UNDERSTANDING THE ROLE OF THE NOTAIRE

By Schuyler Hoffman

Discussion of any real estate topic is not possible without at least mentioning the "notaire." Knowing a bit of background about notaires and their profession will help you not only understand their importance to real estate transactions, but in French society as well.

The role of the notaire in French society dates back to the third century. Its existence as a profession began in 1539 by order of François I. Long established as the givers of advice in a wide range of areas (notaires are effectively the general practitioners of the law), notaires were among the few officers of the government to survive the Revolution. As providers of special advisory services for
families and companies, notaires today see 15 million people every year and draft more than 4 million instruments.

Notaires are public officers appointed by the Minister of Justice and
supervised by the Ministry. They are impartial witnesses to agreements and the instruments they draft (known as "actes authentiques notarié") which have the same status as court judgments. Notaires also archive the instruments they prepare, making them easy to produce when needed.

While I normally talk about them in the context of real estate transactions, the notaire's expertise also covers family and marital issues, companies of all types, international private law, town planning, consumer law, contract law, tort and quasi-contract and statutory obligations, tax law, mortgage law and many others. Notaires are there to clarify issues and advise their clients on the most appropriate legal process for their circumstances and on the consequences of their commitments. Much like attorneys, all information is treated as confidential and they are subject to a strict code of ethics.

Foreigners often mistakenly equate a notaire with a notary. The requirements to be a notaire demonstrate that this is not the case. Candidates must have French nationality. Additionally, there are academic requirements:

* A Master of Law degree (or a diploma recognized as equivalent for the purpose of practicing as a notaire);

* The "Diplôme d'aptitude aux fonctions de notaire" (Notaires'
diploma) and a certificate showing successful completion of a training period or the "Diplôme supérieur du notariat" (Notaires' higher diploma).

There are further requirements for personal fitness:

* Candidates must show they have no criminal convictions for offences
showing a lack of honor or integrity or involving actions contrary to
accepted standards of behavior;

* They must show they have not committed any similar actions which led to their being forced to take compulsory retirement or to a disciplinary or administrative sanction leading to dismissal, or loss
of approval or authorization;

* They must show they have never been involved in bankruptcy or been subject to any other sanction pursuant to any statutory provisions relating to insolvency proceedings or the judicial liquidation of a company.

So, you can see there is obviously a difference.

A notaire's involvement is a service. Like any other service it involves a cost... the cost borne by the client. What do notaires' costs cover? Sums paid to notaires, often incorrectly referred to as "notaires' fees," consist mainly of taxes due to the public revenue department (depending on the nature of the transaction), followed by any disbursements, and last of all, the notaire's remuneration.

The notaire's "fee" is strictly regulated and fixed by decree and covers all the guarantees and services provided by notaire. The policy behind this is that fixed prices give clients equal access to the public service provided by notaires. Notaires' accounts are subject to strict rules which guarantee the security of monies deposited by clients. Even as a foreigner you should feel secure. Hopefully, providing a little background de-mystifies the notaire profession for you and gives you a better understanding of the role they play.