This month our article is quite different. Instead of treating a specific area of Notarial law, we have provided our readers with a practical case.
Welcome to our March issue. The past few weeks have been rich in reflections on Brexit and it does not make our life easier when we have to advise our clients on international matters. International private law is part of our work on a daily basis.
Each year, notaries have their conference on a different topic. It is always an occasion for thousands of notaries or lawyers to meet and share their experiences. Each conference usually has four workshops orchestrated by two notaries. This year is special for two reasons: the first reason is that it is going to take place in Brussels; the second is linked to the place, because the topic is International Private Law. The four workshops will each be apprehending a different law: drafting contracts, inheriting in an international context, buying and finance.
We have some interesting court cases recently decided that will impact our work and advice to clients
1 CONTRACT LAW
COOLING OFF PERIOD
A recent decision was rendered regarding the cooling off period and the potential responsibility of an estate agent who notified the contract to the purchasers, a couple in this case. On 21 March 2019, the court highlighted that it is important that each purchaser receives a copy of the contract, but also to verify the identity of the person who signs the notification. If one spouse signs the notification on behalf of his/her husband/wife, the said spouse must have a valid mandate.
A couple purchased a property in 2008 and a diagnostic carried out at the time concluded that there was no asbestos. Later on, the couple wanted to carry out some work on the property and got a quote from a professional, who alerted them of the presence of asbestos in the roof.
The couple tried to engage the responsibility of the vendor and the expert who did the asbestos report. The Court of Appeal, on 19 February 2019, exempted the vendor and expert of any responsibility on the ground that the vendor relied on the diagnostic that was attached to the final deed. The expert, at the time of the purchase, did not have any obligation to carry out a search on the roof as per the law.
A very interesting case was rendered by the court on 7 March 2019. After signing a compromis de vente, a building was vandalised and the vendor refused to complete. The purchaser tried to pursue the sale and asked to be subrogated in the vendor's rights over the building insurance to make the insurance claim. The high court approved the purchaser's request and considered that the vendor's rights over the policy were transferred to the purchaser so that he could claim the
insurance indemnity. The court also pointed out that only a clause in the compromis could have prevented the insurance being transferred to the purchaser before completion.
OFF-PLAN PROPERTY AND RESERVATION CONTRACT
A reservation contract is optional when you purchase a property off-plan. If the reservation contract is found to be void, it will not impact the validity
of the authentic deed. That is the conclusion of the court in a recent decision dated 21 March 2019. However, it is important to remember that the nullity of
the reservation contract will oblige the notary to resend a cooling off period to the purchasers.
2 ESTATE PLANNING: SUCCESSION
VALIDITY OF A WILL
A notary met his client in a brasserie to sign his authentic will in the presence of his advocate and another person. Notaries are requested to sign their deeds at their office and it is only in exceptional circumstances that they can meet outside their offices. In this case, the will reduced the children's reserve. One
of them started proceedings before the court to re-establish his reserve and obtain his share. He based his argument on the facts that his father did not meet the notary or sign the authentic will at the notary’s office, and the notary did not request a certificate from a doctor to confirm the capacity of his father to sign. The court did not accept any of the son's arguments and confirmed the validity of the will, despite it being signed in a public place.
A very interesting case arose in a local newspaper recently. A French citizen sold his business and moved to Belgium for tax purposes to avoid payment of CGT
on the sale of his business. However, he continued to return to Paris four days a week. He paid for his travel in cash to avoid any trace of his commuting
to Paris. The French tax administration had some doubts about his real intention to exit France and managed to get his rewards points from the SNCF showing his travel. The French tax administration took real pleasure in notifying the person of the tax owed, together with interest and penalties.
When you decide to move from one country to another, make sure that you are actually moving. HMRC tends to have some similitude with the French tax administration to prove that a British citizen may have kept his domicile in England for tax purposes.
The OECD recently rated seven jurisdictions as overall ‘largely compliant’ with the international standard of transparency and exchange of information on
request: Hong Kong (China), Liechtenstein, Luxembourg, the Netherlands, North Macedonia, Spain and the Turks and Caicos Islands. These jurisdictions have
demonstrated their progress on the deficiencies identified in the first round of reviews, including improving access to information, developing broader EOI
agreement networks and monitoring the handling of increasing incoming EOI requests.
LEGALISATION OF PUBLIC DOCUMENT
On 16 February 2019, Regulation (EU) 2016/1191 of the European Parliament and of the Council of 6 July 2016 on promoting the free movement of citizens by
simplifying the requirements for presenting certain public documents in the European Union and amending Regulation (EU) No 1024/2012 entered into force.
