Bright Avocats regularly contribute articles to media spécialising in English-speakers with projects in France.
We are also often called upon to unravel legal problems that subscribers write in about.
The information in these articles is provided for informational purposes and does not constitute legal, professional or financial advice.
The distinction barristers / solicitors does not exist in France. “Avocats” (lawyers) provide advocacy services before all Courts in France and are also in charge of drafting written pleadings. Avocats may also act as “conseils” or consultants, providing advice on such wide-ranging issues as the best way to limit tax liability or assisting a client purchasing real estate in France.
A distinction exists in France between the avocats and the “notaires” (notaries). The latter have a monopoly in certain areas, e.g. liquidation of assets after a divorce, devolution of estate upon death, etc. Whereas avocats form part of the “liberal professions”, the notaires have a ministerial charge which is often passed on from parents to children.
Other than for Crown Court criminal cases, litigation in France is almost exclusively based on written pleadings which are filed with the Court. The avocats provide oral explanations during the hearing.
It is extremely rare for witnesses to be convened and interviewed by the Courts. Most evidence is provided in written form.
To love and to cherish ’til we are parted by death
Imagine you are buying a house with the person you love, cherish and want to spend the rest of your life with, for better or for worse. For personal reasons if “death do you part”, your wish is that the house be left exclusively to your spouse/partner. Mutually in love, your cherished spouse/partner, has the same generous wishes for you.
Maybe you’ve had an irredeemable feud with your children, or maybe, simply, you just do not want the person with whom you shared your life with, to have to share the house after you die. Whatever your reasons, you need to know how the law can help you achieve your goal.
This is where the tontine clause comes into play.
THE TONTINE LEGAL TOOL
Notaries love it, notaries fear it too, but whatever their feelings may be, there is no denying that a tontine is a powerful legal tool.
But as with any power tool, the key to safety is to know how to handle it.
The principle behind the clause is simple: if there is a tontine in the purchase contract of a property, the surviving spouse/partner is retroactively considered as having been the sole owner since the day of the purchase.
This means that a property bought with a tontine clause falls outside the scope of the inheritance which presents a clear advantage for the surviving spouse/partner.
Unlike England and Wales, where there is no forced heirship, allowing people to freely leave their property to whomsoever they wish through a last will and testament; in France (like Scotland), a surviving spouse and children have a statutory claim to parts of the estate.
With this in mind, the legislator installed a failsafe to make sure that the tontine is not a disguised donation, purposefully made to deprive the protected inheritors of their rights on the property.
This is why there are two conditions to the validity of the tontine clause: first, both purchasers must have contributed financially towards the purchase and second, the tontine clause is a ‘bet’ on death; or a slightly macabre, blind, hedging bet if you prefer, not knowing who will pop off first.
This means that at the time of purchase, it has to be impossible to determine which owner will die first. Therefore, if there is a great age difference or one spouse is terminally ill, the tontine clause would not hold in court if the children/heirs disputed it.
And if there’s any doubt in the sincerity of the clause, they will dispute it. Nothing creates animosity with a step-family more effectively than depriving them of their inheritance.
You may have included a tontine clause in the purchase deed with the most virtuous and altruistic intentions, but if you do not comply with the two conditions, you will have to deal with the consequences.
Because there really are consequences for getting it wrong, and none should be taken lightly.
The first consequence is the potential dispute with the other inheritors and the possibility they have to petition the court to ask that the tontine clause be requalified as a disguised donation. This alone should set you up for a hellish and bitter relationship with them until the day you die – which is probably not in the spirit of what your spouse/partner wished for.
If their claim is successful, the surviving spouse/partner would be condemned to compensate them for the value of their share in the property which is under the tontine clause.
You have the house, but you may not have at your disposal the cash to compensate the other inheritors. Meaning you would then have to quickly sell the house to allow you to pay them their share, plus the legal interest that has multiplied.
The second and most important consequence you should be aware of is that a tontine clause is fundamentally different from a joint ownership (known in French as a “indivision”).
Provided that the tontine clause is valid, it is completely and utterly binding, in that unless both parties agree to remove it and liquidate the property by selling it or having one buy the other out, then you are bound to remain co-owners until one of you dies.
This is the reason why a tontine clause is particularly dangerous in a divorce, especially with a French divorce.
In France, there are two types of divorce: the mutual consent divorce and the litigation divorce.
When you have a mutual consent divorce, both spouses agree to all the various aspects of the divorce beforehand, including the fate of the house with a tontine. This means that you liquidate your assets (sell the house, buy the other out, share the furniture…) at the same time as you divorce.
Because the consent of both spouses to the future of the assets and the consequences of the divorce are a key element to a mutual consent divorce, the parties will have to mutually agreed to remove the tontine clause in order to sell or share the house and there should be no more difficulty.
However, when the spouses do not agree on the divorce, the procedure in France is that you only deal with the liquidation of assets once the divorce is finalised.
As you can easily imagine, after what could be years of fighting for the divorce, breaking the tontine which requires the cooperation of both ex-spouses can be quite tricky or even impossible to obtain.
