Legal Counsel in European
Real Estate Conveyances:
Brokers and Notaries
Ola Jingryd, Jur. dr.
Malmö University
Background

Three legal families in the EU
◦ Civil law, common law, Scandinavia

Three/four Basic Models for Conveyances

Two key players
◦ The Swedish broker and the Latin notary
General observation
The Swedish broker and the Latin notary
seem to perform, in great part, the same
functions in real estate conveyances, and
to have similar duties.
Licentiate thesis (2008)

Compared the Swedish broker and the
Latin notary with respect to:
◦ Relation towards buyer and seller
◦ Tasks and duties performed

Swedish law compared to nine notary
countries:
◦ Argentina, Belgium, Brazil, France, Germany, Mexico,
Portugal, Puerto Rico, and Spain
Licentiate thesis, findings

Duty of impartiality

Counseling role

Contract-engineering
Plans for step 2

Law-and-economics analyis
◦ Transaction costs
◦ Market failures

Empirical studies difficult to effectuate
Doctoral thesis

Compare duty to counsel

Legal study, not ”empirical” study

Sweden and France
Swedish Conveyance Process

No formalities except written contract
signed by the parties
◦ 4:1-3 of the Land Code (1970:994)

Traditionally two deeds
◦ Contract
◦ Bill of sale – on day of possession

Title registration at Land Registry
◦ Declaratory only
Swedish Conveyance Process

No professional intervention required

In practice, however:
◦ More than 90 % of all conveyances are
accomplished through brokers
French conveyance process

Pre-contract – avant contrat
◦ Binding between buyer & seller, not to third
parties
◦ Different kinds: compromis de vente, promesse
de vente, etc.

Sales deed – acte de vente
◦ Acte authentique – notarized
◦ Binding to third parties, enforceable

Title registration declaratory
Duty to counsel – Swedish broker

Legal basis:
◦ Estate Agents Act (2011:666), esp. 8, 16, 21 §§
◦ Case law from civil and administrative courts
as well as the Estate Agents Inspectorate
Duty to counsel – Swedish broker

Duty to verify
◦ Right of disposal, encumbrances, joint facilities
◦ Not zoning & planning! 
◦ Complemented by duty to investigate

Duty to disclose information
◦ Concerning the property and other relevant
factors connected to the transaction
Duty to counsel – Swedish broker

Duty to advise
◦ Matters of import to the transation
◦ Legal, financial, technical

Contract-engineering
◦ Tailor the deeds to the needs of the
transaction at hand
◦ Intertwined with duty to advise
Duty to counsel – French notary

Legal basis:
◦ Art. 1382 of the Code Civil
◦ Extensive case law from the Cour de
cassation
Duty to counsel – French notary

Duty to verify
◦ Including zoning & planning! 

Duty to disclose information

Duty to advise

Contract-engineering
Implications, future research

Economic effiency

Institutional robustness
◦ Does it work?
◦ Can it work
◦ Incentives!

Part of housing market
◦ Self-owned homes large portion of total market
◦ Access to housing on fair terms