“Compromis de Vente”
The “Compromis de Vente” is the initial contract between the seller and the purchaser. It forms the basis of the agreement which will eventually be formalised in the “Acte de Vente” drafted by the Notaire. It is therefore important to consider its terms very carefully.
The “Compromis” is sometimes prepared by the estate agent who will have completed a standard form, which does not always contain the correct information. Great care must be taken before signing it and in any event, legal advice must be sought before doing so. The “Compromis” will in particular contain a number of conditions precedent which must be spelt out clearly in order to avoid any uncertainty.
The “Compromis” is arguably the most important document and it must be read and understood fully before proceeding any further. Under French law, purchasers have a 10 day ‘cooling off’ period during which they have extra time to think about their commitments. They may even change their minds and not go ahead with the transaction provided that they inform the other party within that 10 day period.
This document can be signed in England as there is no obligation to sign it in France.
“Contrat de Réservation”
The “Contrat de Réservation” is used when the transaction refers to the sale of an off-plan property.
‘Cooling Off’ Period
Once the “Compromis de Vente” or the “Contrat de Réservation” has been signed by the seller and the purchaser, either the Notaire or the agent (depending on who drafted the contract) will send the purchaser a copy of the signed “Compromis” by registered post. The purchaser then has a period of 10 days during which he can change his mind and not proceed with the transaction by advising either the Notaire or the agent of his decision also by registered post. This ‘cooling off’ period starts from the day next following receipt of the Notaire’s or agent’s registered letter (and not, contrary to popular belief, from the date when the purchaser signs the “Compromis”).
“Acte de Vente”
The Notaire drafts the “Acte de Vente”, which is the transfer deed and incorporates the terms of the “Compromis de Vente” or the “Contrat de Réservation”.
Completion of the “Acte de Vente” normally takes place at the Notaire’s office. Should one party to the transaction not be able to attend completion, a power of attorney will need to be put in place enabling some other named person (often one of the Notaire’s clerks) to sign on behalf of that party.
Once the completion monies have been received by the Notaire and both the seller and the purchaser have signed the “Acte de Vente”, the transaction is completed.
With the purchase of a leaseback property, the purchaser of the property leases it back to a management company who will run the complex of which the property forms part as a business for tourism. Great care must be taken before signing the commercial lease as this type of investment has implications that need to be fully understood by property investors.
French Inheritance Law
French inheritance law is very different from UK inheritance law as the former protects the deceased’s children through its forced heirship rules. Basically, this means that children automatically inherit a share in their deceased parent’s immovable property (eg house) in France. This also means that the French property will not pass to the surviving spouse absolutely as it may under English law.
The French succession rules will apply irrespective of the domicile, nationality or residence of the deceased owner of a house in France. The concept of joint ownership is alien to French law and it is therefore advisable to seek legal advice as to how best to deal with this matter – a number of options are indeed available.
Since 2015, however a new EU regulation has made it possible for owners of French property to have it administered under the law of their nationality by making a election in their will. Before deciding whether such an election is the best option, we recommend that our clients consider all options carefully.
This means that a number of persons (2 or more) are purchasing the property together either in equal or unequal shares (eg 50/50, 40/60). If the purchase is made “en indivision”, the French inheritance rules will apply upon death with the deceased’s share in the property passing either in full or in part to his/her children.
Under a “tontine”, on the death of one spouse, the property passes to the surviving spouse absolutely. This requires inserting a special clause in the “Acte de Vente”. However, this option is only recommended for purchasers with very specific requirements. Both the advantages and disadvantages of the “tontine” must be considered very carefully before adopting it.
By adopting the French matrimonial regime of “communauté universelle” in respect of the French immovable property, the surviving spouse receives that property absolutely with the ability of disposing of the property as he/she pleases. There are advantages and disadvantages to this arrangement and expert legal advice must be sought before adopting it.
Forming an SCI (“Société Civile Immobilière”)
It is possible to purchase French property through the vehicle of an SCI, which is a type of French company. This means that the property is held by the SCI, the shares of which are owned by individuals (the members of the company). French succession laws do not apply to the devolution of those shares because they are movable assets and therefore pass on death in accordance with the law of the owner’s domicile. If the owner was English, his/her shares can then be transferred under his/her English Will to the beneficiaries of his/her choice.
French and English Wills
Depending on how you structure your purchase, we recommend that you make an English Will dealing with your UK assets and also a French Will dealing specifically with your property in France. Great care must be taken in order to avoid inadvertent revocation of either Will and legal advice must be sought in this regard.
French Inheritance Tax
Since 22 August 2007, no French inheritance tax is payable between spouses.
French Capital Gains Tax (“Plus Value”)
French tax capital gain may be payable on the sale of French property if the property is not the seller’s main residence. It includes a 19% income tax and social security contributions taxed at 17.2%. Full exemption is granted for the former after 22 years’ ownership and 30 years’ ownership for the latter.
Notarisation and Legalisation of French Documents
The sale or purchase of French property may be completed by power of attorney if the seller or purchaser cannot attend completion at the Notaire’s office in France. The power of attorney will usually have to be signed before a Notary Public before being sent to the Foreign Office where the ‘apostille’ (an official seal) will be affixed on the document by way of legalisation.