Key Benefits:
President of the Republic,
On the report of the Prime Minister and the Minister of Economy, Finance and Industry,
Having regard to the Constitution, including article 38;
Considering the monetary and financial code;
In light of Act No. 70-9 of 2 January 1970 regulating the conditions for the exercise of activities relating to certain transactions relating to buildings and trade funds;
Having regard to Act No. 2005-842 of 26 July 2005 for the confidence and modernization of the economy, including its Article 50;
The Council of State heard;
The Council of Ministers heard,
Order:
It is added to Article L. 214-1 of the monetary and financial code a paragraph as follows:
« 5° Real estate collective investment organizations. »
Chapter IV of title I of book II of the monetary and financial code adds a section 5 of the following provisions:
“Section 5
“Real collective investment organizations
"Subsection 1
“Common provisions
“Paragraph 1
"Constitution and rules of composition of the organization's assets
real estate investments
"Art. L. 214-89. - Real estate collective investment organizations take the form of either real estate equity or real estate investment companies.
"Art. L. 214-90. - The purpose of the real estate collective investment organizations is to invest in buildings that they give for rent or that they are to build exclusively for the purpose of their rental, that they hold directly or indirectly, including in the future state of completion, any operations necessary for their use or resale, the realization of works of all kinds in these buildings, including operations related to their construction, renovation and rehabilitation for the purpose of their rental and accessories Real estate assets cannot be acquired exclusively for resale.
"Real estate collective investment organizations may include different classes of shares or shares under the conditions set out respectively by the settlement of the real estate investment fund or the statutes of the investment company with variable capital preponderance according to the requirements of the general regulation of the Autorité des marchés financiers.
"Art. L. 214-91. - I. - The constitution, transformation, merger, splitting or liquidation of a real estate collective investment organization are subject to the approval of the Autorité des marchés financiers. The accreditation file, the content of which is set out in the general regulation of the Autorité des marchés financiers (AMF), describes in particular the investment policy that the real estate investment organization intends to undertake and its financing choices, including the use of debt.
“II. - Real estate collective investment organizations, the depositary, referred to in Article L. 214-117, and the management company, referred to in Article L. 214-119, act for exclusive benefit of subscribers. They must present sufficient guarantees with respect to their organization, their technical and financial means, the honesty and experience of their leaders. They must make arrangements for the security of operations.
"Organisms and persons referred to in articles L. 214-112, L. 214-117, L. 214-119 and L. 214-120 must act independently from each other.
"III. - The Autorité des marchés financiers defines the conditions under which real estate collective investment organizations must inform their subscribers and may be advertised, in particular audiovisual, or demarcated. The general regulation of the Autorité des marchés financiers specifies the content of the information document to be prepared by these organizations.
"IV. - The Autorité des marchés financiers may withdraw its approval to any real estate collective investment agency.