The beauty and the curse of the tontine are that it is unbreakable unless both parties agree otherwise.
With an “indivision”, if one party wishes to terminate the joint ownership and the other party refuses to cooperate, one can always petition the court to request the termination of the joint ownership and the sale of the property at a legal auction.
Even if this process is not ideal because of the legal costs and the fact that a lot of properties sell for less at legal auctions than they would on the market, it still offers you the possibility to regain your freedom.
This is not the case with the tontine: if the other owner refuses to sell the property or buy you out, there is no legal recourse for you to terminate it, or pressure the other to terminate the tontine as you do with a joint ownership.
With a joint ownership, the person who has sole use of the property owes the other a form of rent. Moreover, if the situation has lasted for years, this rent is owed for the five years until the property is finally sold or shared. This cumulating rent can be a useful negotiating tool to speedup the end of an indivision but unfortunately, no such form of rent or possibility to force the termination with a court procedure exist for a tontine clause.
If you have a property with a tontine and the former spouse/partner refuses to end it, then the only thing you can do is wait for their death… or yours.
The tontine clause is a purely French construct, but international couples also need to be aware of its consequences.
For example, if you are British you may wish to have your divorce in the UK and have the UK judge rule on the attribution of the assets, with the main residence in the UK going to one spouse and the second home in France going to the other spouse to balance out the divorce.
But what happens if the spouse who has received the UK property does not cooperate to terminate the tontine on the French property? Or if the spouse who has been awarded the French property never starts the process in France to terminate the tontine and put the property in their sole name?
Would this nullify the divorce? Would the ex-spouse who has never received the cooperation of the other to terminate the tontine and fully receive the property be entitled to compensation?
Would their inheritors be entitled to compensation from the former ex-spouse because they were supposed to receive a property but did not because with the tontine still in place, the property belongs to the spouse who refused to cooperate to terminate it?
The third consequence of the tontine is the taxes associated with it.
When your spouse dies when are still married or you are under a civil partnership with a will, your partner is the inheritor of your share in the property. In these cases there will be not be an issue as there is no inheritance tax between spouses or civil partner.
In the case of a civil partnership, it is paramount that both partners make a will designating the surviving partner as the inheritor because in France, unlike in the UK, in the absence of a will, the partner has no right to the inheritance.
However if you have an unresolved tontine, are divorced and your ex-spouse dies you are fiscally considered as inheriting from a stranger even if the legal mechanism of the tontine means that you are considered the sole owner since the purchase.
From a practical perspective, this means that you will pay 60% inheritance tax on the share you will receive.
If this sounds cruelly unfair, and cripplingly costly; don’t worry, it gets worse.
Inheritance tax must be paid within six months of the death even if the property is not sold and even if there is not even cash in the inheritance to settle the tax. Moreover, if the tax is not paid, late payment interests are added to the money owed.
The tontine is a wonderful legal tool to protect your spouse or civil partner but this is the clause of the happy couple, the couple who will stay together until one dies.
If the tontine validity is ‘hedging a bet on death’, its benefit is a bet on peace of mind and the life you will have with the person you are buying the property with.
So, before you take a flutter and sign the tontine, ask yourself if the risks in the not-too-distant future may outweigh the gains.
We at BRIGHT AVOCATS have ample experience in the tontine, whether it is to advise you on the management of your assets and the organisation of your inheritance, or in case of litigation, properly advise you on its use or its unfortunate consequences.
The key to a smooth property transaction is the company you keep
Traditionally, when considering buying or selling real estate, you are surrounded by a real estate agent to find and advertise the property, and a notary for the conveyancing.
But did you know that hiring a lawyer to help you through the process can save you money, and more importantly, years of stress?
Property transactions in France are very different from the UK in terms of what the seller or buyer needs to do. Therefore, approaching the French process as you would in the UK can lead to many problems with serious economic consequences.
It’s said that the devil is in the detail, and this is especially true when selling property in France. A deed of sale and its annexes can contain hundreds of pages of information. For better or worse, under French law both parties are bound by the terms of the deed. But do you really know what the document and its annexes are all about? Do you know everything you need to declare or inquire about?
Unlike lawyers, notaries and estate agents do not handle litigation and therefore do not have the experience to adequately advise on the real implications of each clause.
Our professionnel calling means that when something goes wrong, we are hired by one of the parties to legally unravel the issue. This problem-solving role gives us a unique viewpoint; an advantage that you can hire as a buyer or a seller to avoid – rather than fix – contentious issues.
Hiring a lawyer who specialises in real estate transactions ensures that the terms of the contract are fully considered and understood, and that any information required to be disclosed is properly notified.
Any lawyer will tell you that it is best to spend time and money to get things right during the deal, rather than face the consequences later.
In fact, spending money on legal fees before a sale is nothing compared to what you would have to spend on litigation if things go wrong. Not only do you have to pay legal fees to defend your case, but you may also have to pay bailiffs’ and legal experts’ fees. If you lose the lawsuit, you will also pay compensation to the other party. Even if you win the case, courts will not always award the full cost of fixing the contentious issue, and never award the full amount of the legal fees you’ll have paid.
