Cession de titres de sociétés à prépondérance immobilière : nouveau formalisme

Article 68 of Law No. 2026-534 of 25 June 2026 on combating social security and tax fraud subjects transfers of shares in predominantly real estate companies (“SPI”) to new formal requirements (new Article 1865-1 of the French Civil Code).

As no deferred application is provided for, the text applies from the day after its promulgation, i.e. from 27 June 2026.

Definition of predominantly real estate companies

The scope of these new formal requirements is defined by reference to Article 726, I, 2° of the FTC.

A predominantly real estate company is a legal entity, whatever its nationality, whose shares are not traded on a regulated financial instruments market or on a multilateral trading facility (French Monetary and Financial Code, Art. L. 421-1 and L. 424-1) and whose assets consist, or consisted during the year preceding the transfer of the shares, mainly of real estate or real estate rights located in France or of holdings in legal entities, whatever their nationality, not listed on a stock exchange, which are themselves predominantly real estate companies (FTC, Art. 726, I.2° - definition for registration duty purposes).

In other words, the scope is broad. It covers SCIs, SARLs, SASs and SAs as well as holding companies, since the holding may be indirect, and foreign companies holding real estate in France.

In addition, the company must be unlisted, and more than 50% of its gross assets must consist of real estate or real estate rights located in France, or of direct or indirect holdings in other predominantly real estate companies.

By contrast, the following remain outside the scope: transfers of units or shares in SCPIs, OPCIs and other collective investment undertakings (French Monetary and Financial Code, Art. L 214-1), listed companies, social housing organisations (HLM) and semi-public companies (SEM) that build and manage social housing.

Three compliant forms of deed

The transfer of SPI shares must be recorded by:

• a notarial deed;
• a deed countersigned by a lawyer within the meaning of Article 1374 of the French Civil Code; or,
• a private deed drafted by a chartered accountant, only where the latter is legally authorised to do so, i.e. where drafting the deed is a direct ancillary assignment to a main accounting engagement in progress for the client concerned (Order No. 45-2138 of 19 September 1945, Art. 22.2° and para. 8; Law No. 71-1130 of 31 December 1971, Art. 59).

A twofold penalty

Failure to comply with these formal requirements gives rise to two penalties:

• Nullity of the transfer. In the absence of a qualifying deed, any interested party may invoke the nullity of the transfer (new Art. 1865-1 of the French Civil Code).
• A tax lock: registration of the transfer of SPI shares is subject to the presentation of a compliant deed (new Article 635-0 A of the FTC). Failing this, the tax office will refuse to register a transfer deed it considers non-compliant.