Seizure of shares in SCIs

attachment of shares in SCIs

Sometimes, proceedings against a natural person are made difficult by the lack of sufficient movable surface area to recover its claim, other times because of a more or less voluntary organization of an insolvency. Thus, in particular, a number of debtors organise their assets through companies and their real estate assets through SCIs.
And yet, shares in SCIs can be seized and sold at auction, which, when one knows how to use this subtle tool of the seizure of shares in SCIs, very frequently makes it possible to obtain efficient recovery.
Our study, which specialises in the implementation of complex procedures (seizure of boats, ships, aircraft, brands, IV licences or taxis), explains the procedure for the seizure of shares in SCIs.

The implementation of the seizure of SCI shares :

Dès lors que l’on dispose d’un titre exécutoire (jugement ou autres), la saisie des parts de SCI est envisageable dans la mesure où l’article 2285 du code civil prévoit que « les biens du débiteur sont le gage commun de ses créanciers », ce qui signifie que tous les éléments du patrimoine du débiteur est un actif susceptible d’être utilisé pour régler ses créanciers.
Les parts de SCI sont des biens meubles incorporels et à ce titre, conformément aux dispositions de l’article L231-1 du code des procédures civiles d’exécution, sont saisissables par la voie de la procédure de saisie de droits d’associés

Article L231-1 CPCE: Any creditor in possession of an enforceable title recording a claim for cash and due may have the intangible rights, other than claims for sums of money, of which his debtor is the holder, seized and sold.

The seizure is carried out, without any prior order, by the bailiff in the hands of the SCI, which is a third party to the proceedings (although in practice the manager of the SCI may often be the debtor being sued). The shares are therefore inalienable.
Subsequently, this seizure deed is denounced to the debtor, which opens up the possibility of a challenge before the enforcement judge. In the absence of a challenge, the shares may be sold.

It should be noted that the seized debtor has a period of one month for amicable sale, which is carried outunder the control of the bailiff (Article R221-30 of the Code of Civil Enforcement Procedures).

Is a statutory approval clause such as to prevent the seizure of shares in SCIs?

The articles of association of SCIs often include an approval clause in the event of the transfer of shares. This provision is of obvious interest to the shareholders. However, in the event of a forced sale, the Paris Court of Appeal (decision of 11 December 1992 - RG 91/002772) ruled that such clauses are not enforceable, since forced sales do not fall within the scope of Articles 1861 et seq. of the Civil Code. Consequently, the approval of the successful bidder by the partners is not required.

The forced sale of SCI shares

In the absence of an amicable sale (or a consignment leading to the release of the seizure),the forced sale is carried out by the bailiff and we must then draw up precise and complete specifications which include in particular a reminder of the previous procedure, the articles of association of the company and any document necessary to assess the consistency and value of the rights put up for sale. This last point will notably include the various rights relating to the shares seized, as well as, of course, the mainly real estate items owned by the SCI.

The purpose of these specifications is to inform the bidders of the consistency of the shares offered for sale and the conditions of the sale. In particular, it is made available on our website, and we also serve it on the SCI and the debtor.

The sale is carried out by auction by our firm, either at our Parisian premises, or at our premises in Nanterre la Défense, or even at the premises owned by the SCI.

Opportunities for CIS Associates

Article R. 233-7 of the CPCE allows the partners of a SCI to prevent the arrival of an unwanted new partner by referring to Article 1868 of the Civil Code.

Compulsory realization which does not result from a pledge to which the other partners have given their consent shall likewise be notified one month before the sale to the partners and the company.
The partners may, within the said time limit, decide to dissolve the company or acquire shares under the conditions laid down in Articles 1862 and 1863.
Where the sale has taken place, the partners or the company may exercise the right of substitution granted to them by Article 1867. Failure to exercise this option shall entail the approval of the purchaser.

This provision allows the company, prior to the sale of the shares, either to dissolve or to have its members acquire the shares.

In case of dissolution, the liquidation bonus shall be attributed to the distraining creditor up to the amount of the causes of the seizure, any surplus shall revert to the debtor.
If, on the other hand, the partners decide to buy back the shares, Articles 1862 and 1863 of the Civil Code relating to the acquisition of shares in civil partnerships shall apply.

This relatively complex procedure is particularly interesting and effective. Our firm is specialized in this field and offers you its expertise for the realization of the procedure, everywhere in France.