The intervention of a lawyer between the estate agent and the notaire can save you thousands of euros and years of litigation after the transaction.
As comical as it seems, I spend one huge dollop of my time rectifying expats’ scatological disputes. Leaky drains, overflowing cesspits, broken pipes…
Crap plumbing, though hardly glamorous, has become a recurrent theme in many of our legal cases; like a feebly flushing toilet the doo-doo dossiers defiantly pop-up again and again.
The problems, although astonishingly diverse, all stem from the false belief that one’s ownership and responsibility disappear along with the dirty business, as soon as it’s gone around the U-bend. The offending parcel sloshes away from the house but very often closer to the neighbours’. And this is where it kicks up a stink.
Because let’s be clear; the majority of poop problems are at first olfactive, and nauseatingly so. Nothing scuppers a balmy summer evening BBQ better than the tangy whiff of number two. Invisible and invasive, the eye-watering stench from a brimming septic tank cannot be ignored or escaped and will invariably put you off your chipolatas.
The attitude to human effluent disposal, in many parts of rural France has been ‘out of sight out of mind’, especially when upwind. Raw sewage still trickles into babbling brooks or ‘somewhere down the end of the field’. But even in the case of perfectly normed grey-water drainage, ruptures can occur during building work, and tree roots – in search of ’nutriment’ – are renown for bunging pipes.
Merde happens, deal with it
This unconscious invasion of airspace can drive people potty, and no matter how ‘cordiale’ the ‘entente’ with one’s neighbour, informing them that they’re stinking out your house with their excrement, is best approached with a mastery of diplomatic French.
The saving grace is that in practically every case the perpetrator of the inconvenience has done so by negligence – an involuntary accident, and in most cases your neighbour will remain your neighbour, so it’s also in their best interests to keep things cosy with you.
Buying a French house is obviously not as easy as buying a baguette, but there are those that treat it as lightly…
With frightening regularity, Bright Avocats deal with litigation involving property purchases because neither the vendor nor the purchaser was informed of the extent of their commitment when signing a compromis de vente or a promesse de vente.
Both of these documents are contracts, with carefully defined terms and conditions.
For example, when a buyer needs a loan, the maximum length and the monthly instalments that the buyer can ask for will be stipulated in the compromis or promesse. If the buyer then seeks a loan with different terms and the banks refuse them, then he will not be protected by the suspensive clause (of not being able to obtain finance) because by applying for a different loan than the one set out in the compromis or promesse, the buyer is in breach of contract.
We have also met cases where the vendor wanted to terminate the compromis or promesse because they had found a higher bidder or no longer wanted to sell; or indeed, cases where the buyer wanted to retract, but after the ten days’ cooling off period.
In the best-case scenarios, negotiation takes place over the fate of the deposit, to compensate the party who was not at the origin of the termination. However, in many cases, litigation is initiated, to either have the other party condemned for damages according to the penalty clause in the compromis or promesse, or even to force the sale upon the buyer or the vendor.
This is why it is paramount to understand that compromis and promesse are legally binding contracts and as such, they create obligations and rights. One of these obligations is similar to the UK contractual obligation to disclose any information pertaining to the property which may be key to the buyer’s consent to purchase.
A lot of litigation we face at the moment concerns cancellations of property sales because key information was not disclosed, such as the projected construction of a nearby wind farm, the absence of sufficient insulation, the septic tank which could not be moved due to public water pipes passing through the property, etc.
Litigation in property deals can be based on all manner of reasons, some justifiable, while others are unimaginable.
What it is certain though, is that litigation is an expensive and lengthy pain that you can do without. Which is why, we advise both buying and selling clients with our in-depth knowledge and experience. Because without it, your property deal’s toast!
Who keeps the money if the sale falls through?
When purchasing property in France, two contracts will be signed and upon the signature of the first, the purchaser will pay into a notary’s account a deposit which will either be called a “depot de garantie” if you signed a “compromis de vente” or an “indemnité d’immobilisation” if you signed a “promesse unilatérale de vente”.
This deposit, usually set between 5 and 10% of the total price of the property, is retained temporarily by the notary and used as a down payment. It means that you are serious about your intention to buy, blocks the sale and the seller withdraws the property from the market to any other potential buyers.
But what happens if the sale falls through after you have paid this money?
In theory, if the sale falls through because of the vendors, the money is returned to the purchaser, and if the sale falls through because of the purchaser, the money is given to the vendors to cover their prejudice of not being able to sell their property.
The deposit can be a considerable sum that neither the vendor nor the buyer would want to renounce. Both are keen to lay the blame with the other, and this is where one or both parties say ‘I need to call my lawyer’.
Bright Avocats have handled many disputes involving the “depot de garantie” or the “indemnité d’immobilisation”. The reasons vary greatly because in many cases, they derive from an interpretation of the facts and whether they can be construed as a fault on either side.
The basic premise of the deposit is crystal clear in French law:
French consumer law dictates that a purchaser can freely and without cause retract within 10 days of the signature of the “compromis de vente” or the “promesse unilatérale de vente”. This period allows buyers that have been too impulsive or pressured into buying a period to cool-off and think more rationally. If you are still within this 10 day “période de réflexion” from the signature of the “compromis de vente” or the “promesse unilatérale de vente”, and you officially cancel, the money will be returned to you, the purchaser, without question.
