Since June 27, 2026, the transfer of shares in a predominantly real estate company is subject to new mandatory formalities. When it falls within the scope of Article 1865-1 of the Civil Code, it must, under penalty of nullity, be evidenced by an authentic instrument, by an instrument countersigned by a lawyer, or, only in cases where the lawyer is legally authorized to do so, by an instrument drawn up by a chartered accountant.
The measure could easily go unnoticed.
It is indeed included in Law No. 2026-534 of June 25, 2026 relating to the fight against social and tax fraud, the title of which does not immediately suggest an important change in the law of transfers of securities.
However, its article 68 created a new article 1865-1 of the Civil Code which directly modifies the conditions of validity of certain transfers of company shares and stocks.
The text entered into force on June 27, 2026.This date is the one adopted by the Civil Code in its official version currently in force.
This reform directly concerns business law, company law and transfer operations.
The change is significant: a transaction that could previously be carried out by means of a private agreement established between the parties may now be void if the company is predominantly real estate-based and if the new formal requirements are not met.
The first question to ask before any transfer of shares in a company holding real estate assets therefore becomes:
Is the company in question a legal entity whose assets consist primarily of real estate within the meaning of the new article 1865-1 of the Civil Code?
What is a real estate-focused company?
The term "SPI" is usually used to refer to a company whose assets consist primarily of real estate.
However, it should be noted that the new article 1865-1 uses a broader concept: that of "legal entity with a predominance of real estate".
Therefore, it is not a particular social form.
A SCI is not automatically an SPI and, conversely, the qualification of SPI is not reserved for SCIs.
The new article 1865-1 expressly refers to point 2 of section I of article 726 of the General Tax Code to determine the legal entities concerned.
The classification depends essentially on the composition of the legal entity's assets.
Subject to the reservations and exclusions provided for in the tax legislation, this applies to legal entities whose shares are not traded on a regulated market or a multilateral trading facility and whose assets are, or were during the year preceding the transfer, primarily composed of:
- of buildings or real estate rights located in France;
- or participations in other legal entities that are themselves predominantly real estate-based.
The qualification therefore requires taking an interest in the reality of the asset and not simply in the corporate purpose or the name of the company.
A commercial company can therefore carry out an activity or have a name that does not have any apparent "real estate" character while holding an asset that could lead to the classification of a legal entity with predominantly real estate assets.
Conversely, the mere fact that a company is constituted in the form of an SCI is not necessarily sufficient, on its own, to resolve the analysis.
Before June 27, 2026, a transfer of shares in a predominantly real estate company did not, in principle, require the mandatory intervention of a lawyer or a notary.
The new system marks a break with the previous regime.
For civil companies, article1865 of the Civil Code already required that the transfer of shares be recorded in writing.
However, this document could notably take the form of a private agreement drawn up directly between the transferor and the transferee, subject of course to compliance with:
- any possible approval rules;
- statutes;
- formalities of enforceability;
- tax obligations;
- and applicable social formalities.
The predominance of real estate in the company therefore did not generally result in the intervention of a notary or a lawyer being mandatory to ensure the validity of the deed.
The involvement of these professionals could naturally be recommended to secure the operation, but it did not constitute, solely because of the real estate composition of the asset, a general condition of validity.
However, there was already a specific rule for certain transfers of shares in legal entities with predominantly real estate assets carried out abroad, subject to specific formalities by article 726 of the CGI.
The law of June 25, 2026 therefore profoundly changes this logic.
From now on, any transfer of shares in a company whose assets consist mainly of real estate and which falls under Article 1865-1 must comply with one of the forms provided for by law.
The new Article 1865-1 of the Civil Code now provides:
"On pain of nullity", the transfer of shares or stock of a legal entity whose assets consist mainly of real estate must be recorded in one of the forms provided for by law.
Three possibilities are envisaged.
The authentic deed
The transfer can first be recorded by an authentic instrument, which in practice mainly leads to the involvement of a notary.
The document countersigned by a lawyer
It can also be evidenced by a document countersigned by a lawyer, within the meaning of Article 1374 of the Civil Code.
The role of the lawyer takes on particular importance here.
The lawyer's countersignature is no longer chosen solely for the legal security it provides to the transaction: the legislator expressly designates it as one of the forms that allows a legal condition for the validity of the assignment.
The text thus places, for the application of article 1865-1, the lawyer's act alongside the authentic act among the instruments allowing the transaction to be validly recorded.
The document must be drawn up by a chartered accountant, but only in cases where they are authorized to do so
The third possibility warrants particular attention.
