Posted on Nov 18, 2021, 12:00 PM
Professional patrimony is very often the main component of the patrimony of the entrepreneur. “He is both an opportunity and a threat to his personal heritage. An opportunity because it is an important source of enrichment, via regular flows (remuneration, dividends), the high point being the transmission of the company. But also a threat if things go wrong, ”explains Jean Prieur, Honorary President of the National Heritage Federation. How to protect your private assets from the vagaries of the business? What tools to use?
For business leaders at the head of a sole proprietorship, the question no longer arises today in the same terms as yesterday. Since the Macron law of August 6, 2015, the main residence of individual entrepreneurs is unseizable as of right and they can – even if in practice very few of them use this possibility – declare their other real estate not assigned to their professional activity unseizable. .
The bill in favor of independent professional activity under discussion marks a further step by providing for the protection of their personal assets by default, without any action on their part. On the other hand, the question is far from being settled for company directors, even if in capital companies (SA, SAS, SARL) their liability is in principle limited to the amount of their contributions. But the almost systematic recourse by credit institutions to the manager’s guarantee strongly attenuates this principle.
In addition, in the event of bankruptcy proceedings, if the manager is found guilty of a management fault which contributed to the insufficiency of assets, he may be ordered to bear all or part of the debts of the company on his personal property. However, unlike individual entrepreneurs, managers cannot benefit from the exemptions from seizure of their main residence.
The right matrimonial regime
“To prevent the failure of a business succeeding the failure of a lifetime and to rule out the threats that professional heritage poses to the manager’s private heritage, a heritage shield must be put in place. This begins with the choice of an appropriate matrimonial regime. But you have to do it when everything is going well … not when the fire has already broken out so as not to be accused of organizing your own insolvency, ”warns Jean Prieur.
The adoption of the regime of separation of property makes it possible to protect the property of his spouse from his professional creditors. But it often comes up against the pursuit of two contradictory objectives: to isolate certain assets from professional creditors and to allow the spouses to both benefit from the increase in the manager’s professional assets.
The addition of a partnership of acquests partially resolves the issue by allowing a dose of community to be introduced while preserving the property of the spouse of the entrepreneur. But it puts part of the heritage at risk as long as the entrepreneur is still in business.
Hybrid, the participation in acquisitions regime undoubtedly offers better protection. It works like the regime of separation of property during marriage: professional creditors can only act against the personal property of the entrepreneur. But on liquidation, whether it results from the divorce or the death of one of the spouses, this regime is transformed in a way into a community regime, since the spouse who has been the least enriched has the right to a debt of participation.
“You can then protect your private wealth by giving priority to assets that cannot be seized by creditors, such as life insurance or tontine, for example, or by setting up an organization that makes the heritage difficult to seize. This can involve the creation of a civil society to house its main or secondary residence. Because if the shares are in theory seizable, in practice it is very complicated ”, analyzes Jean Prieur.
The question of ownership of company premises
As for the question of knowing whether to acquire professional premises, it all depends on the priorities of the entrepreneur. If the business is growing, it is generally more profitable to mobilize its resources to finance the development of its activity rather than to make a real estate investment.
Once this question has been decided, the business manager will have to ask himself whether it is preferable to include his operating premises in the balance sheet of his company or to hold them in a separate structure – a real estate company (SCI) of which he will be the majority partner – who will rent them out to his operating company.
This type of organization allows real estate to be isolated from any difficulties facing the company and sheltered from its creditors, like an SCI intended to house its main and / or secondary residence. For that, it is also necessary that there is no confusion of assets between the SCI and the operating company! In order for protection to be fully effective in the event of reorganization or compulsory liquidation, a certain number of precautions must be taken, in particular ensuring that the rent corresponds to the market price.
“For atypical industrial premises, we can submit the draft lease to the company’s auditor or even file a request with the president of the commercial court to appoint an expert to fix the rent. This judicially fixed rent will be indisputable, ”suggests Jean Prieur. Another advantage of separating real estate from the company with a view to retirement: it allows you to build up private assets providing additional income. It will also be possible to resell it if necessary.
The constitution of an SCI can also facilitate the family transfer of the business, the real estate being able to be given to the children not taking over, even to prepare and facilitate the resale of the business to a third party. Depending on the circumstances, the buyer may acquire the business and the operating premises or only the business.
“While owning real estate through an SCI offers many advantages when it comes to functional and well-placed premises, it can become a nightmare for industrial premises or a warehouse located in the countryside. The risk is that the buyer only covets market share and that the entrepreneur finds himself with an abandoned factory on his hands. Ultimately, with an asset that risks turning into liabilities if the business manager is forced to clean up the site, ”concludes Jean Prieur.