SCI share transfer lawyer Paris: approval, price, deed and tax.

No, where the SCI is a company whose assets are predominantly real estate. Article 1865-1 of the Civil Code, in force since 27 June 2026, requires, on pain of nullity, that the transfer be recorded in a notarial deed, in a deed countersigned by a lawyer within the meaning of Article 1374 of the Civil Code, or in a private deed drawn up by the chartered accountant only in the cases where the law empowers the accountant to do so. The professionals who draw up these deeds apply the vigilance and reporting obligations laid down by the Monetary and Financial Code.

The rule also has a tax aspect. Article 635-0 A of the General Tax Code makes the registration of these transfers conditional on production of a copy of the deed drawn up in one of these forms. A deed signed between family members on a template found online therefore exposes the parties to a nullity that can be invoked under the general law, and to a refusal of registration.

Form does not settle everything: the countersigned deed engages the lawyer's liability, as the lawyer must advise each of the parties. The Court of Cassation holds that "the existence of a clear clause in the deed does not relieve the lawyer of informing them of the consequences attached to it" (our translation) (Cass. 1re civ., 10 November 2021, No. 20-12.235).

The definition is in 2° of I of Article 726 of the General Tax Code, to which Article 1865-1 of the Civil Code refers. A company whose assets are predominantly real estate is an unlisted legal entity whose assets consist, or consisted at any time during the year preceding the transfer, mainly of buildings or real estate rights located in France, or of holdings in other legal entities that are themselves predominantly real estate.

An SCI that holds the family home, a rented flat or business premises generally meets this condition, since its assets consist almost entirely of the property. The analysis becomes more delicate where the company also holds significant cash, securities or receivables, for example after the sale of an asset. The assessment then looks at the composition of the assets over the whole year preceding the transfer, not only on the day of signing.

The Court of Cassation reads this provision strictly: it upheld a court of appeal for having held, as regards property that is real estate by destination, that "the latter cannot be taken into account in determining whether, within the meaning of Article 726, I, 2°, above, a legal entity is predominantly real estate" (our translation) (Cass. com., 2 December 2020, No. 18-25.559). The firm therefore reconstructs the assets item by item before settling on a classification.

The law allows it, but only as a default rule. Article 1861 of the Civil Code sets out the principle of approval by all the partners, then provides that, unless the articles of association state otherwise, transfers made to the transferor's ascendants or descendants are not subject to approval. The articles of association may also exempt transfers between partners or to the spouse of one of them from approval.

In a family SCI, the articles of association may rule out this exemption, precisely to prevent one partner from bringing one of their children into the share capital alone. The first check is therefore the approval clause itself: the majority required, the competent body, the form of notification and the time allowed for a reply.

Where approval is required and has not been obtained, the transfer is exposed to challenge by the partners whose consent was needed, sometimes several years later. The firm therefore checks, before signing, that each partner concerned has been consulted in the form provided for by the articles of association and that the reply has been kept.

Article 1861 of the Civil Code contains a rule specific to spouses who are both members of a company: transfers made by one to the other must, to be valid, result from a notarial deed or from a private agreement that acquired a fixed date (date certaine) otherwise than by the transferor's death. The requirement is intended to prevent a backdated transfer from altering, after the event, the division of shares between the spouses or their heirs.

Since 27 June 2026, this rule combines with Article 1865-1 of the Civil Code where the SCI is a company whose assets are predominantly real estate. The deed must then be notarial, countersigned by a lawyer or, in the cases provided for, drawn up by the chartered accountant. The firm ensures that the deed chosen also meets the fixed-date requirement specific to spouses, arranging the signing and registration accordingly.

A transfer between spouses also raises matrimonial property regime questions: the origin of the funds used to acquire the shares, classification as joint or separate property, and any rights of compensation. The firm examines them with the marriage contract before drafting the deed, because a transfer that is valid in form may have unexpected effects on a separation.

Not in the sense of a right of pre-emption. Where approval is refused, Article 1862 of the Civil Code allows the partners who so wish to acquire the shares in proportion to their previous holding, unless the articles of association provide otherwise, and then allows the company to have them acquired by a third party or to buy them back with a view to cancelling them. The price offered is notified to the transferor and, if disputed, set under Article 1843-4 of the Civil Code.

This mechanism protects the partner who wants to leave, not those who remain. The text specifies that everything is done without prejudice to the transferor's right to keep the shares: the purchase offers open an exit for the transferor, they give the other partners no priority that they could impose on the transferor.

