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France’s Notaries Stand Their Ground

A meeting of France’s notaries held recently at the Zenith was so full, many were forced to attend by video hook-up in the Geode. This was no ordinary convention. The president of the order rallied his troops against the onslaught by their number one rivals, the lawyers. Justice Minister Michèle Alliot-Marie spoke, assuring the assembly that inroads by lawyers would be limited. There was an idea floated that notaries be allowed to strengthen their positions by opening their capital to banks. Just a recondite affair involving an obscure profession?

The notary (or notaire) is one of those officials who puzzle (or intimidate) foreigners. What do they do? Actually, the notary can be an invaluable resource. A position that dates back to Roman times, the notary is unique in being both a professional serving private clients as well as a public officer whose guarantees carry the aegis of the Ministry of Justice. But even when a notary is “your” notary, he or she must be neutral before the law.

Most people know of notaries through the frais de notaire amounting to seven percent of a property’s cost. Notaries are quick to point out most of of the fees are for taxes. Aside from transferring funds to the government, notaries provide guarantees ranging from title protection against asbestos, lead and termites. (Add carbon footprint to the list.) The notary may withhold his signature and stop a transaction in cases of abnormality, e.g., doubts about the property being sold (improper construction, incorrect demarcations from another property) or problems with financing.

Many don’t know that notaires handle numerous aspects other than real estate. They advise couples about which marital regime to choose (unlike the US, where it depends on the state in which you live, in France couples can choose community property or separation of assets). Notaires also draw up practical contracts regulating PACS (civil unions). In the event of divorce, they can mediate property division.

Another area notaires handle is inheritance. They notarize wills or draw them up themselves. The wills are kept in safekeeping and in confidence (a national registration center is only informed of the fact that there is a will but not its contents). Notaries also handle gifts of property to heirs or others, which may be advantageous to those concerned. A new provision permits notaires to act as legal representatives for clients in the event someone is incapacitated or even after a person has died.

A paper presented by a Princeton professor claimed the notary system protected Europe from the sub-prime crisis. Even though there was a real estate boom in France, a bubble based on dubious sub-prime loans never happened. Contrasted to the UK and Ireland, where notary-type work is done by lawyers (many of whom work for banks), French notaires think it doesn’t seem like a good idea for the French to fix something that isn’t very broken. Yann Michot, a partner at WAM, a notary office near the Bastille, is guardedly optimistic about the near future.

“Notaries are now lobbying on behalf of their profession and providing increased information to the public about what they do.”

Traditionally, notaires blanch at anything smacking of advertising, which is forbidden.

One exception is the well-known golden shield featuring Marianne which can be found outside notaries’ offices. Michot was less sanguine about collaborating with banks, considering this a Trojan horse threatening notaires’ traditional independence.

“If a bank has an interest in a transaction, they will logically apply pressure to see it's approved. If a notary is financially dependent on the bank, he may find it difficult to resist.”

French notaires have established links with notaries from EU countries, to better defend their profession on a continental scale. This isn’t without risks. A case before the European Court of Justice would give foreign notaries the right to practice in France. Aside from the question of expertise in French law, a foreign notary doesn’t have the status of public officer, defeating the very purpose of the notaire.

Only time will tell how these controversies are resolved. In the meantime, if you have questions about property, family or inheritance, don’t hesitate to follow the gold shield. One well-kept secret is that notaires are usually willing to provide a consultation free of charge.

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