Who Should Draft the Compromis de Vente?

It is true that French estate agents (agents immobiliers) by law are permitted to draw up the compromis the vente, which is the contract of sale in France. In fact, a buyer and seller could even agree the terms of the sale between them on the back of a napkin! But that does not mean it’s a good idea. Most vendor agents I know agree with me and recommend that clients engage a notaire to draft the initial contract of sale.
 

The Facts

1. The Compromis de Vente is a very important binding legal agreement containing the conditions that would allow you to get out of the sale, such as the obtaining of a mortgage loan or building permit. The final deed of sale is based on the compromis de vente and the notaire (publicly appointed impartial lawyer) must draft and authenticate the final deed of transfer (acte authentique). They do not charge extra for also drafting the compromis de vente. Therefore, there is no cost saving, or any other reason really, not having them involved from the beginning. The notaire can also advise you on inheritance and other matters and it’s best to get them involved as early in the process as possible.

2. A notaire is a French lawyer who specialised two or three additional years in property, family and estate law. Even if your estate agent were a lawyer, they would not have this specialisation and experience. Some agencies have in-house lawyers who trained to be notaires, but they are employed by the vendor agency and therefore not as impartial as the state-appointed official notaire.

3. The only way a buyer can get out of the initial contract is if one of the conditions suspsensives are not “lifted”. The drafting of these clauses is a very serious matter. One wrong word or omission can make the difference between being able to pull out without losing your downpayment or not.

4. Although the estate agent might do their very best to remain neutral in the transaction, the reality is that they were hired by the vendor to sell their house and they tend to be on the seller’s side in case of conflicts. They earn their living selling houses, not by being buyer’s advocates.

An example that I came across recently: after the compromis, we discover that the oil tank for the heating furnace is located on the property of the neighbours (don’t ask!). This is a small village and the estate agent has his office in the village. The vendor had not disclosed this fact to anyone, even though he was well aware of the situation. If the vendor’s agent would have had to deal with this, it would have become very awkward. Luckily, an efficient bi-lingual notaire had been involved from the beginning and she simply arranged for the costs of moving the tank to be paid by the seller.

5. You don’t even have to use the same notaire as the vendor. You’re free to appoint your own notaire and the two notaires must share their (government regulated) fees 50/50. This means that there is no extra cost to the buyer.

Granted, notaires are human and some are better than others. In some parts of France there is still corruption with purchase prices and estate agency commission partly being paid under the table. As search agents, we assist our clients with appointing their own notaire. If you don’t have a search agent (buyer’s agent) then you might be able to get a recommendation from someone you trust. We also recommend that before signing the contract buyers ask a French law expert in their own country advice on how to best structure the purchase. If you haven’t had the time to do that at the time of signing the Compromis de Vente, you can ask the notaire to include a substitution clause in the initial contract so that a different purchaser can be substituted in the final deed of transfer.

 

In Summary

There is no clear argument in favour of having a compromis drafted by the vendor’s estate agent and several arguments against doing this. If the agent says that they can do it quicker than the notaire and you’re worried about losing the property before the signing, then you could sign an offre d’achat, countersigned by the vendor, making sure that the offre be made conditional on the signing of a compromis with the standard 10-days cooling-off period. If you do go ahead and sign an agency-produced compromis de vente, then at least use your ten-day cooling-off period to have the agreement reviewed by a dual-qualified lawyer, such as Florence Richards of Furley Page


 
 
2013LinkedInportraitOptSophia Mose runs PROVENCE SEARCH, a property search agency covering Provence and the Côte d’Azur, including Aix-en-Provence, the Luberon, Alpilles, Var coast, Cannes and Nice. Sophia is a lawyer and licensed French Agent Immobilier. Get in touch for a no-obligations consultation.
 

2017-01-11T22:50:22+00:00