"Art. L. 214-92. - I. - In the conditions and limits established by decree in the Council of State, the assets of a collective real estate investment agency are exclusively constituted:
“(a) Buildings constructed or acquired for the purpose of leasing and real rights relating to such property and listed by the decree in the Council of State mentioned in the preceding paragraph;
“(b) Parts of partnerships that are not admitted to negotiations on a market referred to in Articles L. 421-3, L. 422-1 and L. 423-1 and meet the following conditions:
« 1° The partners are liable beyond their contributions except in cases where, pursuant to section L. 214-55 or an equivalent provision of foreign law, they are held liabilities only within the limits of their contributions;
« 2° The assets consist mainly of buildings acquired or built for the purpose of rental, real rights relating to such property, rights held as a credit-preneur relating to lease agreements relating to buildings for the purpose of leasing, or direct or indirect interest in companies whose composition of the assets meets the conditions of this b;
« 3° Other assets are current account advances referred to in Article L. 214-98, receivables arising from their main activity, liquidity referred to in i or liquid financial instruments referred to in h;
« 4° The financial instruments they issue are not allowed to negotiations on a market referred to in Articles L. 421-3, L. 422-1 and L. 423-1;
"(c) Shares of partnerships other than those mentioned in b, shares or shares of companies other than partnerships that are not admitted to negotiations on a market referred to in Articles L. 421-3, L. 422-1 and L. 423-1. These companies meet the following conditions:
« 1° The liability of partners or shareholders is limited to the amount of their contributions;
« 2° The assets consist mainly of buildings acquired or constructed for the purpose of rental, real rights relating to such property, rights held as a credit-preneur relating to lease agreements relating to buildings for the purpose of leasing or direct or indirect interest in companies whose composition of the assets meets the conditions of this Agreement;
« 3° The financial instruments they issue are not allowed to negotiations on a market referred to in Articles L. 421-3, L. 422-1 and L. 423-1;
"(d) Shares negotiated on a market referred to in Articles L. 421-3, L. 422-1 and L. 423-1 and issued by a corporation whose assets are principally made up of real property acquired or built for the purpose of leasing, real rights relating to such property, rights held as a licensorship related to leasing contracts relating to real estates for the purpose of leasing or direct or indirect participation
“e) shares or shares of real estate collective investment organizations and shares, shares or rights held in foreign law organizations with an equivalent object, regardless of their form;
“(f) Financial instruments referred to in I of Article L. 211-1 admitted to negotiations on a market referred to in Articles L. 421-3, L. 422-1 and L. 423-1 and the financial instruments listed in II of Article L. 211-1 with the exception of those provided in 4;
“(g) Shares or shares of securities collective investment organizations, with the exception of those referred to in subsections 9 to 14 of chapter IV, section 1, title I, of Book II, approved by the Autorité des marchés financiers or authorized to commercialize in France;
“(h) Liquid deposits and financial instruments defined by decree in the Council of State;
“(i) Liquidity defined by decree in the Council of State;
“j) Current account advances made under section L. 214-98.
"A decree in the Council of State defines the rules of dispersal and capturing of risks, especially in terms of construction, applicable to the real estate collective investment organization.
“II. - A real estate collective investment organization and the companies mentioned in b of the I cannot hold shares, shares, financial rights or voting rights in an entity, regardless of its form, whose partners or members respond indefinitely and in solidarity with the debts of the entity.
"Art. L. 214-93. - In the conditions and limits set by decree in the Council of State, the assets of a collective investment agency in real estate are composed:
« 1° At least 60% of real estate assets. In the case of the investment company with variable capital preponderance, these real estate assets are those mentioned in a to d of Article L. 214-92, the assets referred to in a to c of the article referred to above shall represent a minimum of 51% of the assets. In the case of the real estate investment fund, these assets are those mentioned in article L. 214-92 (a) and (b);
« 2° At least 10% of the assets mentioned at the h and i of Article L. 214-92. These assets must be free of all security rights or rights for the benefit of third parties.
"Art. L. 214-94. - A real estate collective investment agency may, within the limits and conditions established by decree in the Council of State, enter into contracts constituting financial instruments for term referred to in the II of Article L. 211-1 except those provided for in the 4th.
"Art. L. 214-95. - A real estate collective investment organization may borrow within 50% of the value of the real estate assets referred to in a to c of Article L. 214-92.
"For the assessment of this limit, all borrowings and debts are taken into account by the real estate collective investment organization and by the companies referred to in (b) and (c) of Article L. 214-92, up to the percentage of participation held directly or indirectly by the organization in these companies.
"The obligations relating to the information of shareholders and shareholders on the conditions under which the real estate collective investment organization may resort to debt are specified by the general regulation of the Autorité des marchés financiers.
"The conditions for the application of this article, particularly with regard to the capacity and nature of the debt, are fixed by decree in the Council of State.
"Art. L. 214-96. - A real estate collective investment organization may borrow cash within 10% of the value of its assets other than those referred to in L. 214-95.
"The conditions for the application of the limit mentioned in the preceding paragraph are fixed by decree in the Council of State.
