts the parties must act in good faith which, in this case, means the seller must keep his estate agent informed of any private interest.

You have been living in France in a property which was your principal residence for many years and you decided to move back to the U.K. to live in rented accommodation. Would you lose the CGT relief in France?

The French tax authorities will not grant the principal residence relief for Capital Gains Tax unless the property was the principal residence at the moment of sale. However there is an exoneration for owners who move into temporary accommodation prior to the sale. In this case provided the sale takes place within one year of the property being vacated and the owner has acted in good faith e.g. instructed an estate agent etc. The essential point to remember is that the deed of sale must be signed within a year so you must count on the period between the signing of the precontract and completion (usually 2 - 3 months).

I bought a house in France with my girlfriend in our joint names en indivision. My girlfriend’s dad paid for the house. I spent a lot of time and money restoring the house. We have now fallen out and her dad threatens to instruct lawyers to remove me from the title. Can he do this?

French law is a fierce defender of property rights. If the property was purchased in your joint names, (with a declaration of equal shares in the purchase deed), you are deemed to be the absolute owner of one half of the property. This is regardless of the fact that the purchase money was apparently provided by a third party. The French courts have repeatedly decided that the declaration of equity ownership in the deed of title must be respected. Why? Because it appears in a document freely agreed and signed by both purchasers. Some courts have found an exception to this rule where joint owners are married and but generally where there is evidence that one party has paid more than the other, the courts have repeatedly held that the ownership shares are still equal. The more generous owner has simply made an indirect gift to the other prior to the purchase.

Your girlfriend’s Dad can still apply to the court to try and prove that he provided the purchase money and that it was his intention to gift his daughter (and not you). If he succeeds, the court may decide to amend the declaration of equal ownership. But this is by no means a formality and the court will want to know why this was not reflected in the purchase deed. Without written proof and a very good explanation, the court may rule against your girl-friend’s dad and ask him to pay all the legal costs.

Provided you have acted in good faith throughout, without fraud or misrepresentation, the court is likely to be sympathetic to you.

With regard to removing you from the title, this is even more difficult for him to do. The court may decide to divide the property in two if this was practicable, but that would be it. As a general rule, your rights as a joint owner must be respected and if you prefer not to sign a deed of sale (i.e. surrender your share of the house to your girl-friend) then you cannot be forced to do so by your co-owner unless there is a prejudice arising from the joint ownership e.g. unpaid succession taxes.

How can one access the French land registry to obtain details of the ownership of a property?

The French land registry is a public service with regional offices responsible for the various parts of the department. For reasons of security, it is not possible to inspect the documents in the Land Registry in person; rather there is a system of requisitions for the various parts of the register. There is also an internet site to obtain the application forms. (http://www.minefi.gouv.fr).

The big difference between the British and the French registration sytem is the ease of access. In the U.K., anybody can obtain details of a property (including horror of horrors details of the mortgagee) for a small fee. In France, you can only do this provided you have certain information about the property and the owners e.g. the full names and civil status details of the owner (date and place of birth etc). and the name of any joint-owner. To obtain details of a property, you will need the name of the commune, the cadastral registration number and the address of the property. Similarly for a deed of sale, you will need the description of the deed, its date and its volume number.

Many years ago, I sold a house in France and the notary retained some money on my account to deal with the conveyancing costs of removing a mortgage. He has finally returned me a cheque for 1,200 euros which of course could have been earning interest elsewhere. Can I claim this interest from the notary as a public officer?

Under the provisions of the decree of 19 December 1945, any funds received by a notary which are likely to be retained for more than three months must be placed on a designated interest bearing account and the interest (at 0.25%) must be accounted to the client on the closure of the account.

My buyer has pulled out of the purchase of my house and forfeited the 10% deposit and the notary has deducted the legal costs even though the sale did not complete. Can he do this?

The notary has the right to charge for legal fees and disbursements in the event of an abortive sale provided he has previously advised you of the costs and has your written authority to make a charge under Article 4 of the Notarial tariff (décret n° 78-262 du 8 mars 1978 modifié). This authority usually appears in the precontract.

We have purchased a property in France to develop into gites. However the neighbour, who shares a right of way to the property, has told us that he will oppose our planning application because it will disturb the tranquility of the area. Has he the right to do this?

Under French law you would have the right to make any changes you wish to the property provided you obtain a planning certificate under the plan local d'urbanisme (PLU). Your neighbour will have no right to prevent the development unless he can show that the gite conversion would create an exceptional neighbour disturbance (trouble anormal de voisinage), which is probably unlikely with seasonal family lettings. You must take care however with the right of way because the original deed of easement may specifically exclude any additional user by the occupiers of the gites. You must read the terms of the original deed before proceeding further.

