The activity of agent is part of the traditional fields of activity of the lawyer who advises, assists and defends his client in all acts of civil life, yet all the possible aspects of his intervention are not yet commonly apprehended. It must be said that the legal profession took a long time to invest in certain fields of activity, in particular that of real estate.
A SUPERVISED ACTIVITY STRICTLY BY REGULATION NATIONAL INTERIOR
The activity of agent in real estate transaction, open to lawyers since the Hoguet law n ° 70-9 of February 2, 1970 which regulates the activity of real estate professionals and frames the activities of purchase and sale of real estate, does not s is developed only on the basis of an ethical opinion of the Conseil National des Barreaux adopted by the general meeting of February 5 and 6, 2010. For a long time, the profession has taken into account that its ethical rules exclude canvassing and the commercial aspect that can accompany such a mission. This is the reason why the activity is strictly framed by the National Rules of Procedure of the profession. The lawyer who wishes to exercise this activity must make a declaration to the order to which he belongs, by letter addressed to the President of the Bar.
A MANDATORY ACTIVITY ACCESSORY
This activity must be exercised incidentally, occasionally and in compliance with the essential principles of the legal profession. The intervention of the lawyer in real estate transactions is only justified by the added value that he brings through his legal skills and his ethical rules. The real estate transaction mandate is always part of a broader mission entrusted beforehand or at the same time. This may be the lawyer intervening in the context of divorce proceedings or an estate which receives the mandate to find a buyer for the building dependent on the post-community or inheritance joint ownership. His overall knowledge of the file will allow him to understand all aspects of the operation and best advise his client.
Such a mandate can also be envisaged within the framework of a company restructuring operation. The business manager who is accompanied by his lawyer throughout his project can entrust him with the mandate to sell his professional premises, or even to find others. The customer therefore has the certainty that the transaction will be legally secure from start to finish. The real estate transaction mandate is always accompanied by legal support.
This activity must be carried out on an ancillary, occasional basis and in compliance with the principles of the legal profession.
AN ACTIVITY IN RESPECT OF THE ESSENTIAL PRINCIPLES OF THE LAWYER PROFESSION
The terms of his oath must always be at the heart of the intervention of the mandatary lawyer in real estate transactions. Whether advising or defending, he must never forget the formula which opened the doors of the profession to him: “I swear, as a lawyer, to perform my duties with dignity, conscience, independence, probity and humanity”. The lawyer is bound to respect professional secrecy. Although mandated by his client, he cannot free himself from his ethical obligations vis-à-vis the other parties to the act in terms of confidentiality and professional secrecy.
He must endeavor to respect the rules of conflict of interest: he can only intervene for one of the parties and only receive fees from that party. If he is required to draft deeds during the transaction, he is required to comply with the rules relating to the drafting of deeds and in particular to: ensure the validity and full and complete effectiveness of the deed ; refuse to participate in the drafting of a manifestly illicit or fraudulent act. If the lawyer is the sole writer, although acting within the framework of his client’s mandate, he is bound by an obligation to advise each party to the act. He will have to ensure the balance of the interests of all the parties.
It is excluded that the lawyer can act as an intermediary on behalf of two clients
AN ACTIVITY FRAMEWORKED BY A MANDATE
The agent lawyer in real estate transactions practices within the framework of a civil mandate in the name and on behalf of his client. It is excluded that he can act as an intermediary on behalf of two clients: he only represents and negotiates for his client. On the other hand, he can very well intervene within the framework of a co-mandate with the colleague intervening for the other part. The most concrete example of this type of intervention is in matters of divorce by deed countersigned by lawyers (in other words, divorce by mutual consent).
The spouses can agree to entrust their lawyers with the mandate to find a buyer for the community building, the price of which will then be shared out as part of the liquidation of the spouses’ property interests. Each lawyer receives a mandate from his client and will implement it jointly with his colleague. The mandate must be established in writing. It is strictly governed by the provisions of articles 6.3 and 6.4 of the National Internal Regulations. It must contain, in addition to the elements of identification of the mission, the mention of its duration and the method of calculation of the fees. The rules of the profession and case law exclude remuneration based solely on the result obtained. This solution is logical when the mission is not limited to the sole search for a buyer but is part of a broader mission which can be legal, fiscal or social.
AN ACTIVITY GUARANTEED BY THE PROFESSIONAL LIABILITY OF THE LAWYER
As soon as the activity of agent in real estate transactions falls within the scope of authorized activities, it is covered by the professional civil liability insurance taken out by the bars. In the event of an operation exceeding the cover, the lawyer can take out additional cover and thus secure the operation.
The intervention of the lawyer should not be confused with that of a real estate agent or a notary
AN ACTIVITY SECURED BY REPRESENTATION GUARANTEE FUNDS
It is the lawyer’s responsibility to deposit with the lawyers’ pecuniary settlements fund (CARPA) the funds, effects or securities received within the framework of his mission as “agent of real estate transactions”. He is then required to carry out, as always, the necessary concordance examination concerning the principals and the beneficiaries.
A COMPLEMENTARY ACTIVITY THAT OF OTHER REAL ESTATE MARKET PLAYERS
The intervention of the lawyer should not be confused with that of a real estate agent or a notary. This is why all three of them can work together in the context of a real estate transaction, their individual expertise further securing the operation. Through his knowledge of litigation risk, the lawyer brings real added value and can intervene upstream to prevent a transaction from failing. Lawyers involved in the auctions at the bar of the court have long been able to apprehend these interactions which prove to be positive for their clients who then benefit from a global offer of services. The same applies to the mandate for real estate transactions. The lawyer’s legal expertise and his knowledge of his client’s situation (divorce, succession, business transfer, fiscal, social and legal environment) allow him to have a global vision of the operation. Many disputes could thus be avoided in the context of real estate transactions, if the lawyer was consulted upstream.
AN ACTIVITY ENCOURAGED BYTHE PROFESSION WITHIN THE REAL ESTATE MARKET OF LAWYERS
Because it is in the interest of clients to be accompanied by efficient and effective legal professionals, 28 Bars, including that of Bordeaux, have come together in an association and have thus created the Real Estate Market for Lawyers , digital and logistics platform dedicated to the activity of agent in real estate transactions (https://www.marcheimmobilierdesavocats.com).
The lawyers who are members of the association are trained and have the means to support their clients within the framework of their mandate. Partnerships have been negotiated at the national level in order to be able to offer lawyers’ clients of the Lawyers’ Real Estate Market premium advertising packs, access to land experts, selected diagnosticians, as well as a documentary base. The objective of the association is, under the ethical control of the orders, to provide lawyers with effective tools that they can put at the service of their client and develop this activity so that the lawyer becomes a natural partner in the real estate transaction. .