French Property News – August 2019

80 French Property News August 2019 http://www.completefrance.com

TIME FOR CHANGE

This year’s Congrès des Notaires de France focused on

international challenges and put forward some interesting

proposals, say Barbara Heslop and Fabienne Atkin

F

or the first time in its history,

the 115th Congrès des

Notaires, the annual congress

of French notaires was held outside

France, in Brussels, the capital of

the European Union.

Brussels was chosen to reflect the

theme of this year’s congress which

was ‘International’ with the focus

on private international law – in

other words, the body of rules

which determine the jurisdiction

and choice of law to apply when a

matter or dispute presents a

cross-border element and there are

conflicts in the domestic law of

different countries.

Over four days, more than 3,000

French notaires, judges and

learned professors as well as

delegates from other jurisdictions

(including a number of UK-based

solicitors and French law

specialists such as us), were

challenged to address how daily

practices, rules and regulations

could be modified or updated to

cater for an increasingly mobile

international clientele.

Each day, a slickly produced

presentation in the main

auditorium focused on a particular

aspect of private international law

with a series of proposals being

put to a vote. Voting was restricted

to notaires. However, it was

fascinating to witness this process

whereby practitioners, experts in

their field, introduced the topic,

explained the background to each

proposal, took questions and

listened to observations from the

floor before holding a vote.

The outcome of each vote will

be detailed in a ‘record of

proceedings’ (un compte-rendu des

travaux) which will be produced

in due course and the proposals

adopted by the congress will then

be presented to the French

legislature. Where applicable, they

will also go before the EU Council

or other international bodies for

further consideration.

Aside from the daily

presentations, there were also

masterclasses covering a wide

range of topics with an

international element and a

vibrant exhibition hall packed

with an array of legal services and

support companies displaying

their wares and being kept busy by

the throng of delegates.

French marriage regime

Of particular interest hopefully to

readers, the Congress examined

the impact of the EU Matrimonial

Property Regime Regulation (EU

2016/ 1103 ) which came into

force on 29 January 2019 and

which allows British married

couples who have their permanent

residence in France to adopt a

French marriage regime to govern

the ownership of their assets.

The vast majority of notaires

voted in favour of a change of

their internal law to clarify that

married couples may choose any

French marriage regime, including

the French marriage regime of

universal community. This is a

useful estate planning tool for

British expats wishing to replicate

a ‘joint tenancy’ under English law

in order to ensure that on the

death of the first spouse the

surviving spouse would inherit the

deceased spouse’s share of the

French property and other assets.

Succession regulation

Another useful tool is the EU

Succession Regulation (2012/650

–“Brussels IV”) in force for deaths

occurring from 17 August 2015,

which creates a new freedom for

individuals living or owning assets

in an EU member state which has

ratified the Regulation, enabling

the individual to make a choice of

their national law to govern his/

her succession.

For UK nationals this means he/

she can, by making a will (either

French or English) elect English

and Welsh, Scottish or Northern

Irish law to govern who inherits

his/her assets on death. The

critical caveat to this new freedom,

however, is that this regulation

only deals with who may inherit

and does not change the potential

imposition of French inheritance

tax on beneficiaries who inherit an

asset in France.

There was, therefore, plenty of

discussion about the impact of

Barbara Heslop is Director and

Fabienne Atkin Associate Solicitor of

Heslop & Platt Solicitors and

French Law Specialists

Tel: 0113 393 1930

heslop-platt.co.uk

EXPERT ADVICE

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Brussels IV, various International

conventions and bilateral tax

treaties between France and other

countries – including the UK –

with it being stressed that the

main aim of the tax treaties is to

avoid double taxation of the same

asset in two separate jurisdictions,

as opposed to creating an

exoneration from any tax due.

Dual language

Another interesting discussion led

to the adoption of the proposal to

seek clarification from the French

government as to whether their

formal deeds (such as a property

sale and purchase deed) should be

produced in dual language so as to

be certain that its provisions are

fully understood and agreed by

both parties – buyer and seller –

when either or both parties do not

speak or fully understand the

French language.

While this is a positive step, the

proposal does not extend to the

initial contract which is the most

important document in a French

property transaction. It was also

stressed that the translation does

not replace legal advice.

With all the practical difficulties

and concerns which can arise

when a non-French national and/

or non-French speaking individual

is a party to a property sale or

purchase or is a beneficiary to a

deceased person’s estate in France,

the notaires were told to be

vigilant and to seek guidance and

assistance from their counterparts

in other countries.

It was also acknowledged that

the involvement of specialist

advisers from the jurisdiction of

the non-French speaking party is

important, while not diluting the

responsibility of the notaire to

provide advice and to ensure the

clients understand and agree to

what they are signing.

As for us, we feel honoured to

have been allowed to participate in

this most worthwhile event and are

delighted to have now met in

person notaires with whom we

have collaborated at a distance for

many years and to have forged new

links with other French notaires.

Vive l’Entente Cordiale! 

Everything you need to

know before making a

French will

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