However, if the sale falls through after the 10 day reflexion period has passed, this is where many disputes arise, and as no two property purchases are the same there can be any number of reasons, some improbable… but almost all avoidable.
We once defended a purchaser who withdrew because they claimed there was a defect with the property which was only disclosed after the end of the 10 day reflexion period. The issue here was to analyse if this undisclosed information was really essential to the buyer when purchasing the property. Indeed under French law if the purchaser can demonstrate that had they known this information previously they would not have purchased, then this is grounds to cancel the purchase.
Another case was when the vendor claimed that the purchaser, whose loan application had been rejected, had not done his due diligence to obtain said loan so that the sale could not go through. The case was to demonstrate that everything was done properly and in due course to show that the purchaser acted in good faith, which is essential in any contract.
One other case Bright Avocats handled, was when the purchaser had obtained their planning permit but only after the deadline set in the “compromis de vente”. In the contract it did not stipulate that a broken deadline rendered the contract null and void, it did not matter if a condition was fulfilled a week after.
In practice, the notary will block the deposit money in an escrow account until they are presented either with an agreement between the parties or a judgment on the fate of this money.
Bright Avocats has successfully handled many cases involving deposits and other property sale litigation… but, we also assist when they wish to sell or purchase a property by going over the contract and explaining in detail what the parties will sign. Just like medicine: prevention is better than cure!
The financial consequences of a divorce judged in France can become apparent both during the divorce procedure proper, and again when the marital regime is “liquidated” and the assets divided.
Before reaching this stage, a certain number of questions should be considered:
Can two non-French nationals divorce in France?
Yes, if both parties have their main place of residence in France, or if the place of residence of the children is France.
Will French law apply to a divorce between foreigners?
Basically, yes. A French judge can apply a foreign law when rendering a decision. In practice however this rarely happens because the parties would need to convince the French judge of the contents of that foreign law. Most French judges will feel more comfortable working with French law.
There are basically four types of divorce procedure in France, one hostile, two amicable and one for a prolonged separation.
• The hostile procedure (“divorce pour faute”) involves a lengthy, often bitter battle, to demonstrate that the other party is responsible for the breakdown in the marriage.
• The simplest, fastest divorce is the divorce par consentement mutuel whereby the parties agree on everything (custody of the children, contact with the other parent, asset split, etc.). Before submitting a petition to the judge, the parties will have asked a notary to draft a document showing the agreed asset split or état liquidatif. (Note – The notary’s participation is only compulsory if the assets comprise real estate, if not the parties can draft the asset split themselves.) The judge will then simply order the divorce and rubber-stamp the asset split as submitted to him/her by the parties. If the judge considers that the asset split is unfair, he/she may refuse to approve the document – but this rarely happens in practice.
• The divorce accepté is put in place when the parties agree that a divorce is inevitable, but have not reached agreement on the on the finances of the divorce, ie the prestation compensatoire, and anything relating to the children custody and pensions). The judge will therefore make these decisions for them.
• A divorce procedure can now also be initiated if the couple has lived apart for two years (before 2005, the separation period was six years).
Except for the divorce par consentement mutuel, the procedure is a two-stage procedure.
Stage one: The judge will order the divorce, determine who has custody of the children and what financial support should be paid for the children and for the “impoverished spouse”.
Stage two: The notary will then proceed with the division of assets.
The party who does not have custody of the children will be ordered to pay financial support for the children even if their income is less than their former spouse’s income known as contribution à l’éducation et à l’entretien des enfants.
The judge assesses the amount due by calculating the needs and expenses of both parties.
The “impoverished” spouse also has the right to ask for additional financial support for their personal benefit. The judge will be asked to determine whether the divorce will create a disparity in the financial situation of the parties.
The stereotype example is that of the successful businessman whose wife has stayed at home to look after the children. After the divorce, the businessman will still earn a more than adequate income and can look forward to retirement on a satisfactory pension (probably from private sources). His wife, will, of course be destitute and so will ask the judge to award her financial support or prestation compensatoire.
There is no hard and fast rule for calculating the amount of this financial support. Some criteria are laid down in the Civil Code, e.g. duration of marriage, age of parties, respective income of parties, whether one party stayed at home to look after the children, etc.
Some financial guidelines have also been published, but decisions do vary between the courts.
Some clients have told me “I want half of my spouse’s income”, but in my experience, a French judge is more likely to award between one third and one quarter of the wealthier party’s income and/or pensions for marriages of long duration (more than 20 years).
The Civil Code states that the financial support should be paid as a lump sum.
In a recent case I have dealt with, the spouse was awarded a lump sum of €200 000. Both parties were nearing retirement age at the time of the divorce, the wife had given up work to bring the children up – and the wealthier party had an income of approximately €4,000 net per month. The marriage had lasted 30 years.
