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of the levelling effect of war-time bombing, refer–
ence to the
cadastre
is compulsory.
Account of title for thirty years
There follows the
origine de propriete,
a con–
densed, but often very lengthy, account of the
title for the last thirty years. This is the part of
the document which really calls for skill in
its
preparation; in the writer's opinion, investigation
of title in France is probably even trickier than it
is in England. The main reason is that the title is
affected by interests of the proprietor's family, in
particular his wife's interest under her marriage
contract, and there is no equivalent of the 1925
legislation to keep these matters off the title. For
this reason every party to the deed states whether
he is married, and if so under what
regime,
i.e.,
community of property, separation of property,
or some other of the standard regimes.
The document usually contains a reference to
les conditions ordinaircs ct de droit,
which, like
the celebrated words "beneficial owner", invoke
the standard conditions implied by law, in this
case the Civil Code. The price is named, and it
is stated whether or not it is all paid on com–
pletion
(paye comptant)
or whether some of it is
to be paid off by instalments. The latter practice
is far more common in France than in England,
and is facilitated by the legal machinery of the
privilege du vendeur,
or vendor's lien, which gives
the unpaid vendor in effect an automatic first
mortgage on the property, coupled with powers
of easy realisation of the security. This may have
something to do with the fact that French notaries
seem to be hardly troubled at all with the problems
of chain transactions and co-ordination of com–
pletions which bedevil English conveyancers; a
more important reason for this happy situation
may be the different concept of the notary's role
already referred to, whereby such problems are
the parties' own affair.
Easements
All easements known to the vendor are mentioned,
and express reference is made to the result of the
enquiry made by the notary of the local office of
the Ministere de la Construction as to planning
matters;
the certificate
issued by
this body
is
usually annexed to the deed itself. At the end of
the document appear the signatures of the parties,
affixed in the presence of the notary, and the
notary's own signature.
Registration of Documents
The document now goes first to be
enregistre,
and
secondly to the Bureau des Hypotheques. The
object of the first proceeding is largely fiscal; the
droits d'enregistrement
payable are roughly the
equivalent of stamp duty, on a scale based on the
value of the property, although the registering
authority takes a copy of the document which can
be referred to later to prove
its existence and
contants. The Bureau des Hypotheques also re–
quires a copy of the document, and it is this copy
which constitutes notice to third parties of the
transaction. The most characteristic aspect of
French procedure is, however, the ultimate fate
of the original document; this is always retained
by the notary, and the parties are supplied only
with copies, called
expeditions,
and one master
copy, called the
grosse.
The importance of the
grosse
is that it bears the
formulae executoire,
a
direction by the notary, in the name of the French
Republic, to all public officers, gendarmes, etc.,
to enforce the contents of the document at the
request of the bearer. Thus a creditor whose debt
is secured by a notarial act can put in motion
seizure of the debtor's property without having
to obtain a court order. When the practice of a
notary changes hands, all the original documents,
called
minutes,
are passed on, and can in Theory
be referred to more or less indefinitely. The prob–
lem of
lost deeds
is not entirely unknown
in
France, but this system does keep it to a minimum.
It is arguable that this system led to the early-
development of a country-wide system of local
registries of deeds, the Bureaux des Hypotheques.
In England, the notion that the deeds represented
the property soon led to the idea of mortgage by,
or coupled with, deposit of deeds. Such an arrange–
ment would have been, broadly speaking, impos–
sible in France, since all original "deeds" remained
with the notary. The only other obvious system of
protection of lenders is that of registration; al–
though today all documents affecting land are
registrable, the office
is still called the Bureau
des Hypotheques, the
hypotheque
being the equiv–
alent of a mortgage. The Bureaux des Hypotheques
today are local deeds registries, which suffer from
the disadvantage that their indexes are by names
of proprietors, not by properties. This disadvan–
tage is tempered by the rule that all registrations
lapse unless renewed every five years; would that
the Land Charges Act had contained a similar
provision !
At the present time, a change-over to
registration by properties is being effected, partly
for convenience, and partly in imitation of the
system of the
hvrie fonder
(a sort of land certi–
ficate)
instituted
in Alsace-Lorraine during
its
incorporation into Germany.
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