In practice, the partners of a family SCI who want to keep control of the share capital must provide for a pre-emption clause in the articles of association or in an agreement, and coordinate it with the approval procedure. Otherwise, a brother or sister who refuses approval without making a purchase offer delays the transaction only for the legal period or the period set by the articles of association, unless the other partners decide within that period to dissolve the company early. The transferor may then cause that decision to lapse by withdrawing from the transfer within one month (Article 1863 of the Civil Code).

Silence does not amount to immediate approval, but it produces approval when a period expires. Under Article 1863 of the Civil Code, if no purchase offer is made to the transferor within six months of the last of the notifications provided for by Article 1861, approval is deemed given. The other partners may nevertheless decide, within the same period, to dissolve the company early, a decision that lapses if the transferor withdraws from the transfer within one month.

Article 1864 of the Civil Code limits the freedom of the articles of association: they may only change the length of this period, without extending it beyond one year or reducing it below one month. A clause that removes the period or makes tacit approval subject to further conditions departs from these mandatory rules.

The period starts to run only from a valid notification, addressed to the SCI and to all the partners, or to the company alone where the articles of association entrust approval to the managers. A letter sent to a single partner or to the manager alone, when the articles reserve approval to the meeting, does not start the period running. The firm therefore checks the exact list of recipients and keeps proof of receipt before having approval recorded as deemed given.

The price must be determined by the parties, as in any sale (Article 1591 of the Civil Code). For an SCI, the value of a share is most often assessed from net assets: the real value of the property and other assets, less the outstanding loan, other debts and the balance of the partners' current accounts, then divided by the number of shares. The transferor's current account is dealt with separately, by repayment or by transfer to the same acquirer.

The court checks that the price is genuine without requiring it to match the real value. The Paris judicial court recalled that "A sale appears valid where the price is not derisory, even if it does not correspond to the real value of the property sold" (our translation) and rejected the heirs' claim for nullity (TJ Paris, 28 October 2024, No. 21/02107). This decision went against those who challenged the transfer.

Conversely, the Paris Court of Appeal annulled, for lack of a price, transfers of SCI shares made for one euro per share, when the net assets, calculated after deducting the company's debt, represented more than 270 euros per share (CA Paris, pôle 4 ch. 13, 5 March 2024, No. 21/00852). These two decisions show that the court assesses case by case whether the price is derisory: net assets, established by documents, serve as a basis of comparison without setting a threshold beyond which nullity would be automatic.

In the situations covered by Article 1843-4 of the Civil Code, notably refusal of approval or the withdrawal of a partner, a disagreement on the value of the shares is resolved by an expert. The parties choose the expert together; failing agreement, the expert is appointed by the president of the judicial court or of the commercial court, who rules under the accelerated procedure on the merits, without appeal. The current version of the article requires the expert to follow the valuation methods set by the articles of association or by an agreement concluded between those concerned.

The expert's valuation is binding on the parties and on the court, save for a gross error. The Court of Cassation set aside a decision of a court of appeal that had found such an error, recalling that, under the text preceding the ordinance of 31 July 2014, "the expert had complete freedom of assessment to set the value of the company shares according to the criteria the expert thought fit" (our translation) (Cass. 1re civ., 9 May 2019, No. 18-12.073). The decision concerned shares in a law firm and the regime prior to that ordinance; above all it illustrates how narrow the review is.

In a family SCI, the issue therefore shifts to the drafting of the articles of association: a clause that sets the valuation method, the date of assessment and the treatment of current accounts limits the debate before the expert.

Yes, if the transfer conceals a gift. Article 843 of the Civil Code requires an heir to account to the co-heirs for what the heir received from the deceased by gift, directly or indirectly, unless expressly exempted. A transfer of shares made to a child at a price below their value may be requalified as a disguised gift for the difference, and enter the accounts of the estate.

The burden of proof lies on the heir who relies on the gift. The Paris Court of Appeal upheld the rejection of a claim for collation based on the transfer to a son of almost all the shares of an SCI, noting that the heir had not provided sufficient evidence and that collation can exist only if the undervaluation was "guided by a liberal intention of the deceased" (our translation) (CA Paris, pôle 3 ch. 1, 19 March 2025, No. 23/03155). This decision went against the claimant heir.

For the parent who transfers, prudence means setting a price justified by a valuation of the property and up-to-date accounts, keeping proof of payment and, if a gratuitous transfer is intended, making it as an openly acknowledged gift rather than a sale at a low price.

No. Article 1865 of the Civil Code makes the enforceability of the transfer against third parties conditional on completion of the formalities and its publication at the Trade and Companies Register. The transferor's heirs are not third parties, however: they succeed to the commitments of the person they inherit from and are bound by the transfer that person agreed.