Article 1865-1 does not confer any new general competence on chartered accountants to draft the transfers of SPI securities.
On the contrary, the wording of the text is very restrictive.
A private agreement drawn up by a chartered accountant is only admissible in the following cases:
"Only in cases where a chartered accountant is legally authorized to draft it",
the text expressly refers to article 22 of the ordinance of 19 September 1945 and to article 59 of the law of 31 December 1971.
Therefore, we must distinguish between the three solutions.
The notary can receive the authentic deed.
The lawyer may countersign the document under the conditions of Article 1374 of the Civil Code.
The chartered accountant, for his part, can only draw up the document if his professional regulations already authorize him to perform this legal service in the situation under consideration.
The law of June 25, 2026 does not broaden its scope of legal intervention.
Why does an anti-fraud law mandate a specific form for the transfer of ownership?
The presence of this provision in a law dedicated to combating social and tax fraud is explained by the objective pursued by the legislator.
A company whose assets consist primarily of real estate allows one to indirectly own a building.
The sale of the building itself normally involves the intervention of professionals subject to the rules for combating money laundering and the financing of terrorism.
On the other hand, the transfer of shares in the owning company makes it economically possible to transfer ownership of the real estate asset without necessarily carrying out a direct real estate sale.
The parliamentary amendment that gave rise to the measure explained that the sale of shares in real estate investment trusts (REITs) constituted a "loophole" in the anti-money laundering and counter-terrorist financing (AML/CFT) due diligence system. It noted that this could allow for the economic transfer of real estate assets without the mandatory involvement of a professional subject to the relevant regulations.
The legislator therefore sought several objectives:
- ensure the identification of the parties and beneficial owners;
- strengthen the traceability of financial flows;
- limit the risks of tax fraud and money laundering through the use of corporate structures;
- to improve the legal security of transactions.
This purpose also explains why article 1865-1 expressly specifies that professionals involved in the transaction must respect their obligations of vigilance, declaration and information regarding AML-FT.
The new formalism therefore constitutes both a rule of company law and an instrument for combating money laundering.
Which companies are affected? A difficulty remains for commercial companies
The text concerns the transfer:
"shares or stock in a legal entity whose assets consist primarily of real estate.".
Mentioning the actions is particularly important.
She appears to be advocating for the application of the system not only to civil companies, but also to commercial companies with a predominance of real estate, such as certain SAS or SA.
Several commentaries published since the text came into force thus adopt a broad interpretation of the provision. An analysis published by Seban Avocats, for example, considers that the text concerns both partnership interests and shares and presents the provision as applicable to legal entities whose assets consist primarily of real estate.
However, one difficulty remains.
Article 1865-1 was inserted into Chapter II of Title IX of the Civil Code devoted to civil society, and more specifically in the section relating to the transfer of shares in civil societies.
This location has led some legal scholars to advocate a more restrictive interpretation of the system.
Therefore, a genuine doctrinal debate exists today :
- An extensive reading relies on the terms "shares or stocks", on the general notion of "legal entity" and on the reference to the tax definition of article 726 of the CGI;
- A restrictive reading is based primarily on the placement of article 1865-1 within the provisions of the Civil Code devoted to civil companies.
In practice, however, the potential penalty leads to caution.
When a commercial company meets the tax criteria of real estate predominance, it appears particularly risky to disregard the formalities of article 1865-1 pending legislative or jurisprudential clarification.
Collective investments are expressly excluded
On this point, the text leaves no room for doubt.
Paragraph II of Article 1865-1 specifies that the new formalism is not applicable to transfers relating to units or shares of collective investment schemes mentioned in Article L. 214-1 of the Monetary and Financial Code.
This exclusion notably covers various categories of UCITS and alternative investment funds.
It is of particular interest to real estate investment structures falling within these categories, such as SCPIs.
It is therefore necessary to distinguish between an ordinary company meeting the tax criteria of real estate predominance and a collective investment benefiting from the express exclusion provided for in II of article 1865-1.
A second obstacle: tax registration
The system is not based solely on a civil penalty.
Article 68 of the law of June 25, 2026 also introduced into the General Tax Code an article 635-0A.
The registration of transfers falling under Article 1865-1 is now subject to the presentation of a copy of one of the deeds meeting the legal formalities:
- authentic deed;
- document countersigned by lawyer;
- or a document drawn up by a chartered accountant when he is legally authorized to do so.
Thus, there is a double lock.
The first concerns the validity of the transfer.
The second concerns its tax registration.
