–Manager or partners must not endanger their SCI (© Damien Meyer – AFP)–
A member of an SCI had a debt. He had given a building that belonged to the SCI as a guarantee of payment to his creditor. But the Court of Cassation recalled that this is not possible when it endangers the existence of the SCI.
(BFM Immo) – 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, specifies the Court of Cassation.
The problem submitted to the Court concerned a family SCI. 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.
The mortgaged property risks being sold
But difficulties had subsequently appeared between partners and a protestor obtained the annulment of this decision. The mortgaged building is in danger of being sold, the judges observed, which endangers the very existence of the SCI. In this case, they said, this constitution of guarantee is null because contrary to the interest of the SCI.
In addition, the risk of seizure which would weigh on the mortgaged property would also jeopardize the rights of the creditors of the SCI who could then see their repayment 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).
With AFP
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