You Can’t Always Get What You Want

April 2016

You Can't Always Get What You Want" is a song by the Rolling Stones on their 1969 album Let It Bleed.Written by Mick Jagger and Keith Richards, it was named as the 100th greatest song of all time by "Rolling Stone" magazine in its 2004 list of the "500 Greatest Songs of All Time".

This is true for everybody no matter what the situation is. If only people were reasonable regarding their wants and if only they could choose wisely! Being a foreigner adds a considerable twist because foreigners are uprooted from their homes, what they are viscerally attached to. Therefore they miss the life they had before on many occasions: home, family, a social status, the ability to fit in, favorite foods, and so many other things. I find it interesting to see how often the craving for a particular food is stronger than the desire to see family members. This shows how deep-seated these physical and emotional yearnings are. This can be summed up this way: " why can't I get this here?" Being an immigrant always means being torn apart and these hankerings are just the most visible illustration. To add insult to injury, the laws of the country make it even harder for foreigners to get many things, and this is very true about France. I have countless examples of this. For example, there is the legal obligation to carry an ID in France, except that for the French nationals, the first issuance and the renewal alike of the carte nationale d'identité is so much easier to get than any carte de séjour, which is the equivalent for foreigners in France.

In this issue, a minor change in URSSAF regulation has created a nightmare for immigrants because the prefecture has not taken it into consideration. In this situation, the foreigner is caught between a rock and a hard place when each authority applies its own rules and ignores the difficulties created for the foreigner. Then what appears to be a positive development, such as the creation of a multi-year residency card ( carte de séjour pluriannuelle),is seen by the NGOs who defend the rights of foreigners as a possible regression because it could make it even harder to obtain the ten-year carte de resident. A tiny detail shows that this concern is plausible, since the new cards will last up to four years when the previous ones lasted for three, but cannot be renewed which means the benefits of this status last for only four years instead of six. I do not see this as progress.

The Rolling Stones played very recently in Cuba in front of half a million people. Public opinion regards this as excellent news, maybe because the Stones attracted such a large crowd although they had never played in Cuba before; or maybe it is that Cuba has changed so much in the "right" direction that the Stones were allowed to play; or maybe it is the fact that the members are all past retirement age and yet are still playing strong. Maybe the Stones got what they wanted after all.

 

CHANGE IN MY BUSINESS
Things are changing fast. I was hoping that I could keep the offices that Alliage SARL rents but the cost is too high if there is no tenant in the other two office space areas, and I did not want to spend too much time managing their rental, which always bring complications. Renting out one set of offices would have been OK, but not two, I finally decided.

So I will soon be looking for a new office. Here are the characteristics I have in mind:

  • Very quiet, which means in the courtyard rather than on the street
  • On the ground floor or one floor up, or in a building with an elevator
  • Monthly rent no more than about 1,000€ TTC
  • One room or, at most, two rooms, about 30m2 to 50m2
  • Completely independent entrance, not shared with other offices
  • About five minutes’walk from a major metro stop.
  • That would be a pretty good start.

 

NEW URSSAF REGULATION HAS DRAMATIC EFFECT ON IMMIGRATION ISSUES
Since time immemorial in France, self-employed status has been obtained by professional who sell services or expertise (profession libérale), merchants who sell goods (commerçants) or craftsmen (artisans) .

Then, under a law passed on August 1st 2003, the tax administration created a very simplified fiscal status defined as '93micro'94 that did not require keeping a full set of books. For the profession libérale it was régime special micro BNC, which stands for bénéfices non commerciaux; the others had micro BIC, which stands for bénéfices industriels et commerciaux. The translation would be industrial and commercial profits and the other one would be non commercial profit.

The critical innovation with the micro status was that profit was defined by law rather than the person' s account books. Profession libérale had a limit, most recently, of 32,900€ in sales per complete calendar year and the profit equaled 65% of total sales. For commerçant the latest limit was 82.200€ in sales and profit equal to 29% of sales, and for artisan it was 32.000€ and 50%.

On January 1st 2009, the auto-entrepreneur fiscal status using the same limits as the '93micro statut'94 came into effect and was a huge success right away, with the profession libérale and commerçant artisan.

