Estelle Hays (A child proceeding by her litigation friend, Frank Howard) v Julie Hays

Hearing date: 10 September 2015

Introductory

This is a claim under CPR Part 8 by Estelle Hays, a minor acting by her litigation friend, Frank Hancock (for whom a certificate of suitability has been supplied), against her mother Julie Hays. The claim form was issued on 27 February 2015. It is however a friendly claim. The Defendant filed an acknowledgement of service on 12 April 2015, indicating that she did not intend to contest the claim. The matter was not heard in private, and I have not been asked to anonymise this judgment. Having considered the matter I see no need to do so, notwithstanding that it concerns a minor.

In these proceedings, Estelle seeks an order from the court that her mother be appointed as her agent to enter into a contract of sale of her interest in a French immovable, an apartment situated in the first arondissement of Paris, in France. (Instead of using the domestic English law terms 'real' and 'personal' in relation to property rights, I refer throughout this judgment to immovable and movable property, because (i) this case deals with land in France, (ii) they are the usual terms employed by English lawyers dealing with private international law, and (iii) they are more easily capable of being translated into French and other languages than the technical legal terms 'real' and 'personal'. At the same time, whilst they are close enough for present purposes, it should be borne in mind that they are not exact equivalents.)

Estelle's parents were formerly the co-owners of two immovable properties in France, the one in Paris just mentioned, and another in Nice. Rather surprisingly, it is not made clear in the papers before me whether they owned these properties en tontine or en indivision, and if the latter in what shares. The former means that the original purchase of the property is subject to a special provision that the property in effect belongs from the beginning to the survivor of the co-owners. In functional, though not legal, terms it resembles the effect of a joint tenancy in English law. I know from my own professional and personal experience that it is rare in France, and practically unheard of amongst ordinary French people. Co-ownership en indivision in French law, on the other hand, is rather like legal tenancy at common as it existed in English law prior to 1926.

Tragically, Estelle's father died in 2007. If Estelle's parents had owned the properties en tontine, they would presumably now belong to the Defendant, Mrs Hays, absolutely, and there would be no problem. She could sell either apartment on her own. But the notary dealing with the proposed sale of the Paris apartment thinks there is a problem and that Estelle has an interest in the apartment which must be dealt with. Since it is the duty of the notary's duty to ascertain the title to the property, I must assume that the notary considers that Estelle's parents owned the apartment en indivision, or at any rate that the effect of any tontine clause is overcome by the requirements of public policy that Estelle must inherit a minimum share of the patrimony of her father.

At all events, when Estelle's father died, his will left to the Defendant so much of his share in the two French properties as he was permitted to do by French law. The evidence of French law in the papers is that Mr Hays was only able to deal by gift inter vivos or will on death with a maximum of one quarter of his half share in each property, because the other three quarters had to be left to his daughter Estelle, as her indefeasible inheritance right, making her a so-called "forced heir". If Mr and Mrs Hays were co-owners in equal shares, this would leave the Defendant with five eighths of each property, and Estelle with the remaining three eighths. Unlike English law, French law permits a minor to own immovable property directly in her own name.

When I first read the papers at the end of June 2015, I indicated to the Claimant's solicitors that the claim was not straightforward, and suggested that the parties appear before me. I therefore heard counsel for Estelle in support of the claim and the Defendant in person at a hearing on 10 September 2015. As mentioned above, the Defendant was equally anxious to secure an order that would enable the sale of the property to go ahead. At the hearing I said that the problem seemed to be that the French court would not authorise this transaction on behalf of the Claimant because she was resident in England, and was looking to the English court to do so. I therefore suggested that the parties should seek to obtain evidence of how the French court would approach the problem if the Claimant were habitually resident in France.

The Claimant's solicitors having made enquiries were unwilling to spend the significant sum required by a French lawyer whom they consulted, and so eventually in December sent me two published articles dealing generally with the problem. These do not however assist at all. They do not contain any useful information about what a French court would do if Estelle were habitually resident in France.

At that point I could have simply rejected the claim, on the basis that I did not have the evidence I needed to resolve it in favour of the order sought. But given the increasing importance of problems such as this in modern times, and the dearth of information apparently available, in all the circumstances I decided to look into the matter myself, with the assistance of a French avocat who gave me some advice on French law. I refer to this further below. But the course which I have been obliged to take does mean that more time has elapsed than I would have liked.

The evidence

The factual evidence was supplied by a witness statement, dated 23 February 2015, of Mr Frank Howard, the Claimant's litigation friend. Unusually, in addition to what Mr Hays says himself, his statement exhibits a written advice from English counsel with (so far as I can see) no qualification in French law, but who proceeds to deal with both the factual circumstances of the case and the arguably applicable French law. Since the claim is not opposed, indeed the Defendant also wishes the order to be made, I have taken this further information into account.

The factual evidence taken altogether satisfies me that the Paris property is in such a poor condition as to need considerable work on it even to make it capable of being let commercially, so as to bring in an income. Mr Howard says on advice from an estate agent that this will cost some 25,000 to 30,000 Euros. He also satisfies me that Mrs Hays and Estelle do not have the funds available to carry out this work. In any event, estate agents do not consider that the apartment, even renovated, would be easily lettable, as there is no lift and it is on the fifth floor of the building.

Mrs Hays has therefore reached the conclusion that, despite the emotional attachment that she and Estelle have for the property, the best thing to do is to sell the Paris property and to use the proceeds both to improve the Nice property and also to spend some of them on Estelle's education. The evidence is that Estelle herself agrees with this course. She is now seventeen years old, and, whilst she remains a minor in law until her next birthday, her views clearly should be taken into account.

A Paris estate agent has inspected the Paris property and prepared a report on it. This concludes that the property requires renovation, and is worth between 270,000 and 290,000 Euros, but recommends an asking price of 310,000 Euros, in case a purchaser falls in love with it and is willing to pay a higher price (the French original of the report puts this rather better than I can in English). In each case the value is stated to be net to the seller, so the actual price to the buyer will be higher, to take account of agent's and notary's fees, and taxes. However, in an email dated 23 February 2015 from the same agency, the price quoted is 276,000 Euros, including an 11,000 Euro agency commission, so leaving a net value to the seller of 265,000 Euros. A purchaser has in fact now been found, willing to pay 275,000 Euros for the apartment, before taxes and costs.

The problem stated

But in order to sell the property it will be necessary to enter into a contract of sale. The formalities for selling a French immovable are of course governed by French law, and a notary will be required in order to receive the contract and to give the requisite publicity to the act of sale. (For clarity I add also, though it does not affect the substance of the case, that unlike English law, which separates the contract and the conveyance, French law normally runs them together in a single act.)

Under French law, on the factual assumptions made above, Estelle owns a share of the property, but being a minor similarly cannot herself contract to sell her interest. As I explain below, under French law in such a case the French court would be able to appoint a person with parental responsibility, in this case her mother, to enter into a contract of sale on her behalf. However, under English law Estelle as a minor cannot contract to sell land, nor can she appoint an agent to bind her: see Doe d Thomas v Roberts (1847) 16 M & W 778.

The evidence in this case suggests that the notary is seeking an order of the English court in order to protect the purchaser against any claim by Estelle in the future. I infer that this is...