Changing SCI statuts: procedure, majorities, and filing

Changing SCI statuts: procedure, majorities, and filing

The statuts of an SCI (société civile immobilière) are not fixed for life. Over the years a family will want to change the registered name, move the registered office, extend the company's purpose, prorogate its term, admit a new member, or increase or reduce the capital - and each of these is a statute amendment (modification des statuts) that follows a defined procedure. The single most important thing to grasp is the default rule: unless the articles say otherwise, a statute amendment requires the unanimous agreement of all the members. This is the opposite of the position in most commercial companies, where a reinforced majority suffices, and it is the trap that catches families who assume a simple majority will do. This guide sets out how amendments are decided, the one limit no majority can override, when a change preserves the company and when it does not, and the filing and publicity that make the amendment effective against third parties.

The subject matters because a badly taken amendment is fragile and a badly filed one is ineffective. An amendment voted at the wrong majority can be annulled; an amendment that increases a member's commitment without their consent is void as to that member; and an amendment that is never filed at the registry is simply not opposable to the outside world. For an international family running an SCI at a distance, where a change of gérant, a move of the siège, or a prorogation has to be organised across borders, getting both halves right - the decision and the formalities - is what keeps the company's life orderly and its acts secure.

The default is unanimity - and how the articles change it

The governing rule is set by the Civil Code. Amendments to the statuts are decided under the conditions of majority fixed by the statutory provisions or, in the absence of such provisions, by the unanimity of the members (C. civ. Art. 1852). So in an SCI whose articles are silent on the point, no statute amendment can be carried unless every member agrees - a single dissenting member blocks it. To escape unanimity, the articles must contain a clause fixing a majority, and the clause must expressly target the statute amendment: a general majority clause for ordinary decisions does not, by itself, lower the bar for amendments. Very often, well-drafted articles distinguish between an ordinary general meeting for the running of the company and a reinforced majority - or an extraordinary general meeting - reserved for amendments, and it is worth noting that an extraordinary general meeting exists in an SCI only where a clause institutes one; the SCI has no automatic AGE the way a commercial company does.

Two refinements follow from the primacy of the articles. First, the same qualified majority need not apply to every amendment: the articles can require unanimity for the most sensitive changes - a change of the company's purpose, say - and a simple reinforced majority for the rest. Second, where the articles do reserve a decision to unanimity, that protection is itself entrenched: the suppression of a unanimity rule laid down by the articles can only be decided by unanimity (Cass. com., 3 May 1995, no. 97-163). So a family cannot use a majority vote to strip away a unanimity clause it later finds inconvenient - the clause can only be removed on the same unanimous terms that created it. And where unanimity applies, it means what it says: the requirement of unanimity relates to the totality of the members of the company (Cass. civ., 3e, 5 January 2022, no. 20-17428), so every member must concur, not merely those present or those holding a majority of the shares.

The sanction for ignoring the applicable majority is real. Where an amendment is voted without the majority the articles require - for instance a change of the company's purpose carried on an ordinary vote when the articles demanded more - a member can seek its annulment, and the acts taken in reliance on the invalid amendment are exposed in turn. The lesson is to read the articles before convening: identify the majority each type of amendment requires, confirm whether a unanimity clause protects the point in question, and convene on that footing. An amendment carried on the right majority holds; one carried on the wrong majority is an invitation to litigation.

The limit no majority can cross: a member's commitments

Above every majority rule sits a rule of consent. In no case can the commitments of a member be increased without that member's own consent (C. civ. Art. 1836, al. 2). So even a clause allowing amendments by majority, and even a unanimous vote of every other member, cannot bind a member to a greater commitment than they accepted - the increase requires the personal agreement of the member concerned. This is why certain operations that look like ordinary amendments in fact demand individual consent: raising the capital by increasing the nominal value of the existing shares, for example, obliges each member to contribute more and therefore cannot be imposed on a member who does not agree; and a decision that would make the members' indefinite liability heavier, or convert a limited undertaking into an open one, meets the same limit.

