Introduction
The acquisition of real property in France by an expatriate or a non-resident raises practical and legal difficulties, particularly when it comes to signing the deed of sale. Remote notarised power of attorney is a common solution, but its validity is strictly regulated. The judgment handed down by the Aix-en-Provence Court of Appeal on 14 July 2022 (No. 21-15.903) provides essential clarification on the required formal and substantive conditions. As a lawyer specialising in property and land law, I offer you a detailed analysis of this decision and practical advice to secure your acquisition.
1. The context of the case and the facts
In this case, a French national residing abroad (outside the EU) had granted a power of attorney to an estate agent to sign a preliminary sale agreement and a deed of sale. The power of attorney was drawn up as a private deed, then legalised by the French consular authorities. The vendor challenged the validity of the sale, arguing that the power of attorney was not notarised and that the estate agent had exceeded his authority.
2. The decision of the Court of Appeal
The Court of Appeal annulled the sale on two main grounds:
- Absence of a notarised power of attorney: For a deed of sale (a notarised instrument), the power of attorney must itself be authentic, i.e., received by a notary. Simple consular legalisation does not confer the necessary authenticity (Article 1374 of the Civil Code).
- Lack of special authority: The power of attorney must specify precisely the property, the price and the conditions of the sale. A general or imprecise power of attorney is insufficient (Article 1988 of the Civil Code).
The court recalled that remote notarised electronic signature (via a videoconferencing system) has been possible since Decree No. 2020-1422 of 20 November 2020, but that it must comply with strict technical conditions (strong authentication, recording, etc.).
3. Legal analysis: the applicable texts
3.1. The form of the power of attorney
Article 1374 of the Civil Code provides that a notarised instrument is one received by a competent public officer. For a deed of sale, the notary is the public officer. The power of attorney granted to sign a notarised instrument must therefore itself be notarised, unless the law provides otherwise. Article 1988 of the Civil Code requires that the mandate be special for acts of disposal (sale, mortgage).
3.2. Remote power of attorney
Decree No. 2020-1422 introduced the possibility of receiving a notarised instrument remotely by videoconference. The notary must verify the identity of the principal, the quality of their consent and the electronic legalisation of their signature. This procedure is particularly suitable for expatriates, but requires a reliable internet connection and adequate equipment.
3.3. Taxation of acquisitions by non-residents
Non-residents are subject to specific tax rules:
- Transfer tax: Standard rate (approximately 5.8% for existing properties, VAT for new properties).
- Capital gains tax on property: Upon resale, non-residents are taxable in France, with an allowance for length of ownership (Article 150U of the French General Tax Code).
- Real Estate Wealth Tax (IFI): Applicable if the net taxable real estate assets exceed €1.3 million (Article 964 of the French General Tax Code).
4. How Maître Cécile Zakine can assist you
Drawing on my experience in private international law and property taxation, I offer tailored support for expatriates and non-residents:
- Verification of the validity of the power of attorney: Analysis of formal and substantive conditions, advice on the use of notarised videoconferencing.
- Negotiation and drafting of deeds: Assistance in drafting the preliminary agreement and the deed of sale, with protective clauses (conditions precedent, warranties).
- Tax optimisation: Study of the applicable taxation according to your country of residence (tax treaties, tax credits).
- Dispute management: In the event of litigation (nullity of sale, abuse of mandate), I represent you before the courts.
Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.
5. Practical advice to secure your acquisition
- Have a special notarised power of attorney drawn up by a French notary, even remotely, in compliance with the 2020 decree.
- Specify the property, the price, the conditions precedent (obtentio
