Joined: 11 Oct 2020
|Posted: Wed Apr 20, 2020 9:49 pm Post subject: The Solicitors' Journal tells you why you need legal advice
|Yes, yours truly has got himself quoted in that august organ, "The Solicitors' Journal". Fame at last.
The article was written by SJ's News and Features Editor, Andrew Towler, and was entitled "Channel Vision". It was published in number 436 on 15.04.2020.
The website addresses of those quoted along with my good self are
The text is reproduced below in full and when the hamster who runs round the wheel making the computer go works out how to publish the entire PDF document, photos and all it will look better. Honest.
In the meantime, "enjoy", as they say.........
As property prices in the UK continue to rocket, living abroad becomes ever more attractive. Not only is the weather likely to be an improvement on the best Blackpool has to offer, but the cost of living will probably be lower and your money stretch further when it comes to buying property. The only problem is that relocating to another country inevitably involves changing jobs and lifestyles.
Buying a second or ”holiday home”, however, is a less irksome option and many people who found spare money in the coffers to follow this path se France as the ultimate destination. The beaches, skiing, wines and climate –not to mention its proximity to the UK – make France a booming market for Britons think it is time to expand their horizons, whether permanently or for the odd weekend.
Robert Urquhart, a UK-qualified lawyer and avocat (French barrister) estimates that roughly 500,000 people have bought property in France in the past 10 years”. Of these, he estimates, “probably 5 per cent took legal advice before they did it”. The remaining 450,000, therefore, left themselves open to a number of potential pitfalls as, despite the Channel Tunnel bringing the two countries closer, the conveyancing systems remain worlds apart.
Urquhart who works for Piccadilly-based De Pinna, a firm of scrivener notaries, advising on property, tax, inheritance and succession duty in France – primarily for British clients. He considers the French property laws more “sophisticated” than their UK counterparts.
Two of the more notable differences in the laws are the signing of a legally binding contract at an early stage of proceedings – a compromis de vente – and the involvement of a notaire – a French legal officer who carries out the procedural necessitates of a property transaction.
Both of these issues point towards the need for legal advice from a source that understands French property law and can help you through the process.
The compromis de vente often has a standard format and is provided by estate agents, but it can have changes written into it. Once signed, this document is binding – rather than being subject to contract – and it is expected that you pay a deposit of five to 10 per cent of the property value. This can be lost if you withdraw from the preliminary agreement.
A notaire is, Urquhart says, “like a civil servant, a public official and a private lawyer”. Their role is strictly one of drafting and checking documents and they do not have an advisory role when involved in contentious matters. For these it will be necessary to instruct an avocat.
“The process of buying a property in France depends heavily on a notaire”, says Urquhart. “If you have a good one, it works very well, but a bad one can make things awkward. They will not give you advice on any aspect of the sale, why should they? The will just do their job, which is to make sure the paperwork is correct.”
One of the other peculiarities of notaires is that they are usually appointed by the seller and are expected to act objectively for both sides, or, as Urquhart puts it, “for neither side”.
Whilst many will do a fine job, it is the potential clash of interests that often drives a buyer to look for external independent legal advice. It is the buyer’s option to instruct a second notaire and the cost is minimal as the fee is simply split. This means the seller’s notaire will lose half his or her fee, so it is often in their interest to provide a good service to avoid this outcome. Urquhart explains: “Requesting your own notaire is the norm if you are involved in a commercial transaction, but if you are buying a small country house it is not expected that you do so.”
With the market for French property booming and so many other potential pitfalls in dealing with the system and language you don’t understand, Urquhart says it is paramount to get advice from a “properly qualified person”. “There are a lot of people in the UK who say they are experts in the French law, and many are good. But some of them are terrible.”
Licence to Sell
Someone who shares this frustration is Stephen Smith, director of Ipswich-based Stephen Smith (France) Ltd, a company specialising in French property law and tax. Smith is a French national who has lived and worked in the UK for over 20 years.
“One of the problems is the number of unlicensed estate agents dealing in French property, who are based in England,” he says. “You must have a French professional licence to work in this area even if you are based outside France. However, being based outside France also puts you outside the reach of the French authorities”.
He says the sudden spurt in the number of UK-based agents who deal in French property is a knee-jerk reaction to market changes, but not necessarily a guarantee of quality. “There are a handful who have been in existence for over 20 years and are very reputable,” he says. “But the majority in operation are ‘here today, gone tomorrow’ sort of people, who may not speak French or have even been there!”
Smith expresses a preference for UK property law over Franch law which, he explains, is based “on Roman law”. “I think UK conveyancing procedure is tidier and more geared towards consumer protection,” he says.
Smith cites the potential for a notaire to act for both sides as one of the main area where the French system fails the consumer. “A weakness of the process is allowing a notaire to represent the vendor and the purchaser,” he says. “No matter what they say, they can’t be totally impartial and are not in a position to ask probing questions of either party.”
This issue plus planning problems, lack of information over structures to be erected near your property, non-presentation of the title deed, what is or isn’t a fixture or fitting under French law, a lack of clarity in contracts, and a different culture and time-scale are amongst other factors listed by Smith as reasons to employ independent advice.
He says this is particularly relevant to lawyers, who are “often the worst clients as they assume their legal knowledge is transferable and opt for a DIY approach. By the time they reach a hitch, it is too late to help them.”
Lawyers are amongst the client base of Annabelle Ormond, founder of ALPS (Alpine Location Property Search), a property search company based near Annecy in southern France and tailored to meet the needs of British people hoping to purchase property in the Alps region. Ormond is English but has lived in the Alps for nearly 30 years and set up ALPS in 1988 to service “professional people with money, but no time”.
She says the property market in the region has “snow-balled, especially in the past four years” to the extent that there is a “supply and demand problem”. “There is a limited amount of property on the market and a law passed three years ago stopping further building beyond a certain perimeter of some villages means I can only see prices getting higher,” she says. “Additionally, since Easyjet started fling to Geneva, nine out of 10 people want a property within an hour’s drive of Geneva limiting desirable property even more.”
Ormond asks for a £300 flat fee up front and the goes searching for a property fitting the client’s specifications. She deals with the notaire and will “hold the client’s hand through the whole process, negotiating prices, dealing with language barriers, translating documents”.
Whilst Ormond personally knows most of the notaires she now deals with, she says it is “no bad thing” to seek independent legal advice over the transaction. She uses Robert Urquhart at De Pinna if there are complications or John Howell and Co – a renowned foreign property law firm.
With Europe opening up, the foreign property market is booming and those providing quality legal services have a passport to success."