"Art. L. 214-97. - Within the limits and conditions established by a decree in the Council of State, a real estate collective investment agency may grant on its assets the necessary guarantees for the conclusion of contracts under its activity, including those relating to the establishment of the loans mentioned in articles L. 214-95 and L. 214-96 and those mentioned in article L. 214-94.
"Art. L. 214-98. - Within the limits and conditions established by decree in the Council of State, a real estate collective investment agency may make advances in current account to the companies mentioned in article L. 214-92 (b and c) of which it holds directly or indirectly at least 5% of the social capital.
"Art. L. 214-99. - The rules for the dispersion and cap of risk and the quotas referred to in articles L. 214-92 and L. 214-93 shall be complied with no later than three years after the date of issuance of the approval to the real estate collective investment agency.
"A decree in the Council of State determines the thresholds, cases and modalities in which it may, on an exceptional and limited basis, be derogated from the quotas provided for in Article L. 214-93.
"Art. L. 214-100. - Under the terms and conditions set out in the general regulation of the Autorité des marchés financiers, any holder or shareholder must inform the person referred to in the information document provided for in Article III L. 214-91 as long as it passes the threshold of 10% of the shares or shares of the real estate collective investment organization.
"Art. L. 214-101. - Where a shareholder or shareholder, who holds more than 20% and less than 99% of the shares or shares of the real estate collective investment organization, requests the redemption of shares or shares, the redemption may be suspended on an interim basis under the conditions provided for by the general regulation of the Autorité des marchés financiers as soon as it exceeds a percentage of the number of shares or shares of the real estate collective investment organization set by the regulation.
"For the calculation of the quotities referred to in the preceding paragraph, the shares or shares held by the entities that control, within the meaning of Article L. 233-16 of the Commercial Code, the person who seeks the redemption or is controlled under the same conditions by the entity and the shares or shares of the entities that are controlled under the same conditions by the entity that controls that person.
"Art. L. 214-102. - Creditors whose title is the result of any transaction relating to the assets of a real estate collective investment agency shall only take action on these assets, except the assets referred to in 2° of Article L. 214-93.
"The creditors of the depositary cannot continue to pay their claims on the assets of a real estate collective investment organization retained by him.
"Art. L. 214-103. - The minimum amount of the net assets of the real estate collective investment organization, as defined by the general regulation of the Autorité des marchés financiers, is fixed by decree.
"If it is not satisfied with this obligation within three years from the date of issue of the approval of the real estate collective investment organization, the real estate collective investment agency is dissolved and the shareholders or shareholders are reimbursed to the maximum of their rights in the fund or in the corporation under the conditions provided by the general regulation of the Autorité des marchés financiers.
"Art. L. 214-104. - The general regulation of the Autorité des marchés financiers sets the conditions for the issuance, subscription, assignment and redemption of shares or shares issued by real estate collective investment organizations.
"Art. L. 214-105. - The real estate collective investment agency must necessarily sign an insurance contract guaranteeing its civil liability because of the properties it owns.
“Paragraph 2
« Accounting and financial provisions
"Art. L. 214-106. - The settlement of a real estate investment fund or the statutes of a real estate preponderance investment company with variable capital fixed the duration of the accounting exercises that cannot exceed twelve months. However, the first exercise may extend over a longer period without exceeding eighteen months.
"In a period of six weeks from the end of each semester of the fiscal year, the real estate investment company with variable capital or the fund management company shall prepare the inventory of the assets of the real estate collective investment organization under the control of the depositary.
"The investment company with variable capital preponderance or the fund management company shall establish the annual accounts of the real estate collective investment organization and a written report on the management of the real estate collective investment organization whose content, defined by decree in the Council of State, shall include the situation of the debt and liquidity of the real estate collective investment organization. This report is sent to shareholders or shareholders under conditions and limitations specified by the general regulation of the Autorité des marchés financiers.
"By derogation from the provisions of the first paragraph of Article L. 123-22 of the Commercial Code, the accounting of a real estate agency may be held in any monetary unit according to the terms set by decree.