The rule protects the member against the majority in the one area where the company's power over the individual is at its most dangerous - the size of the individual's financial exposure. It does not prevent the company from amending its articles; it prevents the company from using an amendment to enlarge what a particular member owes without asking them. In practice, the drafting response is to identify, before any amendment, whether the change would increase a member's commitment, and if it would, to obtain that member's written consent alongside the collective decision. An amendment that respects the majority rule but overlooks this consent is not saved by the majority: it is simply ineffective against the member whose commitment it purported to increase.

How the decision is taken: assembly, written consultation, or unanimous act

The form of the decision is largely left to the articles. A statute amendment may be taken by way of a written consultation, by a unanimous decision recorded in an act, or - most often - in a meeting of the members, and the articles set which of these routes applies and the convocation rules that attend it. Where the decision is taken in a meeting, the convocation must carry the agenda and be accompanied by the documents the members need, and the meeting cannot validly resolve on an amendment that was not on the agenda. Where the articles have instituted an extraordinary general meeting for amendments, that is the forum; where they have not, the amendment is taken in the ordinary way the articles provide, on the reinforced majority they fix.

Because the SCI is a company marked by the personal character of its members (intuitu personae), the articles frequently condition amendments on more than a bare vote - an agrément of any new member the amendment would admit, a prior information of the members, a particular notice period. These are matters of drafting rather than of general law, but they bear directly on the validity of the amendment: a change carried without an agrément the articles required, or without the notice they prescribed, is as vulnerable as one carried on the wrong majority. So the practical sequence is to establish the route (meeting, written consultation, or unanimous act), respect the convocation and agenda requirements, secure any agrément or consent the change calls for, and record the decision in a minute that will support the filing to come.

What majority does your amendment need?

The majority depends on the change and on your articles. Pick the amendment you have in mind - the check shows the rule.

An amendment does not create a new company

A recurring worry is whether changing the statuts breaks the company and starts a new one - with the tax and contractual consequences that would follow. The answer, for a regular amendment, is no. Under Article 1844-3 of the Civil Code, the regular transformation of a company into a company of another form does not entail the creation of a new legal person, and the same holds for the prorogation of the company or any other statute amendment. So a change of name, a move of the registered office, an extension of the purpose, a prorogation, even a transformation carried out regularly - none of these creates a new SCI. The company keeps its legal personality, its registration number, its bank accounts and its history; the amendment simply updates the terms under which the same company continues.

The continuity has practical edges. Because no new person is created, the company's creditors keep all their rights, and the members remain indefinitely liable for the debts arisen before the change; a transformation works no novation, and contracts continue in the name of the same company, which must honour them - though some contracts stipulate the counterparty's agreement in the event of a transformation, so those must be checked. Two situations do break the continuity, and both are governed by unanimity. A transfer of the registered office abroad that changes the company's nationality entails a change of legal person, in the absence of a special convention between the two states, and can only be decided by the unanimity of the members; and a civil company that transformed itself into an association would expose itself to the creation of a new legal person, there being no bridge between those two forms. So the reassurance is broad but not unlimited: ordinary amendments preserve the company, while a change of nationality or a shift to an incompatible form is a different matter, reserved to unanimity and carrying the consequences of a new entity.

Common amendments: name, registered office, purpose, and prorogation

Most amendments a family SCI makes are routine in substance. A change of the company's name, a transfer of the registered office and an extension of the purpose call for no particular substantive remark; they are decided as statute amendments and then filed and published. Two of them carry a property-registry consequence worth noting: where the SCI owns real property or holds real-property rights registered with the land-registry service, a change of name or a transfer of the registered office must be published with that service, because the description of the owner on the property records has to be kept accurate. The purpose is treated as at the company's constitution - the same care over its wording applies - and a mere extension of the purpose, provided it does not by itself dissolve the original company, does not create a new legal person.