Say you are buying a new holiday apartment on plan. The developer has summoned you to accept delivery however it is clear that neither the apartment nor the common parts (the swimming pool) have been finished. What are your rights?

Your rights depend upon the seriousness of the defects. If the problems go to the root of the reservation contract e.g. a wall has been built in the wrong place, then you may decline to accept delivery entirely and pay any further money (usually the final stage payment of 5%) and insist that the problems are remedied before proceeding further. The buyer would not have the right to the keys.

If the problems are not of a substantial nature but nevertheless constitute a breach by the developer of his obligations under the contract e.g. a failure to install a cooker, then the buyer must accept delivery of the unit but can consign the final 5% payment with an appointed third party (usually the supervising notary) for him to retain until the defect is corrected.

If the problems are of a snagging nature e.g. ill-fitting doors, then the buyer must accept delivery of the unit and draw up a list of the particular matters for the develop to deal with in due course.

The common parts such as the swimming pool are subject to separate delivery process where the same principles apply.

Say you are proposing to build a house in France. The seller of a building plot is offering the land with the benefit of an outline planning certificate to be obtained by the notary after the signing of the precontract. Will this protect a purchaser or should he make the contract conditional on a full planning permission?

There are two kinds of planning certificates. First, the general certificate which gives you merely information about the planning status of the land and is effectively for information purposes only. Secondly the outline planning certificate "C.U. pré-opérationnel' which advises whether a specific operation is feasible on the land concerned. This second certificate requires a plan and a short note of the proposed development indicating the proposed user and the habitable space. The certificate may be returned with conditions attached e.g. that the consent of other authorities is required e.g. the listed buildings department. Provided a planning permission is lodged within one year of the certificate, the permission cannot be refused on any of the grounds mentioned in the certificate.

The point of the outline planning certificate is to give land owners an indication of the development potential without having to suffer the expense of a full planning application which is a lengthy and expensive process. However, there are relevant matters which are not referred to in the outline planning certificate, e.g. style of building, position on the site etc which you can only cover by making the purchase conditional on planning permission. You should also take care to ensure the development potential in the area (COS) will accommodate the size of house (SHON) that you are proposing.

My buyers have decided to pull out of the purchase of my house and surrender the deposit. Can they do this without my consent? What if I refuse?

A buyer cannot withdraw from a purchase other than as provided for by law or in the contract. So if the buyer is not relying on the conditional clauses or the right of retraction, then he will be liable to the penalties provided for in the contract, unless he has reached an agreement with the seller. Usually the buyer will offer the contract deposit as damages to the seller and both parties then agree to dissolve the contract. However the seller does not have to agree to this and may require the buyer to complete the sale by the date provided for in the contract.

We have a field next to our house in France which we have owned en indivision with another family however they have had nothing to do with it for over thirty years. We pay the property taxes and have maintained the land. Can we claim sole legal title to the land?

To claim title in France by prescription, you must be in public possession of the land, without objection or interruption or paying rent for a period of 30 years.

The mere fact of paying the property taxes does not grant any such right. Possession in common with others cannot satisfy the test as the joint owners have the legal right to occupy the property in any event. However if the joint owners can show that the rights of the co-owners have been entirely extinguished, e.g. by letting the property, the prescriptive rights may arise.

I have agreed to buy a house which is about eleven years old and has no planning permission or compliance certificate. The seller and his notary are not prepared to provide me with the missing documents. Shouldn't they do this by law?

There is no legal duty on the owner of a house to produce these planning documents. A buyer must be aware of the following risks of purchasing such a property being:-

• (a) Within three years the authorities may levy a fine and/order the demolition of the property.
• (b) Within ten years the owner may be subject to a claim by any third party, such as a neighbour, who has suffered a loss from the unlawful construction.
• (c) After ten years, there remains the risk that the planning authorities will refuse to grant any further consents to improve the house until the original construction has been legalized.

I have just sold an apartment which I bought on plan. I have discovered that that developer's mortgage is still on my title and that I have had to pay my notary to remove this charge?

Unfortunately, you have a duty to deliver your property to your buyer free of mortgage and this cost must be incurred and currently this must be done by a notary. The Attali Commission is likely to recommend that, in future, private owners can deal with this at the Land Registry themselves without using a notary by simply producing a letter from the bank to say the mortgage has been discharged.

My father has just died after living in France for many years. He had a house in the U.K. Will this be subject to succession tax in France?

Provided your father was fiscally domiciled in France the whole of his world wide estate will be subject to French succession tax. But for property situated abroad, the notary would usually accept the valuations of the successors in title.