"The documents mentioned in this article are made available to the auditor under the conditions established by decree in the Council of State.
"Art. L. 214-107. - The net result of a real estate collective investment organization is equal to the sum:
« 1° Goods relating to real estate assets referred to in a to c of I of Article L. 214-92 for the fixed capital real estate investment company and to a and b of the same article for the real estate investment fund, reduced by the amount of the related costs and expenses;
« 2° Products and remuneration arising from the management of other assets reduced by the amount of costs and expenses;
« 3° Other products, reduced management fees and other costs and expenses, which cannot be directly related to the assets mentioned in 1° and 2°.
"The terms and conditions for the assignment of costs and expenses from 1° to 3° are defined by decree.
"Art. L. 214-108. - Payment of the distribuable amounts defined in sections L. 214-128 and L. 214-140 shall be made within a maximum period of five months after the end of the fiscal year.
"Art. L. 214-109. - Under the conditions and according to a periodicity provided by the general regulation of the Autorité des marchés financiers, the investment companies with variable capital preponderance and the management companies of the real estate investment fund establish an information document which is made available to the shareholders and shareholders respectively.
"Art. L. 214-110. - I. - The auditor certifies the annual accounts of the real estate collective investment organization. Under conditions defined by decree in the Council of State, it shall report, as the case may be, to the General Assembly of the investment company with variable capital preponderance or to the management company of the real estate investment fund on merger transactions, in-kind contributions, distribution of deposits, splitting, dissolution and liquidation of the real estate collective investment organization.
"In conditions established by decree in the Council of State, it certifies, before publication or dissemination, the accuracy of the periodic information referred to in article L. 214-109.
“II. - The provisions of section L. 214-14 apply under the same conditions to the auditor of the real estate collective investment organization.
“Paragraph 3
« Evaluation of real estate assets
"Art. L. 214-111. - Under the conditions established by the general regulation of the Autorité des marchés financiers, real property and rights held directly or indirectly by the real estate collective investment organization and by the companies referred to in Article L. 214-92 b and c of the I are evaluated by two real estate assessors who act independently from each other. They jointly prepare, under their responsibility, a written summary report on the fulfilment of their mission.
"The investment company with variable capital preponderance or the fund management company shall make all necessary arrangements to enable the evaluators to complete their mission.
"The general regulation of the Autorité des marchés financiers sets out the evaluators' mission, including the division of tasks between them, the assessment rules and the conditions for the preparation of the report.
"This report is communicated to the real estate investment company with variable capital, to the fund management company, to the depositary and to the auditor, as well as to any holder of shares or shareholders of the real estate collective investment agency by making the request under conditions fixed by decree in the Council of State.
"Art. L. 214-112. - Real estate evaluators must have an experience, competence and organization that is appropriate to the exercise of their functions in the field of real estate valuation.
"Previous to its designation, any real estate evaluator shall inform the real estate investment company with variable capital or the fund management company of the existence or not of an insurance contract covering the monetary consequences of its professional civil liability.
"This information is included in the management report prepared by the investment company with variable capital equity or by the fund management company. This report mentions, where applicable, the level of guarantees provided by insurance in professional civil liability.
"Art. L. 214-113. - The real estate evaluator, any member of a governing body or any person who, in any capacity, participates in the direction or management of a real estate evaluator or who is employed by the real estate evaluator is held in professional secrecy under the conditions and penalties set out in sections 226-13 and 226-14 of the Criminal Code.
"As part of their mission, real estate evaluators are discarded from the obligation of professional secrecy to the auditor of the real estate collective investment organization, the Autorité des marchés financiers, the Commission for the Control of Insurance, Mutuals and Provident Institutions, the Banking Commission and the Tax Administration.
"Art. L. 214-114. - Under the conditions specified by the general regulation of the Autorité des marchés financiers, each real estate evaluator is designated by the real estate investment company with variable capital or the fund management company for a period of four years after the approval of the Autorité des marchés financiers.