So for seven years these two varieties of legal status have existed side by side, MICRO BNC/BIC and auto-entrepreneur. This situation was great since it allowed non-EU citizens living in France to develop businesses following prefecture guidelines although prefectures consider auto-entrepreneur to be similar to commerçant artisan, making it extremely difficult for anyone working in a profession libérale category to obtain a carte de séjour as an auto-entrepreneur. Nevertheless, it was relatively easy for foreigners to obtain the right to work in France, secure their stay in France, and even bill clients in other countries, including the USA, under the traditional MICRO BNC status.

However, at the beginning of 2016, under a new regulation, URSSAF completely put an end to the MICRO regimes, leaving only auto-entrepreneur status. This really hurts non-EU foreigners, who are now stuck with the impossible choice between auto-entrepreneur (and thus incurring the wrath of the prefecture) and the régime réel,the fiscal status corresponding to higher revenues (annual sales of more than 32.900 €; requires dealing with the French value-added tax (TVA) and itemizing expenses). This means foreigners will not only have to deal with a new country and a new way of doing business, but also dive fully into the complex French tax system.

I asked the manager of the prefecture office dealing with the Americas what the new guidelines were as a result of this radical change. His answer? He did not know of the change, and there was no adaptation of prefecture policy. I pleaded for some understanding of the awful consequences for foreigners stuck in the middle. He finally understood how bad the problem was but could do nothing about it.

I am actively trying to find a solution to avoid this nightmare but for the moment I am not sure what can be done. When I told someone at URSSAF what the prefecture official said, she was stunned. How was it possible, she asked, for the prefecture not to take into consideration this new regulation that has just gone into effect? I will be sure to keep my readers informed of any further developments.

 

URSSAF'S PARISIAN BRANCHES NOW REQUIRE APPOINTMENTS
French officialdom has long allowed people to be served at various agencies without an appointment. There are often long lines as a result, and France is famous for that, even though it is becoming less and less common. Today people's expectations and modern schedules mean that long waits in line have become less acceptable. Accordingly, URSSAF is changing its policy: as of April 4th 2016, anyone wishing to meet with an URSSAF official must make an appointment.

There are several reasons to seek such a meeting: registering to start a business, changing one' s address, closing one' s URSSAF account, asking for a schedule of payments, disputing the amount charged, and so on. With this agency, it is a lot more efficient to meet an official in person and get the business done well the first time. To book an appointment, go to www.iledefrance.urssaf.fr and click on '93nous rencontrer'94.

There are two branches of URSSAF in Paris: one in the northern part of the city at 11 rue de Cambrai in the 19th arrondissement and the other in eastern Paris at 3 rue de Tolbiac in the 13th. The latter is very easy to get to by metro and/or RER C (Bibliothèque François Mitterrand station) and easy to find; the former is hard to get to and hard to find (between metro stations Corentin Cariou and Porte de la Villette on line 7).

 

MAJOR CHANGES REGARDING THE MULTI-YEAR CARTE DE SEJOUR
The government has been talking about creating several new types of carte de séjour. There are several ways to obtain a "carte de séjour" that lasts several years. Until recently there were eight types of categories "(mentions)" stated on the card itself: "visiteur, étudiant, salarié, vie privée et familiale, commerçant-artisan, scientifique, artistique" and "compétences et talents".Now law 2016-274 relative au droit des étrangers en France, passed on 7th March 2016, combines the last three into a category called passeport talent. The law can also address several other situations that are not yet clearly defined yet. One thing I find interesting is that the passeport talent is not supposed to be renewed. Previously foreigners could have six years with the former three types of status, but now it goes down to four. The law clearly states that it is expected that these people will leave France unless they can secure another type of immigration status.

Another change is that students can now receive a multi-year card. This mostly concerns students working on a doctorate, which can take several years; there is little reason to review their situation every year. The same logic applies to some employees. Expatriates could already receive a three-year card, and now it can last for four years. People with a French contract working under local labor laws will also benefit.

One non-profit organization helping foreigners in France fears that the prefecture will soon make it even more difficult to obtain a carte de résident, which is valid ten years. Depending on how many people benefit from the other multi-year cards, this is a real risk.

