buying property in france | Aussie in France

All property transactions in France take place in two steps: first, after the seller has agreed to the price offer, the seller and buyer sign a promise to sell in the form of either a promesse de vente (unilateral promise to sell) or a compromis de vente (bilateral promise to sell). This can take place privately, in a real estate agency or in a notaire’s office. Then, usually about 3 months later, when all the conveyancing has been done, both parties sign the acte de vente to close the sale.

Which is better?

The first time I purchased a property in France, in the early 1980s, I was told that it was better to sign a compromis de vente rather than a promesse de vente so I was surprised to learn recently, when asked to interpret during the signing of a promise to sell in a notaire’s office that it was a promesse de vente and not a compromis was better.

An estate agent can only process a compromis de vente

Despite my research I was not able to really determine the difference between the two so I asked the notaire, who told me that he only used the promesse de vente agreement. His explanation did not fully satisfy me, apart from the fact that the promesse de vente would appear to be in the purchaser’s favour and the compromis in the seller’s favour. Also, a real estate agent can only use a compromis de vente agreement which probably explains why I was told it was preferable. Real estate agents who have obtained the corresponding certification can prepare the compromis without going through a notaire and the price of drawing u p the agreement is included in their commission. The promesse de vente is which is called an acte authentique which means that it is always signed in front of a notaire.

After looking at my own records (my husband and I have bought or sold 8 times, 3 times with a real estate agent and 5 times privately), I discovered that there was a compromis de vente each time a real estate agent was involved and a promesse de vente all the other times. However, I have since attended a training course on the subject for court sworn translators and have updated my knowledge on the subject. Here are my conclusions.

Promesse d’achat or purchase offer

This must not be confused with a promesse de vente or compromis de vente!

Whether referred to as a purchase offer, unilateral promise to purchase, or simply a price offer, this document presented by some estate agents should be treated with caution. Its main feature is that it is binding only on the buyer, not the seller. It is certainly not compulsory.

Promesse de vente or unilateral promise to sell (the least common)

The seller promises to sell the property to the future buyer at a price agreed upon by the parties thus giving the future buyer exclusivity for a pre-determined period (usually two to three months).

During this time, the seller cannot promise to sell the property to anyone else whereas the future buyer can cancel the sale if they wish to, the only drawback being that they will lose the indemnité d’immobilisation or reservation fee (which roughly corresponds to non-refundable earnest money) if they do not go through with the sale. The reservation fee is usually 10% of the sales price.

If the future buyer does go through with the sale, the 10% is deducted from the price still to be paid.

To be valid, the promesse de vente must be registered with the tax department within ten days of signature. The registration fee, paid by the future buyer, is 125 euros. The notaire does not charge a fee for drafting the agreement – it is included in the fee for the sale as a whole.

Compromis de vente or reciprocal promise to sell (the most common)

Also called a promesse synallagmatique de vente. The seller and the future buyer both undertake to conclude the sale at a price determined jointly. Legally, the compromis is therefore tantamount to a sale. If one of the parties wants to pull out of the transaction (except if the one of the conditions precedent is not met), the other party can take them to court and force them to do so, in addition to claiming damages. However this can be a very lengthy process.

When the compromis is signed, the purchaser pays earnest money (dépôt de garantie) corresponding to 5% to 10% of the sales price. The earnest money is deducted from the final sales price.

The compromis de vente does not have to be registered with the tax department so there is no fee. However, if there is a dispute about the conditions precedent, the parties will both be bound by the agreement, unless the dispute is settled amicably between the parties or by a court decision.

In the case of a promesse de vente, both parties are released from the agreement if the future purchaser decides not to buy. The vendor cannot change their mind and the agreement is immediately enforceable without going to court.

Cooling off period for purchasers – promesse de vente et compromis de vente

Whether you sign a unilateral promise to sell (promesse) or a reciprocal promise to sell (compromis), you have ten-day cooling-off period (délai de retractation) during which you can decide not to purchase the property. The letter stating your intent must be sent by registered letter with acknowledgement of receipt to the seller. If you go through a notaire, this can be done electronically.

Whatever the reason for cancelling the sale, any amount paid by way of reservation fee (indemnité d’immobilisation) or earnest money (dépôt de garantie) during the cooling-off period will be reimbursed. The 10-day cooling-off period starts on the day following the day on which the promise to sell is signed at a notaire’s office or, if a private promise to sell is signed, at the first presentation by the postman of the registered letter with acknowledgement of receipt containing the agreement.

For example, if the letter is sent on 10th of the month and the first presentation is the 12th of the month, the cooling-off period will begin on the 13th and end on 22nd at midnight.

Conditions precedent – promesse de vente and compromis de vente

I mentioned the question of conditions precedent (conditions suspensives) earlier on. These are conditions that must be met for closure of the sale to take place.

Whether the promise to sell is unilateral (promesse) or reciprocal (compromis), the seller and buyer can agree to insert one or more conditions precedent in the agreement. This means that if events defined as conditions precedent do not take place before the final sale, the agreement is null and void.

Examples: the purchaser’s bank loan is refused; the municipality has a pre-emption right; a serious town planning easement is discovered. In these cases, the amounts paid by the purchaser are refunded.
A compromis de vente can also contain a clause called a “clause de dédit” (retraction clause) which enables the seller and/or the purchaser to cancel the sale without giving a reason, in return for leaving the other party an agreed-upon amount. However, this practice is very rare.
The above clause must not be confused with the penalty clause, which exists in most compromis de vente according to which the purchaser must pay the seller a fixed amount in damages if the purchaser refuses to go through with the sale.