The Court of Cassation so held in a case concerning SCI shares transferred by the deceased to one of the heirs, which the court of appeal had brought back into the estate for lack of publication. It set that decision aside on the ground that "the heirs of the transferor of the shares, not being third parties, could not rely on the lack of publication of the deed of transfer to have it declared unenforceable against them" (our translation) (Cass. 1re civ., 21 May 2025, No. 23-10.119). The judgment went against the co-heirs who challenged the transfer.

In the same case, the transfer of other shares, in an SARL this time, at an undervalued price had been treated as a disguised gift subject to collation, the Court of Cassation setting aside only the starting point of interest. Heirs who challenge an old family transfer should therefore argue it on the ground of price and liberal intention, rather than on that of publication formalities.

The partner may. Under Article 1857 of the Civil Code, the partners of a civil company are indefinitely liable for the company's debts towards third parties, in proportion to their share of the capital on the date the debt falls due or on the day of cessation of payments. What matters is therefore not the date on which the debt arose, but partner status when it becomes due.

The creditor may, however, pursue a partner only after first pursuing the SCI without success (Article 1858 of the Civil Code), and must establish the creditor's own position. The Court of Cassation set aside a judgment that had ordered a former partner in an SCI to pay without finding that the claimant was a third party in relation to the company and held a claim against it on the date of the writ of summons (Cass. 3e civ., 4 March 2021, No. 19-11.255). The decision favoured the former partner who was sued.

Before acquiring SCI shares, it is therefore necessary to know the outstanding loan, the state of repayments, any unpaid charges or taxes and any pending disputes. The deed may provide for a guarantee from the transferor for earlier liabilities, but that guarantee organises recourse between transferor and transferee and does not, on its own, change the rights that the SCI's creditors hold under Article 1857.

Article 726 of the General Tax Code subjects transfers of holdings in legal entities whose assets are predominantly real estate to a registration duty of 5%. The regime is distinct from that for transfers of shares in companies whose assets are not mainly real estate, hence the importance of how the SCI is classified on the date of the transaction. Under II of the same article, this duty is assessed on the stated price plus charges, or on the real value of the shares if higher.

Since 27 June 2026, Article 635-0 A of the General Tax Code makes the registration of these transfers conditional on production of a copy of the notarial deed, the deed countersigned by a lawyer or, where applicable, the deed drawn up by the chartered accountant. The form of the deed thus conditions payment of the duties and, consequently, the tax security of the transaction.

Not every transaction in the shares falls under this duty. The Court of Cassation has held that "the transfer of the usufruct of company shares, which does not entail a transfer of ownership of the company shares, is not subject to the registration duty applicable to transfers of company shares" (our translation) (Cass. com., 30 November 2022, No. 20-18.884). In a family SCI where shares are split between bare ownership and usufruct, the firm therefore examines precisely what is being transferred: full ownership, bare ownership or usufruct.

The regime depends on the status of the transferor and the tax status of the SCI. According to the administrative guidance BOI-RFPI-SPI-10-10, capital gains made on the transfer of securities of companies whose assets are predominantly real estate fall under the regime for private individuals' capital gains provided for in Article 150 UB of the General Tax Code where they are made on an occasional basis by individuals or by companies falling under Articles 8 to 8 ter. A special method of taxation applies to a transferor who is not tax resident in France.

Where the SCI has opted for corporation tax, or where the shares are held in the course of a professional activity, other rules apply. The calculation requires knowing the acquisition price of the shares, the date they entered the transferor's assets and the transactions since, such as gifts or capital increases.

The firm reconstructs these elements from the deeds and the SCI's returns, then checks the text applicable on the date of the transfer before quantifying the tax with the family's tax adviser or chartered accountant. No amount can be given without these documents.

Under Article 1870 of the Civil Code, a civil company is not dissolved by the death of a partner and continues with the heirs or legatees, unless the articles of association provide for their approval by the partners. The articles may also stipulate that the company will continue with the surviving partners alone, with the surviving spouse or with certain designated heirs.

The burden of proof lies on the party who excludes the heirs. The Court of Cassation has held that, a civil company being presumed to continue with the heirs of a deceased partner, "it is for the person who denies partner status to the heir of a partner to establish the existence of a contrary stipulation in the articles of association" (our translation) (Cass. 3e civ., 9 March 2023, No. 21-21.698).

In a family SCI, this question joins that of transfer: a parent who transfers part of the shares during their lifetime is also preparing the make-up of the share capital after death. The firm reads the approval clause for transfers and the clause on death together, so that the planned transfer and the succession remain consistent.