Finally, the autorisation provisoire de séjour (APS) is getting better in two ways. The APS for students holding a master's degree can now easily be changed to an employee APS, and they can better retain this status even if they change employers early on. There is also one now for the self-employed, which lasts one year and allows people to register and start a business before having to go to the prefecture to submit their file. In the latter case, the APS should help in obtaining the carte de séjour if the prefecture is fair.

 

NOTAIRES MUST GUARANTEE A PERFECT PROPERTY TITLE OR INFORM THE BUYER
I write regularly about the notaire and how important this professional is in the purchase of real estate in France. An article I read in the November 15th 2015 issue of Le Monde illustrates again how critical the notaire's work and how perfect the property title must be when one buys real estate in France. The article covered a lot of issues but I would like to focus on one particular.

A house was destroyed by a fire. The owner then discovered that it had been built without a permit and that its location had since been declared off limits to construction because of flood risk, so she was not allowed to rebuild. She sued the notaire for failing to discover the lack of building permit, which exposed her to this risk; the house had been built less than 30 years before the fire, and the statute of limitations in property cases is 30 years. The notaire had an obligation to check the history of the house all the way back to its origin, including the paperwork and authorization needed to erect the house.

The lawyers of the notaire argued that such verification was not mentioned anywhere as being necessary and therefore no error was made. But the French Supreme Court ruled on December 5th 2014 that the notaire had a professional obligation called the devoir de curiosité '96 essentially, a duty to investigate out of curiosity at how things happened. This creates a very broad obligation, as it defines the notaire' s duty as not just going down a list of things that need to be checked but also doing a second or even third round of checks, depending on what documents turn up in the initial round.

As the Supreme Court put it, '93ni la formalité d'une déclaration d'ouverture de chantier, ni l'existence d'une garantie d'achèvement ne dispense le notaire, tenu d'assurer l'efficacité de l'acte de vente en état futur d'achèvement, de vérifier le commencement effectif des travaux, et d'informer les acquéreurs des risques qu'ils couraient'94 (neither a declaration of the start of construction nor a guarantee that the construction was correctly done exempts the notaire from checking the validity of the purchase of a planned house and the condition in which the work started, and informing the buyers of any related risk).

In other words, if a buyer is informed of such risk and goes ahead, the notaire incurs no professional liability. This decision is good news for buyers of real estate in France, as it illustrates that the lack of title insurance in France is offset by the strictness of the notaire's professional obligation to either draft a perfect title or inform the buyer of all issues preventing one.

FRANCE CONTINUES TO HAVE MORE BABIES THAN THE REST OF WESTERN EUROPE
In 2014, out of the 5.1 million births in the European Union, France accounted for 819,300 '96 the highest number in the EU. The French birth rate is 2.01 children per woman of child-bearing age. Nevertheless, this is below the replacement rate needed to keep the population from dropping, which is 2.10.

The average age for having the first child is now about 30, which shows that the trend of having children later and later has continued. The figure I find interesting is that 56.70% of babies in France are born out of wedlock. In Iceland, the rate is even higher at 66.9%. But in most of Europe such figures indicate a change in how society sees marriage, rather than teen pregnancy.

In the USA, being born out of wedlock largely involves teen pregnancies and single motherhood. These phenomena are comparatively rare in France and most of the rest of the EU. Much of European society considers marriage to be just one option for living as a couple and having children.

Thus, one obvious conclusion one can draw from the out-of-wedlock figure is that a majority of stable couples in France are not married. With civil unions now legal in three-fourths of the 28 EU countries (the exceptions are Bulgaria, Italy, Latvia, Lithuania, Poland, Romania and Slovakia), there is an official alternative to marriage, which fully recognized in France. « PACS’couples (those bound by a pacte civil de solidarité or PACS) are treated by society and the authorities the same as married couples for almost everything.

These developments may be somewhat related to the fact that France is now considered a secular country, with the Roman Catholic Church no longer universally recognized as an authority. But countries with higher numbers of Catholic people, such as Ireland, Italy, Poland, Portugal and Spain, have out-of-wedlock birth rates above 20%: Ireland's is 35.1%, for example, and Portugal's 45.6%. So if the decline of church authority is one explanation, it cannot be the only one. Germany' s rate is 34.5% and the Scandinavian countries all exceed 50%, while France tops even them. This issue must looked at country by country, taking into account the specific situation of each '96 which includes, of course, its history and the prevalence of a religious authority.