When calculating the prestation compensatoire the judge does take into account jointly held assets. When introducing a divorce petition, it is required by law that lawyer present the judge with an estimate of what their client will get in the split of assets procedure post-divorce. Indeed, this future sums to be had will be taken into account by the judge when calculating the prestation compensatoire.
It is also possible to pay the prestation compensatoire in kind. A husband who is ordered to pay his wife €200 000 by means of financial support may reach agreement with his wife that he will relinquish his €200 000 share in their €400 000 house. Although this would enable the wife to remain in the ‘family home’, it could leave her capital-rich, but income-poor.
It is not the French judge’s function to split assets – this is done by the notary after the divorce.
Obviously there is little difficulty in splitting jointly held assets (for example, a house held en indivision will be split 50/50 unless the original purchase deed indicates a different percentage holding).
It should be noted that the notary does not have judicial power. He/she can suggest the way the assets should be split, but if the parties do not reach agreement then the case will return to Court and only a judge can impose the division of assets.
The assets should be split in accordance with the matrimonial regime of the parties. However, this is easier said than done.
The marital regime normally corresponds to the regime applicable in the first country of residence after the marriage (unless the couple were obviously only living there on a short term basis), i.e. a couple who married in England and immediately moved to France to take up permanent residence will be considered to be married under the French “community” regime communauté légale unless they entered into a prenuptial contract.
This regime states that anything purchased after the marriage will be considered a jointly owned asset, whereas anything purchased before will be the property of the sole purchaser. The exception to this rule is donations and legacies which will remain the sole property of the beneficiary even if they are received during the marriage.
This joint ownership rule applies even if only one spouse works and so all the assets (movables and property) have been bought from one salary only. Under French law these assets will be considered jointly owned and shared accordingly.
However, compensation may be claimed if, for example, one party sold a home purchased prior to the marriage and invested that money in the family home purchased after the marriage, i.e. if the personal contribution came to 30 % of the family home, that party would be entitled to ask the “community” to reimburse him/her 30 % of the sale value of the property on divorce.
The situation becomes more complicated if the parties consider that a foreign marital regime applies (e.g. for people who married and lived in the UK prior to moving to France). In theory the assets should be shared according to English law, which provides for equity to prevail.
To date, I have not met a French notary who has split assets after a divorce in accordance with a foreign law. Although this scenario is not impossible, it would involve demonstrating to the notary the contents of English law on asset sharing and ensuring that he/she has a good understanding of English (if the parties requested the application of English law).
In my experience, the French notary will proceed with the asset split in accordance with French law. And as long as both parties are reasonably satisfied, the question of the applicable law will not arise.
With thanks to Marie-Caroline Escudie-Blachette, Associate Lawyer with Bright Avocats in Toulouse for kindly updating the information based on the original text by Julia Jones.
… or English one for that matter because an ever increasing number of “foreign” professionals are setting up business in our lovely area of France.
Now before I receive a deluge of complaints letters, I must stress that I am a litigation lawyer and so tend to see only the bad artisans. I have no doubt that there are numerous reliable, honest and hard-working ones – they, unfortunately, never seem to cross my path.
There is no golden rule which will enable you to have a harmonious relationship with your artisan. My experience has shown me that there are however some guidelines to avoid the most obvious pitfalls.
Choosing your Artisan
Obviously recommendations from friends are the best way – although not failsafe because an artisan can do a perfect job for one client, and botch it up for the next. You could also ask the advice of people you know in your village / town – the mayor, school-teacher, even your local doctor depending on the relationship you have with him/her.
If somebody else is having similar work done in the village, why not knock on their door to ask whether they are satisfied with their artisan. You wouldn’t mind if somebody took that initiative with you – so why should they? You’d only be taking up a couple of minutes of their time (and might get invited in for an aperitif if you time things right).
People tend to come out of the woodwork when it’s too late. A client who was having difficulties with his artisan told his doctor. The doctor’s reply was “well I could have told you he was no good if you’d asked me first”. Make sure you do the asking first.
Ask for (several) estimates (“devis”) and beware of the devis that is far cheaper than the others. Beware as well of the artisan who is a little too insistent. Good artisans often have their order books full for 3 to 6 months, you’d be better off waiting a couple of months rather than being in too much of a hurry.
Foolish though this may sound – make sure your artisan is a bonafide artisan. An artisan must either be registered with the “chamber des metiers” (if he operates as a sole trader) or with the Commercial Court (“Tribunal de Commerce”) if he operates as a company. In both cases, the artisan will have a registration number. You are perfectly entitled to ask to see evidence of registration.
Information on companies can be consulted on the Commercial Courts’ official website www.infogreffe.com or on an unofficial site www.societe.com. I find both sites very helpful. They provide general information about companies (address, share capital, name of directors) plus a summary of the company accounts for the past couple of years. They also indicate whether or not a company is in receivership.
Do not work with people who are not registered and/or ask for cash payments.
I am not unaware that there is a thriving “black” economy in France, however working with someone who is not registered is basically a penal offence, which could, in extreme cases, result in criminal prosecution and/or a large fine.
