Complaints about notaires by international owners are widespread, so what are the most common problems?
The notaire in France is a unique legal professional, acting as an agent of the State, but in a private capacity.
They have a monopoly of the conveyancing process in the sale and purchase of real estate, but they are also omnipresent in inheritance formalities, and in wealth management. Each year they collect around €30b in taxes from their work.
The personal and confidential nature of their business makes it difficult to assess their performance, but an insight can be obtained each year from the annual report of the Médiateur du notariat.
The Médiateur is a government appointee, charged with trying to settle disputes between individuals and their notaire on an amicable basis.
In his latest report the Médiateur ruminates on some of the more frequent complaints he receives. The list is by no means comprehensive. A problem we hear about regularly from readers, not covered in the report, concerns delays in forwarding the proceeds of the sale of a property, with often unexplained or unconvincing reasons from the notaire.
Delays in Succession Declaration
The most notable of the problems reported by the Médiateur are delays in the processing of a succession.
In France, a declaration of a succession (when any inheritance taxes due are payable) must be made within 6 months of a death, or 12 months if the deceased lived outside of France.
If the deadline is not respected then penalties are payable, in the form of the payment of interest and a tax surcharge.
The Médiateur pointed to several cases where the deadline was not respected, and penalties were incurred.
The reasons for the delay were not always attributable to the notaire, but the Médiateur expressed concern that the notaire had not been active enough in communicating with inheritors about the formalities and of the risk of a penalty. Indeed, the lack of communication by notaires is a consistent problem mentioned throughout the report.
Genealogist
Complaints about the appointment of a genealogist to find inheritors, or to prove their identity, was also a regular source of grievance.
The notaire sometimes made recourse to a genealogist, frequently without consultation with the heirs, to establish the line of succession when this did not always appear necessary.
The Médiateur pointed out that the notaire is not required to carry out exhaustive investigative work to identify or find the heirs, but that heirs also had a responsibility to produce adequate evidence of their entitlement. We published an article about the appointment of a genealogist at Heir Hunters and French Inheritances.
Assurance Vie
The declaration of life insurance contracts (assurance vie) at the time of a succession also drew the attention of the Médiateur, who considered that notaires were not always active enough in establishing the existence of such contracts (particularly where inheritance might be payable due to excessive premiums after the age of 70 years) as a result of which penalties were incurred when the contracts were later discovered by the tax office.
Purchase Deposit
The management of the deposit made by a buyer following non-fulfillment of a sale and purchase contract was an issue of concern.
The deposit is normally 10% of the purchase price, but it may be lower, and sometimes no deposit is paid, although a penalty is normally always due in the event of default by the buyer.
Many of the complaints received concerned the difficulties encountered by the buyer in the return of the deposit when a conditional clause in the sale and purchase contract was not triggered. This was often in connection with a refusal by a bank to grant a mortgage to the buyer.
Conversely, complaints were also received by the seller who sought payment of the penalty on default by the buyer.
The Médiateur felt once again that there was a lack of advice provided to the parties about the legalities of the deposit – that the contestable nature of the return or the payment of the deposit needed to be made clear to the parties.
Local Searches
The local searches undertaken by the notaire in the process of conveyance also came under the spotlight.
In the cases purchasers had reproached the notaire for not having properly carried out the preliminary investigations as a result of which the property acquired did not correspond to their expectations, due to an impediment. We published an article on this issue at Notaires and Local Planning Searches.
Using the Médiateur
Making use of the mediation service to settle a dispute with a notaire is by no means self-evident. As we reported in our article Notaires Mediation Service, a notaire is not obliged to accept mediation, and many hundreds of complaints each year to the Médiateur do not proceed to an investigation for this very reason. Even if they do proceed, the notaire is not obliged to accept the advice of the Médiateur.
In addition, many complaints go unrepresented due to a lack of compliance with the process by complainants. In particular, a formal complaint must first be made to the notaire and only after 2 months (and not more than 1 year) have elapsed after a lack of response by the notaire can the Médiateur be asked to intervene.
You can make a complaint at faire-appel-au-mediateur.
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