SCI: Manager or partners may not endanger their company by mortgaging property

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SCI: Manager or partners may not endanger their company by mortgaging property

A family SCI recently submitted a problem to the Court of Cassation. In order to guarantee a professional debt, one of its members wanted to grant a mortgage on a building owned by the SCI to its creditor. The Court considered that this would endanger the SCI if the said building were sold. The judges therefore indicated that this constitution of guarantee was null.

It is not possible to use a property belonging to a real estate company to guarantee a personal debt of the manager or a partner if it puts this SCI at risk. That the partners agree and that the act complies with the statutes does not change the ban, recently specified the Court of Cassation *.

The member of an SCI wanted to mortgage a building

A problem concerning a familial SCI was submitted to him. One of the members with a significant professional debt had decided to give as payment guarantee to his creditor a building that belonged to the SCI. He had granted his creditor a mortgage on the property of the SCI.

But difficulties had subsequently arisen between partners and a protester obtained the annulment of this decision. Indeed, the mortgaged building may be sold which would jeopardize the very existence of the SCI, the judges considered. In this case, they said, this guarantee is void because it is against the interest of the SCI.

A forbidden assembly

In addition, the risk of seizure that would weigh on the mortgaged property would also jeopardize the rights of the creditors of the SCI. The latter could then see their reimbursement guarantee disappear, the court of appeal had previously observed.

In conclusion, not only would the SCI derive no benefit from the operation, but it would also see its existence in jeopardy. Mounting is therefore not permitted. Unless the SCI has enough assets to survive if a mortgaged asset were to be seized.

*Cass. Com, 6.1.2021, X 19-15.299

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