The practice of “daubing people in” is not uncommon in France. A viscous neighbour or disgruntled fellow artisan may take it upon themselves to inform the local police/tax authorities that they have seen Mr Dupont working up on your roof for the past 6 weeks even though he’s supposed to be retired. At best this will lead to you being interviewed by the local police and, at worst, to criminal proceedings.
Hiring students or inviting friends / acquaintances from the UK to spend time helping you renovate the house for free board and lodging would also be considered a criminal offence (you would be employing people illegally, and not paying the statutory social security charges and VAT).
Then, of course, if Monsieur Dupont falls off your roof and is seriously injured, you may end up paying a large sum of money to him if he was not covered by the French social security system whilst working for you.
Employment legislation is extremely strict in France and it is very difficult to get around it. My advice, therefore, is don’t try to. You should also check your artisan has the correct insurance coverage. He should have : professional liability (responsabilité civile professionnelle) for any damage that is caused to third parties, 10-year guarantee for the most important construction work (eg roof / walls) (garantie décennale), 2-year insurance for fixtures and fittings (eg gutters) (garantie biennale).
Ask to see his insurance policy and make sure that he is covered for the work to be done. He may be covered for laying tiles on your roof, but not for redoing your bathroom.
I think it’s only normal to ask to see these documents and an honest artisan will not mind complying with your request.
Working with your Artisan
The consumer code (“code de la consommation”) says that the professional must inform the consumer about the “main characteristics” of the work, prior to starting the job (i.e. the consumer should be told cost of man hours and material). This is basically done via the drafting of a “devis”.
The “devis” becomes binding once you have signed it. An artisan will normally ask for a 30% upfront payment to cover the cost of materials. You should either pay the rest when the job is done, or put in place a system of stage payments. Try to avoid paying more than the work actually completed. If your artisan starts hassling you for more money than you think is owed, this may mean that he has cash flow problems, which is never a good thing. If he goes into liquidation, you will probably find it very difficult to get that money back.
When the job is complete, you will be asked to sign the acceptance document “reception”. If you are satisfied with the work you will sign the reception document with no reserves “sans reserves”, if you think some things still need to be sorted out, you will sign with reserves “avec reserves” and the artisan should proceed to rectify the problems fairly swiftly.
The insurance will only kick in once the reception is complete. Until that time, it is up to the artisan to rectify any faulty workmanship.
The 10-year and 2-year insurance covers latent defects (“vices cachés”), ie faults that were not visible at the time of reception but revealed themselves at a later date.
If you are confronted with “vices cachés”, you must send a recorded delivery letter to the artisan telling him about the vices and inviting him to contact his insurance company. Under French law, you must act swiftly as soon as the vices become apparent (basically within a year of discovery).
If Things Go Wrong…
Under French law you cannot withhold monies that you agreed to pay even if you are dissatisfied with your artisan.
You basically either have to agree that the two of you can’t work together any more, come to an agreement about the money and both sign a document to that effect, or you have to pay him and then sue him (and his insurance company) in order to obtain damages.
That’s the theory. In practice, people do withhold payment and find that they are taken to Court by the artisan. If the artisan does initiate court proceedings to obtain payment of outstanding sums, you will have the opportunity of presenting your defence (e.g.. the work was so badly done that in fact, it’s going to cost you twice as much to have it put right).
A court procedure will invariably involve the appointment of an “expert” who will visit the property, establish the defects and attribute liabilities. You should not have any remedial work done by another artisan until the court appointed expert has drafted his/her report.
Unfortunately the procedure can be long and expensive. The person who requests the appointment of the expert (more often than not the consumer) has to pay the expert’s fees up front – you will be reimbursed if the Court finds in your favour. Expert’s fees for construction problems start at 2000 euros, but are more likely to come to 4,000 to 6,000 euros. You also need to add your legal fees to this.
In most cases, however, it is worth going through this procedure if the work is dissatisfactory and if the artisan had the correct insurance in place.
You should always reply to your artisan in the same format as he uses, i.e. if he writes you a recorded delivery letter stating “you owe me 1,000 euros”, you should reply via a recorded delivery letter indicating why you are not paying him. Remain polite, this exchange of correspondence will probably be produced in Court.
Do not ignore letters from your artisan. If the artisan writes to you requesting payment and you do not reply, Courts have sometimes interpreted this silence as an implicit acknowledgement that you do owe the money.
To avoid litigation, you can always try mediation. Your local court (Tribunal d’Instance) should provide you with a list of mediators that may be able to help.
And finally ….
Do not be bullied by your artisan. Do not let him intimidate you with comments such as “you know nothing about French law”, or “the Mayor of this village happens to be a personal friend of mine” (honestly the Mayor has more important things to do than get involved with your dispute).
Here are some of my anecdotes…
A client’s wife was told by the artisan “you don’t know what an honest day’s work is – the only work you’ve ever done has been out on the streets!”.
Another disgruntled artisan sent his mother-in-law to my client’s house where she proceeded to batter the windows and scream like a banshee until she was given a cheque.
Another client suspects that their artisan wrote abusive graffiti on their garage door one night.
Although my anecdotes might seem humorous now, I don’t doubt that they were very distressing at the time.
Other clients have told me that their artisan has physically threatened them by pushing and shoving them.
