French Property and Inheritance Law: Principles and Practice
The growing trend for purchasing property in France, either as a main or second home, has led to a corresponding need for a book which explains the French conveyancing system for lawyers trained in other legal systems. French Property and Inheritance Law offers practical guidance to lawyers and other professionals advising clients on property transactions and related matters in France including: buying, selling, and mortgaging land; the ownership of flats and leases; and the establishment of companies to own land as a means of avoiding French inheritance rules and to mitigate French inheritance tax. It unravels the mysteries of many features of the French system such as the marriage regime, the PACS, and sales en viager which can often be advantageous to non-French clients.
The book also covers all aspects of French inheritance law, including the rules of intestacy, the making of wills, and the inheritance rights of the surviving spouse and the rights of other members of the family. The author offers advice on how beneficiaries can avoid personal liability for the debts of a deceased and provides practical guidance on the administration of estates. A glossary and relevant legal precedents are also included. The author also writes regular updates on new key developments in French property law - please see the publication Solicitors' Journal for details of his articles on the subject.
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A PRACTICAL GUIDE TO THE MYSTERIES OF FRENCH LAND LAW
By Phillip Taylor MBE, Richmond Green ChambersI had just finished re-reading Peter Mayle’s ‘A Year in Provence’ when this remarkable book landed on my doorstep and I began to read it in more detail with some enthusiasm. Like many of my colleagues, knowledge of the principles and practice of French property and inheritance law has been limited to excursions across the Channel and my pupil master explaining the intricacies of buying an old farm in Normandy. Henry Dyson has produced a most readable book, which will appeal to a market that is continually expanding as more and more Britons buy property abroad. Now, we have all seen the horror stories on the television so is it really as bad?
The answer is, probably, no! The problem with French property law is the way in which they do things and Dyson has a splendid way of setting out French methods. To highlight this point, I read his statement about how the table of cases is created and how the court hierarchy operates. The best statement of all is ‘notwithstanding that the rule of judicial precedents is not known in French, it may well surprise the English practitioner that of over 180 judgments referred to …, more than 140 are those of the Cour de Cassation (the highest court in the land).
How to find the judgments
Also of great use are details of the address where one can obtain copies of the various judgments in Paris and an Internet reference for the adventurous: www.legifrance.gouv.fr. This information is most useful to ignoramuses like myself who had absolutely no idea how the system operates. This was my chance to improve my knowledge so I followed Dyson’s advice and referred to Part III of Principles of French Law by Bell, Boyron and Whittaker (OUP) and the chapter entitled ‘Studying French Law’. Suddenly things became much clearer such as the acceptance that French law is formalist with main emphasis on the written word. Dyson continues writing ‘ it is not without significance that an English transfer of land can be achieved by means of a single printed page whilst the majority of French conveyances are likely to run to over a dozen closely typed pages’!
No Equity jurisdiction
There is no equity jurisdiction in France, no system of binding precedents and the concept of the trust has no place in French law. A comment by Professor Malinvaud sums it all up when he writes:
“It may happen in fact that a rule of law, conceived in the abstract, proves to be unjust, inequitable, when brutally applied to a concrete situation.”
The Professor then looks at the judiciary (again created on a very different model) and he says, “It is to be hoped that the judge can reach a fair decision. Arbitrators, when so authorized by the parties can reach a fair decision. Judges do not have that power. Their judgments may be overturned if they openly apply Equity…. A Court of first instance is free not to follow even the most established rule of law; the worst that can happen will be that its judgment will be overruled on appeal”.
It is most useful to read and re-read Dyson’s introduction to gain the basic understanding of what this book is all about. It is clearly intended to enlighten the practising English lawyer who may be involved in French property transactions in their widest sense and with French inheritance law that is so different from the English legal system. Dyson also has the academic community in his sights which is to be applauded because both the French and German legal systems are being studied to a much larger extent in our British universities today – it becomes noticeable when you seen the number of textbooks on these subjects now available at Hammicks.
Structure of the book
The book is well structured with 39 chapters. The first chapter sets the scene with a description of the legal profession and – to state the obvious – should be read first! Then the author progresses through two distinct parts: Part 1 – Land Law
Immovable property in French
Immovable property in French law
The sale of land
Compromis de vente
Promesse de vente
Promesse de vente
Sales of land on plan
Domicile and residence
The English trust
Avoiding the reserve
The surviving spouse
Property owning companies
l0 The Societe Civile dAttribution
l2 Sales en viager
l3 Sales by auction lll
l4 Charges on property
l5 La copropriete
l7 Residential leases
l8 Business leases
l9 Powers of attorney
The regime matrimonial
2l Union libre
Land and its taxation