I would like to remind everyone that there is no January issue.


Best regards,
Jean Taquet

THE RIGHT OF A MINOR CHILD TO TRAVEL WITHOUT PARENTS

QUESTION

I have been living in France for over ten years and early on I had a child in Paris with a Tunisian who ended up moving back there shortly after our daughter'92s birth. Shortly after her birth, I took the father to court to rule about guardianship, visitation rights, and child support. The outcome was that my daughter lives with me, and I receive some money for her but I must have his written authorization for her to leave France. Lately, he has finally come to Paris to see her. She is in her last year of elementary school and the school hopes to take the students to London for a week this summer before they go on to middle school. So the teacher has asked the parents to get the paperwork ready for the students to participate to this field trip. This is when I discovered that my daughter cannot go because she does not have a document de circulation and when I went to the prefecture to ask what I needed to do, I was told that I needed a sworn statement from the father authorizing the issuance of this document. Her American passport is not enough, she must also prove that she resides in France. Of course, I have not said a thing about the court ruling. Her father is taking advantage of the situation and is blackmailing me; he wants her to visit him regularly, unaccompanied, in Tunisia, and he wants to lower his monthly contribution. Can I get this document without his consent?


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ANSWER

I believe the lesser of two evils would be to take the man to court so his decision can be overruled and you can go through this procedure and allow your daughter to travel outside of France with the school or by herself to visit your family in the USA. The situation has drastically changed since the court ruling ten years ago.

Allow me to explain what is at stake here. French law grants parental authority to both parents '96 married or not, living together or not, on speaking terms or not. It takes a court decision, very difficult to obtain, to take away the parental authority of a parent, and that is not the solution in this case, since, as you describe it, he is doing enough to secure his parental rights. You might resent the situation, but you must pick your fight. To start with, his parental rights were secured with the first court decision.

As a parent and according to the court decision, he is being asked to approve a request that would allow your daughter (i.e. both of you) to move permanently to the USA, making it a lot more difficult for him to visit her. So there is a point to be made here that it is in his best interests to limit her freedom to travel so you two must stay in France.

French judges must always rule in the best interests of the child. This is the legal ground on which decisions are made in this type of situation. But opinions on what is the child 's best interest often differ. Reading the court decisions, it is clear that the legal ground does not match what common sense defines as the best interest of the child. Still, I believe there is a good chance that any judge in France would consider that going on a school field trip or visiting her grandparents and other relatives is in her best interest and should supersede the father's concern that you two could be moving to the USA.

  • In order to get a document de circulation pour étranger mineur for your daughter, you must take the following to the prefecture:
  • her birth certificate
  • her passport and those of both parents
  • two official identity photos
  • proof that the child lives in France, e.g. school or medical records such as certificats de scolarité or  carnet de santé
  • proof of your address dated less than three month ago
  • your residency ID card or those of both parents, depending on the situation
  • if the parents are divorced, the court decision that defines parental authority.

You need to consider what would be the best strategy for you and your daughter. I believe you should dismiss his demands and instead inform him that, with or without his consent, you have the means to get this document, the only difference being that with his consent it will be faster and much cheaper for him. Without his consent, he could be required to pay damages to you, and be ordered to pay possibly more child support as the child is older. I am sure that if you present it like this, he will reconsider what is his best interest, and probably change his mind.

Another thing to consider is whether to retain a lawyer right away to conduct the discussion or to start by speaking to your daughter 's father on your own, using a stern tone to outline the threat mentioned above, hoping that this alone will sway him. My experience is that sometimes bringing in a lawyer too soon does more harm than good. French lawyers tend to be better courtroom fighters than out-of-court negotiators, so French people assume that if a lawyer is involved it means war, unlike in the USA. This is a fine line to walk, and not an easy one.