If any of the above happen, you should go straight to the local police and either make a “main courante” (a statement indicating what has happened) or a “plainte” (a more formal statement that will give rise to a police enquiry).
The police do not always react, but they might convene the artisan for an interview which should quieten him down. And even if the police don’t react, the artisan might get wind that you have consulted them, which should have the same effect.
To conclude: I’ve just reread my guidelines and they do read like a book of doom – however, they are only guidelines and don’t forget many people have established a happy and harmonious relationship with their artisan and are more than satisfied with the work done.
To simplify the drafting of this document I have presumed that the artisan is male.
FRENCH PROPERTY TRANSACTIONS
Who comes first, the notaire or the avocat ?
Most British people are confused by this and it’s easy to see why. In the UK a solicitor covers roles proposed by both a French notaire and an avocat, while a barrister covers some avocat roles.
If you can distinguish between a UK notary and a solicitor then you’re halfway to knowing what a notaire’s role entails. And if you’re still (quite rightly) baffled about the French split in a UK solicitor’s dual role, there’s a simple logic to untangle the two: Impartiality.
Both avocats and notaires are legal professionals who exercise a relationship of trust with their client as a legal advisor. However, depending on the case this may just be a banal pen-pushing procedure, whereas it could be an act that engages your criminal responsibility. The problem arises when there is a contentious issue, as nobody can fight fairly for both corners at once!
To this end a notaire must remain impartial, allowing them to work simultaneously in the interests of both parties to the act. On the other hand, an avocat can position themselves as only defending the interests of their client, while ensuring the fairness of agreements made between parties.
So why engage an avocat before starting a property transaction?
For anyone who has bought, sold, inherited or divorced, you’ll appreciate that it can be a bumpy ride.
If the notaire’s main role is to draft an authentic act, then the avocat’s is to weed-out contentious issues.
Avocats are experienced in resolving disputes and notaires are quick to advise appointing one if a complication arises. As avocats deal with litigation, they are more familiar with case laws and the courts, allowing them to illustrate with legal precedents what each clause in the contract means, and can explain exactly what the implications are when you sign a legal document.
Also, an avocat, or rather, an experienced avocat, will have an impalpable sixth sense. They notice what is not mentioned more than what is, know what sellers will want to hide and what buyers will forget to ask.
They also know, through experience, what has caused expensive litigation, ridiculous delays, or ruptured contracts, and can spot them a mile off.
This is why it is always wise to involve an avocat in property transactions; it’s often just a case of asking the right questions.
Why you should never ignore the letters from your bank when defaulting on your home loan
When you buy a property, either alone or with a spouse or partner, in most cases, you take up a loan with a bank to finance this property. To secure this loan, the bank will ask you to choose between two securities: either a lien on your property or a third party guarantee.
This is a security for the bank, and more often than not, its implications are not fully explained to the customer.
This security means that if you default on your loan, the bank can start a repossession procedure and sell your house.
As most loans are usually subscribed for a minimum of twenty years, you never know what is going to happen in the meantime.
A situation which often occurs with British people who get a divorce in the UK while owning a property in France is that the British judge will transfer the house to one spouse or order him/her to sell it so that in many instances, the other former spouse will stop worrying about the fate of the house.
But sometimes, the spouse will stop paying the loan and the bank will also pursue the one who thought he/she no longer had any business with this property, because the divorce judgment does not concern the bank.
This is the reason why you should contact a lawyer as soon as you receive a letter notifying you of the default on payment.
At BRIGHT AVOCATS we have helped many clients with their repossession procedures and in most cases, clients only contact us after they have received the petition to appear before the court, which is the very last stage of this procedure.
Indeed, under French law, the bank has to respect many procedural stages before it can ask the court to have your property sold at a public auction in order to repay the loan.
By acting early the repossession procedure can often be delayed. In fact, at BRIGHT AVOCATS we have successfully negotiated with banks on behalf of our clients so they could avoid the repossession procedure altogether, but his entails that you contact us before you receive the petition to appear before the court.
However, if you find yourself at a later stage of the procedure, please know that this procedure is not necessarily a death sentence. BRIGHT AVOCATS have, in the past, been able to get the repossession procedure dropped on legal technicalities. If there is no legal ground to drop the case, we help our clients leave this procedure with a profit, if not with their house.
And this is the reason why you need to very quick in contacting a lawyer when you receive a payment default letter from the bank: under French law, when the repossession court procedure is started, it always end up with the sale of the property, whether at public auction, or amicably.
Planning permission and keeping ‘neighbourly’ relations
When you or a neighbour receive the thumbs-up from town planning, you’d think you could relax with the comfort of an irrecoverable official approval for construction. Ha! – not so fast.
As with every country, French law is divided into various subcategories: civil law, commercial law, criminal law, town-planning law, environmental law, tax law… and for each subject, its own set of rules.
The French legal system we have today is based on years of legislation, with each new government knowing better than the previous one, inventing their own new laws or modifying old ones. This constant interfering is intended to provide citizens with airtight legal security.
That is the theory. However the consequence is that there are now hundreds of thousands of different laws ruling each country – and it wouldn’t be fun if we had the same laws in every country.
