From real estate tax advice to the sales mandate for the lawyer

Par Amandine FAUX-CASTELNAU, lawyer. In a classic way, the lawyer in real estate law has a judicial mission, but also legal. From now on, he can also defend your interests as part of a real estate transaction agent mission. And thus be entrusted with a mandate of sale, research or rental management.

The original mission of your real estate lawyer

Contractual and legal certainty

Whether it’s drafting a contract or tax-advising your client, your real estate lawyer is competent to answer all of your legal requests outside of any legal dispute.

Thus, it can be:

  • The update or initial drafting of the co-ownership regulations
  • Drafting a residential lease or commercial lease contract
  • The elaboration of a transfer/acquisition of lease rights or goodwill

The drafting of a contract is necessarily accompanied by advice in terms of strategic choices within the present clauses.
It is absolutely necessary to prevent conflicts by drafting legally sound contracts, and thus facilitate any subsequent legal defence upstream.

Judicial defence

Before all jurisdictions, and nationally, the lawyer assists and defends you in all your disputes in connection with a property.

Thus, and not exhaustively, it can be disputes:

  • Building permit disputes
  • The implementation of the responsibilities of perfect completion, proper functioning, ten-year
  • Recovery of unpaid condominium fees
  • Actions challenging the resolutions of a meeting of co-owners
  • Rental disputes (non-payment of rent, termination of the lease, eviction, inventory …)
  • Tax optimization advice on a real estate transaction
  • Disputes over non-performance of a sales compromise

The explosion of litigation related to problems in drafting the sales agreement (essential clauses absent, lack of sufficient guarantee for one or the other of the parties, insufficient information of the parties …) has thus led our Firm to accompany its clients upstream of a dispute.

A mission still unknown, the attorney agent in real estate transactions

Since the Hoguet law, lawyers have been able to exercise the activity of agent in real estate transactions without fulfilling the conditions required for real estate agents “in consideration of the control of their professional activity as well as the financial guarantees they offer for the exercise of this activity” (Article 2 of the Law).

However, it was only in 2009, and thanks to an adaptation of the National Rules of Procedure of Lawyers, that lawyers gradually communicated and conquered this discipline.

However, it is still largely unknown.

The role of the agent lawyer in real estate transactions

As a legal professional, the lawyer is the natural agent who accompanies his clients in all acts of civil life, and in particular in all actions related to real estate law as described above.

In general, he can intervene on behalf of a client in all stages of a contractual process. In real estate matters, its mission can therefore go beyond the classic framework of legal and strategic advice, as well as the drafting of deeds, but also include the search for the contracting party and the negotiation of the contract with him.

Thus, in addition to drafting the sales agreement and ensuring legal certainty, accompanied by valuable advice, your lawyer may be responsible for looking for your co-contractor, whether it is a buyer, a seller, a tenant or a lessor.

The advantage for the client is therefore obvious: he has only one interlocutor (and a professional not only of the law but also of real estate), from his initial wish (sell, rent, acquire), until the realization of it, having ensured legal certainty and having a thorough knowledge of the situation if a legal dispute were to arise.

Call on a real estate expert in addition to the lawyer

How essential is the intervention of a real estate expert?

A real estate investment is one of the expensive acquisitions. For this reason, it is necessary to carry it out with full knowledge of the facts. However, to ensure that you only buy a property that meets the standards and perfectly meets your needs. However, these specific aspects can only be carefully detected by a Bordeaux real estate expert. The latter will be responsible for checking hidden defects, namely obsolete equipment, lack of insulation, non-compliance with construction standards, cracks, etc.

As a reminder, the technical inspection of a building is carried out in several stages. Thus, if you want to know what real estate expertise consists of, there is no need to completely deepen the field of the real estate market. Through the following lines, you will have an overview of how to proceed.

  • A real estate expert intervenes before the finalization of a sales contract;
  • it checks the condition of the property starting with the insulation, cracks, roofing and ending with dripping and heating system.

In short, this real estate professional acts as an advisor to better invest in the acquisition of a property. It is also of great help if it is a question of estimating a building rented or sublet. Not to mention important operations such as the sale and purchase of land or a house in Bordeaux.

Specific rules that protect the customer’s interests

Be careful, the lawyer is neither a real estate agent nor a notary. And this is surely the major advantage for the client who would like to entrust the sale of his property or its future acquisition to a real estate professional.

The attorney for real estate transactions brings a legal added value and his ethics. This added value must not be reduced to the drafting of the sales agreement alone. It must be part of the analysis of the legal situation of the principal, the transaction and the legal consequences thereof.

If he is not subject to the Hoguet law relating to real estate agents, it is because the lawyer must respect the essential principles of his profession. All ethical rules, protective but binding, are a guarantee of responsibility and efficiency for the benefit of the customer.

The prohibition of a double mandate

Thus, for a better protection of the interests of his client, and in accordance with a principle governing all his missions, the lawyer is subject to the rules of conflict of interest: he will only be able to intervene for one of the parties.

Unlike the real estate agent, the lawyer will therefore not be able to receive a double mandate of search and sale for two opposing parties in the same real estate transaction.

Similarly, the legal skills of a real estate agent are, in an extreme majority of cases, very limited. This makes sense since it is neither his training nor his profession. A very large number of sales agreement documents drawn up by a real estate agent (even taking inspiration from the models of certain organizations) are well below the legal certainty provided by a legal professional and are sources of significant litigation.

Unlike the notary who can represent the seller and the buyer on a deed, the lawyer intervenes exclusively for the interest of a party. The defence of the interests of his client remains the very essence of the lawyer’s intervention.

Nevertheless, and because he is a lawyer, the lawyer must ensure full legal information to the opposing party.

Specific fees on successful transactions

Regarding fees, the real estate transaction contract signed between the lawyer and his client must indicate the method of calculation of the fees and their exigibility. These fees are free but often represent a percentage of the value of the property in question.

If the transaction is not concluded, the lawyer will only be able to collect fees for any deeds written but not for the time devoted to research and negotiation. The client therefore does not take any financial risk in entrusting his lawyer with the sale or acquisition of real estate.
The main interest of using a lawyer is that he will be present at all times of the transaction in order to secure it and that he will be able to defend his client in the event of a dispute.

It is often during an existing dispute that the lawyer has the opportunity to inform his client about this as yet unknown mission, such as divorce proceedings, the settlement of an estate, the transfer of a business, or the specific mission of advising in the preparation and legal, tax and social support of a transfer, lease, acquisition.

Amandine FAUX-CASTELNAU
Lawyer at the Bordeaux Bar

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