To sum up, if you are purchasing a property in France and you want to be able to cancel the sale without giving a reason (and are prepared to lose the 10% reservation fee!) or if you want to guarantee the date of sale, then you will need to sign a promesse de vente at a notaire’s office.

If you are selling a property in France and the purchaser needs to get a mortgage loan, it is also better to sign a promesse de vente because if the loan has not come through on the stipulated date, you can simply walk away from the sale and find another buyer. If you have signed a compromis, you will have to go through the court to have the sale cancelled which can be a lengthy process.

In all other cases, you can choose either a promesse de vente or a compromis de vente, but if you are going through a real estate agent, then it will be necessarily be a compromis de vente unless you specifically ask for a promesse de vente through a notaire.

Whatever you choose, you will have to sign the final deed of sale at the notaire’s office. I strongly advise choosing your own notaire (in which case the fees are split between all the notaires involved), not because of any possible dishonesty on the part of a notaire, but simply because you will always have an unbiased opinion. If the notaire also draws up the promesse or compromis, the cost will be included in the cost of the deed of sale.

My second recommendation is to make sure you understand EVERYTHING in the compromis or promesse and the deed of sale (all of which you can request before the day of signature). It can be too late if you wait for the deed of sale, which is virtually the same as the compromis or promesse. Some real estate agents are competent to explain all the details but always remember that they want the sale to go through or they won’t get their commission. Otherwise you can call on a sworn translator who can also be present during signing of the compromis or promesse and the deed of sale.

Even when you speak the language and have lived your whole life in a country, buying a property can be stressful and challenging. Doing so in a foreign country makes it a little more complicated.

I have lived in France for over 40 years and have been directly or indirectly involved in the sale or purchase of a large number of properties. Real estate rules have evolved over the years and regulations are much stricter than before.

There are basically two ways of buying property in France: you can deal directly with the owner or go through a real estate agent or website. In both cases, the final sale will be handled by the notaire. “A Notaire is a legal specialist with a public authority mission who draws up authenticated contracts on behalf of his clients. He is self-employed”. The notaire himself also sells properties on commission.

1/ Buying through a real estate agent or website:

Real estate agents have to have a licence and a diploma, which requires a minimum of 2 years’ training after the end of high school. Those with higher diplomas (bachelor’s or master’s degrees) are entitled to draw up a promise to sell and manage apartment buildings.

In France, the real estate agent’s fees (usually 5 to 7% of the sales price) are nearly always paid by the buyer. The promise to sell agreement is included in the fee but the buyer and seller can choose to go through a notaire. Agent’s fees are different from notaire’s fees and taxes.

2/ Buying directly from the owner:

With the many possibilities offered by the Internet, more and more people want to avoid the real estate agent’s commission and buy directly, through French websites such as LeBoncoin, SeLoger, Logic-Immo, pap (particulier à particulier), Superimmo, Figaro Immo, SeLoger Neuf (new homes) and Superimmoneuf (also new homes). There are other international websites such as Greenacres.

The buyer can deal directly with the owner and can even sign a promise to sell with going through a notaire if they wish.

3/ Buying through a notaire:

The notaire is often approached by local people when buying or selling as they feel they have a better legal guarantee.

4/ Real estate agents vs private sales

Which should you choose? A real estate agency or a private sale?

If you don’t speak French or have little legal knowledge, a private sale will be more complicated unless you are really sure of the person you are buying from. Despite the fact that there is no commission, it might be more difficult to bring down the price with a private owner who often overvalues their property for sentimental reasons.

For the buyer, it is important not to let the personality of the owner cloud their judgement, even if they speak English.

In the more popular areas of France, real estate agents often speak English themselves which can make life much easier for buyers. They will often take you to view several properties just to get a good understanding of what you are looking for. It is easier for a buyer to say “no” to a real estate agent than to a private owner. Also, it is the agent who negotiates the price, not the buyer. However, some agents are very persuasive. You should make sure you feel comfortable with the person showing you around and don’t feel bullied into buying something you don’t want!

Real estate agencies can be nationwide such as La Foret, Square Habitat, Century 21 or Orpi, which will give you access to all their properties in France, or independant, in which case they may be a member of the real estate agency federation, FNAIM, which will provide you with a better guarantee than a small agency working on its own.

The agency will usually ask you to sign an agreement under which you cannot deal directly with the owner of a property you have viewed.

5/ The next thing is to draw up your criteria, the things that you absolutely must respect such as price, amount of work to be done, location in an urban or rural area, size, aspect, type of flooring, type of heating, etc. Having to replace the roof or put in a new heating system can be very expensive.

Other factors to look out for are the land tax (taxe foncière) which can be quite expensive in some areas, rates (taxe d’habitation, which are being phased out but still applicable for people in higher income brackets), cost of heating (you’ll need to see the actual bills), shared expenses and the financial health of the joint owners if it’s an apartment building (if there is a swimming pool, lift, caretaker, extensive grounds, it will cost more to run).

6/ It can also be helpful to use the services of a person who speaks your language and knows the area, especially if you live far away or are dealing with private owners. This is a service I am happy to offer.

Next step – viewing and signing the promise to sell.

Rosemary Kneipp, sworn translator with the Orléans Court of Appeal. www.kneipp-traduction.com kneipp@kneipp-traduction.com or 06 76 41 99 43

Aussie in France

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Promesse de vente vs compromis de vente