Stefano Lucatello joint senior partner at the International Property Law Centre. For further information visit www.internationalpropertylaw.com
Value of a solicitor when buying on the Continent
Q. I'm considering buying a resale village property in France or Italy and am trying to budget for all the fees that come with purchasing. A friend who owns in France advised me not to waste money on a lawyer as on the Continent notaries do all the paperwork for you. Is this true and is using an independent lawyer really necessary?
Ollie Hodges, by email
A. In France and in Italy the notaire and the notaio, respectively, are public officers to whom the law reserves the activity of drafting and registering the final deeds. It is important to bear in mind that most notaires or notaios rarely give preliminary advice because of their neutral position in the transaction (they act for the seller and the buyer); they are merely required to ensure the transaction complies with French or Italian Law. Furthermore notaires and notaios do not always understand English. In addition, prior to the signature of the final deed a buyer is requested to sign a preliminary agreement. Given that such agreements are binding, using a bilingual solicitor will ensure a smooth and efficient transaction, conducting enquiries and advising upon the differences between UK and France and Italian law. For instance, France and Italy have “forced heirship” rules that require certain portions of your real estate to pass to predetermined heirs, with only limited entitlement for the surviving spouse. It is extremely important to use an independent solicitor to advise you prior to the purchase so that in the unfortunate event of your passing, your wishes and not the “word of the law” is followed. Therefore anyone looking to buy a property in France or Italy should make sure they are represented by a solicitor with a proven track record of managing property purchases in France and Italy.
Signing a reservation contract
Q. I'm constantly advised not to sign any contracts until they have been checked by a lawyer. Is this even the case if I'm signing a reservation contract? I ask as recently I went to visit a new development in Spain and was told by the agent that I'd need to pay a deposit of £2,000 and sign a reservation contract on the spot if I wanted to reserve one of the apartments.
Ruby Maynard, by email
A. To buyers from the UK who are used to solicitors preparing contracts of sale, it may come as a surprise to be presented with a contract by an estate agent. Many agents prepare contracts and the quality is highly variable. Even though they may provide a translation, do not rely on this. You should also be aware that it
is often what is left out of the contract which causes problems rather than what is in it. For this reason the reservation contract could effectively be already a legally binding agreement and your only opportunity to protect your interests will be to have the contract carefully looked at by someone who is experienced and competent in overseas legal matters and whose interest is to protect you, rather than selling a property.