With so many laws, it is not surprising that there can be several which apply to the same situation and, ingeniously, they contradict each other. But fear not : there is a cumbersome, costly and largely inefficient procedure for unravelling the mess.
It goes like this.
Citizens who believe that they’re prejudiced take their case before the Tribunal Judiciaire (formerly known as the Tribunal de Grand Instance). Because there are conflicting laws and this court may not share the plaintiff’s point of view, they have to take it to the court of appeal, who in the case of no precedent cannot answer and will send it along the corridor to the highest court, the Cour de Cassation. This court then rules on which law specifically takes precedence for this situation over the other existing laws. Then, because the Cour de Cassation is a court which only deals with the interpretation of the law and not how it applies to cases, the parties have to go back before another court of appeal to have the Cour de Cassation ruling applied to their case.
As one can imagine, a huge amount of time, money and ulcer treatment is dedicated to these cases.
This rigmarole often applies for issues arising in ‘neighbourly’ disputes.
A much reported and rather comical case involved a pond which was home to a protected species of frog and the new inhabitant of the neighbouring property who did not appreciate the frogs’ amorous overtures.
In this case, two sets of law were in conflict: environmental law which protected the pond and the frogs and civil law with the ever-evolving notion of abnormal neighbourly disturbance or “trouble anormal de voisinage”. They battled over 10 years. This notion is based on the judges’ appreciation of what each person is supposed to tolerate from their neighbours.
Another far more common example involves the melodious 24/7 cock-a-doodles of roosters.
The Court of Appeal of Toulouse had considered that the hullabaloo and its repetition indeed constituted an abnormal neighbourly disturbance, but on a different case the (apparently well-informed rural authority) Parisian Court of Appeal, had considered that there were normal sounds to be expected when living in the countryside.
This greenwashed deduction prompted the French government in 2021 to create a law to define and protect the smells and sounds of the countryside; which does neither, leaving it open to the judge’s free interpretation.
These anecdotes may make you seethe smile, but they perfectly illustrate the issue when two sets of rules come into conflict which is often the case with Town-Planning Law and Civil Law.
In practice, if you want to build a house on an empty plot, elevate a house, build a pool or garage, based on the type of construction, you will need to file for planning permission.
If your project respects the town-planning rules, it will be approved and you will obtain a planning permit. This planning permit needs to be put on display for two months to allow potential contestation based on town-planning law. After the two-month period has elapsed, the construction work can start – get the cement mixer spinning, strong tea and very loud radio on. What could possibly go wrong?
Unfortunately… the construction work can still be halted and even years after the construction has been completed, there can still be disputes which could result in the destruction of the building, its modification and/or the compensation of the neighbour.
The reason is that the administration which grants the planning permit only examines the project in light of town planning (urbanisme) regulations and does not account for other laws which may impact the project. This is mostly Civil Law as there are several articles which directly impact the way you can build or modify your property.
For example, there are distances to respect between your construction and the neighbour’s property if you want to create openings or windows and the distances vary on whether there is a direct or lateral view on your neighbour’s property. There are also sets of rules regarding the construction of your roof based on watershed.
However, ‘top of the unpops’ between neighbours is the interpretation of abnormal neighbourly disturbance or “trouble anormal de voisinage”.
Even if there is no direct law which states that your construction is illegal based on town-planning law, civil law, environmental law or any other, an annoyed neighbour can still claim that it is causing a prejudice and that the offending construction needs to be modified or even destroyed.
This can be the case for boisterous swimming pool use (the hellish cacophony of other people’s joy and splashing), or an Aircon unit – even if it is recent and up to norms – can still be considered intolerable, and cause prejudice resulting in having to move it or remove it entirely.
Another claim which can result in the destruction of a property built with perfectly valid planning permission is if the new building (or the increased height of an existing building) causes a loss of light on a neighbouring property.
As with the previous examples, this sort of claim depends on the judge’s evaluation of the circumstances – what level of noise is normal, what duration should it not exceed, what is the cost of diminished light, or view, or privacy? As decisions vary greatly from one judge to another, it’s wise to have one’s case backed up by previous similar arbitration.
Examples of heavily condemned (but previously approved) planning permission :
A detached house with the loss of sunshine on the swimming pool starting in the middle of the afternoon and the loss of intimacy, resulted in the neighbour being condemned to pay a compensation of 148,000 € (40% of the value of the property in the shade) plus 50.000€ in damages.
A detached house, with a loss of between 60 and 70% of sunshine, the courts ordered the demolition of the new construction which caused the issue with a daily penalty of 50€.
In a densely populated area, for a loss of sunshine between 6 and 46%, the courts ruled on a compensation of 30,000€ (10% of the value of the property) plus 3,000€ in damages.
These are a few of the many reasons why having a planning permit does not necessarily prevent a neighbourly dispute.
BRIGHT AVOCATS has extensive experience in this type of litigation so we will be able to help you navigate the different laws and assist you if a dispute arises. But better than cure, we can also advise on potential, foreseeable contentious issues relative to a construction project, and endevour to keep healthy neighbourly relations.