Prorogation deserves separate attention because timing governs it. The prorogation of the company is decided by the unanimity of the members or, where the articles so provide, by the majority they fix for amendments, and the procedure should be envisaged a year before the company's term. If it is overlooked, the consequences are severe: the absence of prorogation is legally assimilated to a dissolution, and the registrar can note the company's dissolution of its own motion. Since the loi 2019-744 of 19 July 2019 there is a catch-up route - within the year following the term's expiry, any member may ask the president of the court to record the members' intention to prorogate and authorise a regularising consultation within three months, appointing a mandatary if needed; where the company is then prorogated, the acts done in conformity with the law and the former articles between the term and the prorogation are deemed regular (C. civ. Art. 1844-6). But the catch-up is a remedy, not a plan: if the company is not prorogated in the prescribed forms, it comes to an end automatically (C. civ. Art. 1844-7, 1°), and prorogation cannot be inferred from the mere continuation of the company's activity (Cass. com., 13 September 2017, no. 16-12479). So a prorogation is a change to organise well in advance, on the majority the articles require, and to record and file like any other amendment.

Is your amendment properly filed?

A voted amendment is not effective against outsiders until it is filed and published. Pick the formality you are unsure about - the check explains it.

Filing and publicity: making the amendment effective

An amendment is only half-done when the members have voted it. To take effect against third parties it must be published and filed, and French law lays down a sequence of formalities that depend on the nature of the change. The first is the legal-announcement notice. If the amendment changes a mention that was published in a support of legal announcements at the company's constitution, a modificative notice must be inserted in a support of legal announcements of the département of the registered office (décret 78-704 of 3 July 1978, art. 24). The notice is signed by the gérant and gives the company's name, its form (société civile immobilière), its capital, the address of the registered office, its registration number, the reference of the constitutive notice, and the modifications made - reproducing the old mention beside the new. Amendments that touch mentions never published at constitution require no such notice.

The second formality is the deposit at the registry. Within one month of their date, all acts, deliberations or decisions amending the statuts or their annexes are deposited at the registry of the commercial court of the place of the registered office, accompanied by a copy of the statuts brought up to date with the changes. Alongside the deposit, any fact or act requiring the rectification or completion of a mention entered on the trade and companies register (RCS) at registration must give rise to an inscription modificative within one month (C. com. Art. R. 123-66), and the company must likewise update its entry on the register of beneficial owners within thirty days of the change (C. mon. et fin. Art. R. 561-55). These filings are made by the gérant through the Guichet unique, the single electronic portal that has been the mandatory route for company formalities since 1 January 2023 (C. com. Art. L. 123-33), replacing the former centres de formalités des entreprises. Where several connected modifications are filed together within the one-month period, they may be made on a single declaration. After any amendment, a member may ask the company for a certified copy of the statuts in force at the date of the request (décret 78-704, art. 31).

The sanction for neglecting these formalities is inopposability. So long as they have not been deposited, the acts, deliberations and decisions subject to deposit at the registry are inopposable to third parties and to the administrations - though the third parties may themselves choose to rely on them, and the rule does not apply where the company proves that, at the time they dealt with it, the third parties or administrations had knowledge of the change (C. com. Art. L. 123-9). A missed formality can be regularised: where, on a statute amendment, a formality has been omitted or irregularly carried out, any interested party may ask the court to order the regularisation under a penalty (astreinte), and the public prosecutor may act to the same end. And the gérants bear a personal exposure - the gérants in office when the statuts are amended are jointly liable for the harm caused by the omission or the irregular accomplishment of a prescribed formality, an action that is prescribed after ten years from the publication of the amending act (C. civ. Art. 1840); giving, in bad faith, inaccurate or incomplete indications for a registration or a modificative mention is, in addition, a criminal offence. So the filing is not a clerical afterthought but the step that makes the amendment count, and the one whose neglect falls back on the gérant.

Amending the statuts of an SCI - at a glance

Frequently Asked Questions

This article is for general information only and states French law as published in the sources available at the date shown above. It does not constitute legal advice. The majority and formalities for a given amendment depend on the SCI's articles and on the nature of the change. Always seek qualified legal advice before amending the statuts of an SCI.