Decision-making in a civil real estate business (SCI)

Verified 13 January 2023 - Directorate for Legal and Administrative Information (Prime Minister)

Decisions can be made in different ways. Certain decisions may be taken by the manager or managers of the business according to the powers given by the statutes. Other decisions are made in meeting of partners or, if the articles of association so provide, by means of a written consultation. Partners may also make a decision by expressing their consent in a act.

Meeting of partners

The statutes provide for the bodies competent to convene meetings. In general, it is of the manager(s), but may be another person (for example, an agent, partner).

Where the decision taken does not alter the statutes of the business (e.g. approval of annual accounts), the latter shall be taken by ordinary general meeting (AGO)

When it amends the statutes, we are talking aboutspecial general meeting (AGE)

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Ordinary General Assembly (AGO) or Extraordinary General Assembly (AGE)

In a 15-day period prior to the date of the meeting, the following documents must be sent to the partners:

  • Text of proposed resolutions
  • Manager Report
  • Where there is one, the auditor's report

These documents shall also be made available at the seat of the business.

Annual General Meeting (AGOA)

In a 15-day period prior to the date of the meeting, the following documents must be sent to the partners:

  • Text of proposed resolutions
  • Management Report of the manager
  • Annual accounts
  • When the business belongs to a business group:
    • Consolidated accounts
    • Group Management Report
  • Where there is one, the auditor's report

The inventory of the business must be made available to the partners at the business’s headquarters. They cannot make a copy of the document.

If one of the partners has not received a summons, then the decisions taken at the relevant meeting may be considered non-existent.

FYI  

The summons may also be verbal and without delay provided that all the members are well present or represented at the meeting.

It is the statutes that specify the rules of quorum and majority for a collective decision to be taken.

If the articles of association are not specific, decisions which exceed the powers of the manager must be taken by the meeting unanimously of the members. This can be any decision amending the statutes or not.

When a decision has to be unanimous, it has to be unanimous of all partners and not just unanimously by the partners present and represented.

On the other hand, the dismissal of the manager may be at the majority (half of the votes).

Where one of the shares in the business is usufruct, on bare owner and theusufructuary may participate in meetings.

At the end of each meeting of partners, a report.

It contains the next items :

  • Date and place of meeting
  • Surname, first name and role of the manager
  • Names and forenames of members present or represented, indicating the number of shares held by each
  • Documents and reports submitted to the Assembly
  • Summary of the discussions
  • Texts of resolutions put to the vote
  • Result of votes

The minutes must be signed by the officer or officers and, where there is one, the presiding officer.

Each record must then be added to the CW register of the business.

Written consultation

The members may decide in the articles of association to take certain decisions by means of a written consultation.

Before a decision by written consultation is taken, a number of documents must be sent to each of the partners.

These documents (management report, draft of the decisions to be taken, etc.) must be sent by registered letter.

The members must give their vote in writing within a period laid down in the articles of association. He usually runs from the receipt of documents.

A decision shall be adopted at unanimity of members unless the statutes provide for different rules.

If one of the partners does not participate, the decision cannot be made or will not be valid.

One report must be established after each written consultation in order to maintain written evidence of what has been decided.

It contains the next items :

  • Date of decision
  • Names and forenames of the members who replied, indicating the number of shares held by each
  • Documents and reports sent
  • Texts of resolutions put to the vote
  • Result of votes for each decision

The justification for compliance and the responses of each partner for each decision taken during the written consultation should also be appended.

The minutes must be signed by the manager(s).

Each report must then be inserted in the CW register business.

Decision taken in an act

Decisions which may be taken by means of an act must be listed in the statutes of the business. They should be taken at unanimity associates.

The deed must be signed by each partner.

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