SCI, this transfer of shares that families did for free will now cost fees

France has between one and two million real estate companies (SCI) and other predominantly real estate companies, often used for the ownership and transfer of family property. But from now on, any transfer made outside of this new framework will be void, regardless of the good faith of the parties. A new law which was highly anticipated in the notarial sector.

A reform demanded by the notariat

Me Bertrand Savouré, president of the Superior Council of Notaries, is delighted “with satisfaction” of the arrival of this new rule, which, according to him, strengthens both “the legal security of these transactions” but also helps to fight against money laundering. It must be said that his organization had been calling for this reform for several years, deeming the legal void untenable and inconsistent with the rules already applicable to traditional real estate sales.

The contrast was this: the direct transfer of real estate already required an authentic deed… but that of the shares of the company which held it could be done without any control, from hand to hand. Notaries of France had thus alerted the State “for many years” about the “legal distortions between transfers of real estate on the one hand and transfers of shares in real estate companies on the other hand”says Me Pierre Jean Meyssan, first vice-president of the Superior Council of Notaries.

Finally, and this is a first: this new law places the lawyer’s act at exactly the same level as thenotarial deed for this type of transfer. Until now, only the authentic deed of a notary could secure a property transaction of this magnitude; the legislator now recognizes the lawyer as having equivalent competence for these transfers, provided that the act is countersigned according to the rules provided for by the law of March 28, 2011. The accountant, for his part, can only intervene if the drafting of the act is done in the direct extension of its accounting mission with the company concerned. He cannot therefore replace a notary or a lawyer for an isolated transfer.

A heavy penalty in the event of non-compliance

So, what should families do? Transfer shares between spouses, between parents and children or between brothers and sisters can no longer be done through a simple document signed between oneself. But this is also a good thing: being accompanied by a professional. “Entrusting a notary with the formalization of transfers of shares in predominantly real estate companies provides legal certainty », underlines Bertrand Savouré. Obviously there remains the question of costbecause a notarial deed or a lawyer’s deed generates fees that could until now have been avoided.

But the sanction in the event of non-compliance with this formalism is pure and simple nullity of the transferinvokeable throughout the limitation period by any interested party: an heir, a creditor, another partner or the tax administration itself. Legally, the transferor has never sold anything and the transferee has never acquired anything, with chain consequences on all decisions made since by the company.