This regulation removes all legalisation and apostille for certain public documents, and eliminates the need for translation with multilingual forms. The aim is to simplify the formalities to provide certified copies and translations of different public documents, such as administrative documents, notarial acts,
judgments and consular documents in certain areas.
The documents concerned are those relating to:
- marriage,including capacity to marry and marital status
- divorce,legal separation or marriage annulment
- registered partnership, including capacity to enter into a registered partnership and registered partnership status
- dissolution of a registered partnership, legal separation or annulment of a registered partnership
- parenthood, including adoption
- domicile and/or residence
- absence of a criminal record
- the right to vote and stand as a candidate in municipal elections and elections to the European Parliament
The regulation covers only the authenticity of the public document and not the recognition of its contents or effects.
RESIDENCY AND SUCCESSION LAW
We have been waiting for nearly two years for the first hearing on Johnny Hallyday's succession battle between the surviving spouse and his children. On
Friday 29 March, the Court of Nanterre will review the case upon the parties conclusions regarding the settlement of the estate. The main point of argument since Johnny's death has been his residence, and which law should apply to the settlement of the estate. We hope to have a first element of response from the court towards the end of May 2019. No doubt the saga is far from being over!
The concept of tax residency links a person to a particular territory for the purpose of determining questions of law (including tax law) that applies to him. In practice, a person’s tax residency is not always obvious or easy to determine, despite its being a crucial element of his relationship with a particular legal system.
Two regulations dated 24th June2016 are complementing the inheritance regulations that came into force lastAugust 2015. After inheritance, so these are matrimonial and registeredpartnerships which are subject to European regulation. 19 members states,including France, wanted to establish enhanced cooperation in these matters. The regulations will come into force on the 29th January 2019.
I often have clients asking how long does a property transaction take to be completed in France. The average timescale is between 2 to 3 months but often depends on the particularities of each transaction. Indeed, some of you may purchase a property without any renovation work, ready to move in, others may want to renovate or extend it and would require planning permission before signing, a mortgage may be required, a division of lands, or the property/land is occupied.
As a Lawyer, I meet people every day who have lost a relative or become concerned by their future and the possibility of losing the capacity to deal with their own affairs. In England it is possible to anticipate and curb a problem by signing a Lasting Power of Attorney. Alternatively, we may create a trust to administrate those assets posthumously. In France,neither of these forms existed until two recent Laws were passed, which introduced a form of Power of Attorney (mandate) with the purpose of providing the flexibility to organise and administrate a person’s assets or estate.
The Notaire who is called upon to settle an international succession is often confronted with a certain number of questions, one of them being the validity of a Will left by the deceased. Making a Will is the most common way for a person to settle his estate and transfer his assets to his heirs. For instance in of common Law Countries (United Kingdom, Unites States…) it is most of a time a testamentary succession.
Notaires in France are Public Officials appointed by the Ministry of Justice and have their own system and practice which is distinctive from the other profession of Avocat or even Solicitors.They are empowered to place the French State Seal on the deeds that they prepare. These deeds fall into a category of public document and are difficult to challenge. We have calls every day from client enquiring what the Notaire's fees are. Notaires always provide clients with a figure to complete the transaction butrarely break it down unless specifically requested.
With the recent European Succession law that came into force on 17th August 2015, most of British nationals wonder whether the use of a SCI to hold a property in France still has a benefit. Indeed, the new succession law permits a British national to choose English law as the law applicable to his estate and overcome the compulsory French forced heirship.
The system of buying a property in France is not so different from the one in the UK. Balancing the two systems, none is better or worse than the other but they both have their particularities. Whereas exchange takes place after the formalities have been carried out in England, the French exchange (signing of initial contract) takes place prior to carrying out the searches. The purpose of this article is to give you an indication of the process of purchasing a property in France. In any case it will replace any advice that you would seek through a professional.
In December, France lost one of its greatest singers and idols of several generations, Johnny Hallyday. The sadness of his death has now been shadowed by a media unpacking around his estate and his Will. Johnny Hallyday had two children from previous unions and adopted two children with his surviving spouse, Laeticia - a situation that is not unusual nowadays. According to his Will, he designated Californian law as the law applicable to his succession and bequeathed all his estate to his wife, to the detriment of his two children from previous unions.
Most of European countries have ratified the European succession Law and Monaco has now decided to create its own international rules to match the rest of Europe. As a result civil law will no longer be an issue for an English national as he will always be able to apply English law to his assets wherever he is located.