Recourse to a Notary During Undivided Ownership
– Role of the notary in undivided ownership
– Mandatory recourse to a notary during undivided ownership
– Mandatory use of a notary to draw up an undivided property agreement
Within the framework of undivided ownership, the intervention of a notary is compulsory for certain acts and, in particular, for the drafting of the undivided ownership agreement. First of all, let’s specify his role within the undivided property.
Role of the notary within the framework of an undivided ownership
The State appoints the notary. He exercises his functions under the control of the judges. As a ministerial officer, he has the power to authenticate the legal acts he draws up or receives; this authentication increases the probative value of the act in question.
Moreover, the notary is a legal professional. As an advisor, he or she has specialized skills in drafting deeds in contrast to the lay co-divisors.
The notary is thus advised for complex or far-reaching acts and advice on the management of the undivided property.
Attention: the intervention of a notary is expensive.
Obligatory recourse to a notary during an undivided ownership
The intervention of a notary is indispensable for certain acts:
– setting up a mandate with posthumous effect for the management of the joint ownership of the estate (more information: joint ownership and inheritance);
– liquidation of the matrimonial regime of divorced spouses who wish to get out of joint ownership (more information: divorce and joint ownership);
– purchase in undivided ownership and sale in undivided ownership;
– undivided ownership agreement.
Mandatory use of a notary to draw up an undivided property agreement
The spouses must draw up a liquidation statement of their matrimonial property regime during divorce proceedings, including a plan to divide their movable and immovable property.
However, in practice, the spouses do not have sufficient funds to buy out the other spouse’s share (a licitation). They may then quickly decide to sell the real estate, usually the family home.
To this end, the notary advises them to draw up an indivision agreement, which allows the spouses to continue their divorce proceedings while taking the time to decide what to do with the property.
The indivision agreement makes it possible to exclude this real estate from the community so that it will not be the object of the partition. Thus, the family home remains the property of both spouses after the divorce.
When spouses buy a property with a declaration of employment, if one spouse’s funds are greater than the amount invested by the community, the property is considered the spouse’s property whose funds are more significant.
Mandatory mentions of the indivision agreement
The legal framework of the undivided co-ownership agreement
The indivision agreement is governed by the law, which imposes the following rules:
– the undivided co-ownership agreement must be drawn up in writing. It must also be integrated into the draft liquidation statement and presented to the family court judge as part of the divorce file;
– the undivided property agreement must mention the undivided property and indicate the shares of each of the undivided parties;
– the duration of the indivision agreement can be determined (it cannot exceed 5 years, this period being however renewable), or indeterminate (in this case, it lasts as long as the partition has not taken place)
– if the undivided property includes real estate, the intervention of the notary is imperative, and he must carry out the formalities of land registration. The cost of the undivided property agreement is governed by the regulations governing the notarial profession and is proportional to the value of the property covered by the agreement.
Possible clauses of the undivided co-ownership agreement
– Clauses organizing the rules of management of the property during the undivided ownership:
1. the distribution and reimbursement of expenses and works;
2. the enjoyment of the property between all the undivided co-owners (including the determination of an occupation indemnity if a spouse occupies the property in the context of the divorce)
3. the organization of the assumption of responsibility for real estate loan payments, if applicable
– Clauses relating to the conditions of appointment, and the powers of the manager of the undivided property, if applicable.
– The clauses organize the fate of the shares of the deceased undivided co-owner.
And in all of this, one must not forget the cost of the intervention of the notary, whose intervention is obligatory if the undivided property includes one or more real estate assets and must collect various taxes and fees. In practice, the costs related to the drafting and publication of an undivided agreement are calculated according to the price indicated in the notarial deed, together with the contribution of real estate security, the taxes of real estate publicity and the various disbursements (land registry, etc.).