The legislator had in fact foreseen this articulation from the outset in theamendment which gave rise to the system, by making registration conditional upon the presentation of the document meeting the new formalism.
The penalty: the invalidation of the transfer
Failure to comply with the formalities applicable to the transfer of shares in a predominantly real estate company renders the transaction void.
This is probably the most important point for the parties to a transaction.
The law does not penalize non-compliance with the new formalities by a simple administrative irregularity.
It expressly stipulates that the requirement is imposed:
"under penalty of invalidity".
A transfer falling within the scope of the new article 1865-1 which would be recorded, since June 27, 2026, by a simple ordinary private deed not corresponding to any of the three forms provided for by the text is therefore liable to nullity.
This sanction should be taken into account for operations currently being prepared, but also for acts possibly signed since June 27, 2026 without the new system having been identified.
The risk is all the more significant as the qualification of a legal entity with a predominance of real estate is not necessarily visible by simply reading the corporate form or the statutory purpose.
A second uncertainty: does the text apply to donations?
The question of the scope of the mutations concerned is not yet fully resolved.
Article 1865-1 uses the term "transfer" without expressly specifying whether the formalities are limited to transactions for valuable consideration.
Two analyses are possible.
The first interpretation considers that the reference to paragraph 2 of section I of Article 726 of the French General Tax Code (CGI) serves only to define a legal entity whose assets consist primarily of real estate. In this interpretation, it does not necessarily require limiting Article 1865-1 to sales alone.
The second point emphasizes that article 726 of the CGI belongs to the tax regime for transfers for consideration, which could argue in favor of a narrower scope.
This uncertainty has very concrete consequences.
It concerns in particular donations of shares in companies whose assets consist mainly of real estate and raises, in practice, the question of the security of a transfer which would be carried out without respecting the new formalities.
Some practitioners therefore recommend, as a precaution, applying the enhanced formalism to these operations as well until the issue is clarified.
The subject has now been officially put to the Government: MP Daniel Labaronne, who initiated the amendment that led to the creation of the system, submitted written question no. 17718, published on August 11, 2026, specifically concerning the "scope of application of article 1865-1 of the civil code".
As of August 20, 2026, this question remains unanswered.
It is therefore necessary to avoid any categorical statement on the application or non-application of the text to donations and to proceed with a particular analysis of these operations.
What precautions should be taken before transferring securities involving real estate?
The new system requires some preliminary checks which should now become systematic.
- Check the composition of the company's assets
The analysis must take into account the current asset but also, in view of the definition in article 726 of the CGI, the situation during the year preceding the transfer.
- Examine indirect shareholdings
Real estate predominance can result from holdings in other legal entities that are themselves predominantly real estate-based.
- Check if an exclusion applies
In particular, it is necessary to identify collective investments expressly excluded by article 1865-1.
- Do not automatically limit vigilance to SCIs
When a SAS, an SA or other commercial company meets the tax criteria of real estate predominance, the current doctrinal debate calls for a cautious approach given the sanction of nullity.
- Choose a form of action that complies
The transfer must be prepared in the following format:
- of an authentic instrument;
- of a document countersigned by a lawyer;
- or, when the legal conditions are actually met, a document drawn up by a qualified chartered accountant.
- Anticipating vigilance obligations
The identity of the parties and beneficial owners, the economics of the transaction and the origin of the funds must in particular be able to be examined within the framework of the AML/CFT obligations of the professional concerned.
Before any transfer of shares in a predominantly real estate company, the composition of the assets must therefore be verified.
- Identify the free operations
For donations and other transactions whose classification with regard to the term "transfer" may give rise to a difficulty, the risk linked to the current state of the text must be analyzed before carrying out the transaction.
Key points to remember
The law of June 25, 2026 brings about a change in practice that should not be underestimated.
Since June 27, 2026, a transfer of shares of a legal entity with predominantly real estate assets, which could previously be recorded by an ordinary private deed, may now be void if the new formalities are not respected.
The sale of shares in a predominantly real estate company now requires particular vigilance from the preparation of the transaction.
The involvement of a notary or lawyer — or, only in cases where they have the necessary legal authorization, an accountant — is therefore no longer just a choice intended to legally secure the operation.
For transfers falling within the scope of the new Article 1865-1 of the Civil Code, it is now part of a legal condition for the validity of the act.
The first precaution to take before any transfer of shares in a company directly or indirectly holding real estate assets is therefore to verify its qualification with regard to the tax definition of real estate predominance.
This verification must take place before the signing of the document, and not at the stage of its registration.