A WATER DAMAGE CLAIM AND INSURANCE COMPANY DEMANDS

QUESTION

I am an American living in the USA and I have owned a very cozy apartment near Les Invalides for about ten years. I recently suffered serious water damage from my neighbor upstairs. The décor and especially the paint job is very refined and therefore very expensive. The various experts, the neighbor, the syndic employee managing my building, my contractor, and other people visited my apartment to appraise the damage. Based on what I have been told, my expert is waiting for several documents before stating if I will be reimbursed in full. I have been told many times that French insurance companies reimburse a tiny fraction of the damage incurred. I just received a letter from my expert, saying he wants a « relevé d'hypothécaire », an « attestation de non credit » or « autorisation de paiement de la banque »,and an « attestation notarié de propriété.

I am very confused by what appears to be a request for documents authorizing an automatic payment withdrawal from my bank. But perhaps I misunderstand the request? Can you help me understand what is being asked for and why they need these items?


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ANSWER

There are two very different levels of handling this claim. I assume that the estimate of the work needed is quite substantial and therefore above what the insurance company considers a standard claim. So the company is taking some extra precautions. Let us review a standard water damage case first, and then I can explain what is being requested. The French insurance industry has agreed on a standard protocol that greatly simplifies claim handling. Each insured person is given at least one constat amiable de dégâts des eaux. The old-fashioned form consists of three identical sheets of non-carbon copy paper. When damage occurs, both parties fill out this document together and send two of the sheets to their respective insurance companies; the third one is sent to the syndic, the property manager, in case the building management is involved. If the cost of repairing the damage incurred is less than 1,600 HT, an agreement called a convention CIDRE states that each insurance company handles the damages owed by the person it insures, regardless of who is responsible. Above that amount it is considered to be serious enough to identify who is responsible for the leak that caused the water damage.

  • The procedure goes as follows:
  • Each insured party sends the constat amiable.
  • The insurance company opens a claim file and appoints an expert.
  • All experts involved in the claim inspect the damage together. Or, if this is not possible, they come one at a time.
  • The experts receive estimates of the repair cost, provided by the respective insured persons.
  • The experts decide how much the compensation for the loss should be '96 which can be significantly less than what the estimate states.
  • The insurance company sends an initial payment for part of this amount.
  • The work is done by professionals. Once they are paid, the insured persons have proof that the work has been done and paid for, which they send to the insurer.
  • After receipt of this proof, the insurance company pays the remainder of the compensation.

All this is done in good faith, for the most part. The amount of the claim must be substantial, say 15,000 € or more, that your insurance company wants to be sure you really own the apartment and are paying off your mortgage, if you have one. Some crook could go to a lot of trouble to obtain that kind of money using someone else's apartment. The chances of that happening are quite small, but considering recent scams, it is possible.

So let's look at what you are asked to provide:
A relevé hypothécaire. The conservation des hypothêques is the public office where mortgages are registered and noted on the title of property ownership so the money owed goes to the creditor. A statement issued by this office will show if there is a mortgage or other lien on the property, who the creditor is, how much was borrowed and who the current owner is. That is a lot of information on one document.

An attestation de non credit. This statement, issued by the bank, states that it does not have a loan pending with you.

An autorisation de paiement de la banque. Another statement from the bank, this one saying you are in good standing with your scheduled payments and therefore it approves payment of the compensation to you, the owner.

An attestation notarié de propriété. As notaires have a monopoly on processing real estate transactions in France, there is a centralized data base they can easily access. Your notaire can issue a statement, which must be less than two months old, certifying that you are still the owner of the apartment. This is meant to prevent fraud in case someone else owns it and crooks are trying to take advantage of the situation.

All this explains what the documents are and why the insurance company wants them. The bottom line here is that the insurance company will owe you money, probably a large sum. So I do not see that you have a choice, although I can see how difficult it may seem for you to come up with the documents while living in the USA. Really, though, it boils down to two emails requesting the documents: one to your notaire and the other to your bank. The notaire will deal with the first and last ones, and the bank with the rest. So it might be a lot less work than you think, if both you and the neighbor handle your requests efficiently which opens a completely different topic of discussion!

DISCLAIMER
Please forward this message to all those who would be interested in its contents. The information contained in this newsletter is intended only as general information. I strongly urge readers to seek professional guidance concerning the legal and tax matters mentioned. This newsletter is intended as a general guide and is not to be taken as professional advice.


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