"The investment company with variable capital preponderance or the fund management company cannot terminate the functions of the real estate evaluator before the term provided for in the first paragraph only after obtaining the agreement of the Autorité des marchés financiers.
"The identity of the designated real estate reviewers is included in the information document, as provided for in the general regulation of the Autorité des marchés financiers, of the real estate collective investment agency.
"Art. L. 214-115. - Real estate evaluators are responsible, both with respect to the real estate preponderance company with variable capital or the real estate investment fund management company and the depositary, for the harmful consequences of faults and negligence committed by them in carrying out their mission.
"Art. L. 214-116. - Real estate investment companies with variable capital equity or fund management companies are required to provide real estate reviewers with the designation of all relevant documents, information and investigative means to carry out their mission.
"When real estate reviewers are unable to complete all or part of their mission because, despite their requests, they were unable to obtain the elements or to have the means of investigation referred to in the first paragraph, they refer to them in their report. This report outlines the diligence they have performed. They also inform the Autorité des marchés financiers of this situation according to the terms defined by the general regulation of the Autorité des marchés financiers.
“Paragraph 4
"Real Estate Investment Organization Depositary
"Art. L. 214-117. - The depositary is separate from the real estate collective investment agency, the management company and the real estate assessor. It has the status of credit institution or investment company authorized to supply the services referred to in 1° of Article L. 321-2. The depositary is designated by the real estate collective investment organization and referred to in the information document provided for in Article L. 214-91 III.
"The depositary must have its head office in France.
"His liability is not affected by the fact that he entrusts to a third party all or part of the assets he has custody of.
"Art. L. 214-118. - I. - The depositary shall:
« 1° The preservation and control of the inventory of the assets of the real estate collective investment organization excluding the assets referred to in (a) of Article L. 214-92;
« 2° The control of the inventory of the assets of the real estate collective investment organization referred to in a to c of Article L. 214-92;
« 3° To ensure the regularity of the decisions of the investment company with variable capital and the management company.
"The scope and modalities for the performance of the depositary's missions are defined in the general regulation of the Autorité des marchés financiers.
“II. - The depositary shall also provide for all holders of shares, if any, the payment, under the conditions provided by the general tax code, of the tax on the property surplus-values realized directly or indirectly by the real estate investment fund.
“Paragraph 5
"Organization Management Corporation
real estate investments
"Art. L. 214-119. - Management of real estate collective investment organizations is carried out by a portfolio management company referred to in section L. 532-9 and designated in the statutes or regulations of the real estate collective investment organization.
"This management company has a specific activity program to manage real estate collective investment organizations and civil real estate investment companies and, incidentally, provide real estate investment advice.
"It may also be a leader of the companies in which the real estate collective investment organization it manages the shares referred to in Article L. 214-92 b and c. I.
"Subsection 2
“Special rules on investment companies
with variable capital
"Art. L. 214-120. - The investment company with variable capital preponderance is an anonymous corporation with variable capital subject to the rules of this subsection.
" Subject to the provisions of sections L. 214-101 and L. 214-126 and under the conditions set out in the general regulation of the Autorité des marchés financiers, the shares of the investment company with variable capital preponderance shall be issued and redeemed at the request of the shareholders at the liquidative value increased or decreased, as the case may be, of fees and commissions.
"The amount of the capital is equal at any time to the value of the net assets of the investment company with variable capital preponderance, deducting the distribuable amounts defined in 1° of Article L. 214-128.
"The initial capital of an investment company with variable capital preponderance cannot be less than an amount fixed by decree.
"Art. L. 214-121. - By exception, respectively, in the first paragraph of Article L. 225-51-1, in the first paragraph of Article L. 225-53 and in the third paragraph of Article L. 225-59 of the Commercial Code, the functions of Director General, or those of Director General Delegate or those of Chairman of the Single Director General or Director General shall, as the case may be, be exercised by the Management Company.
"The management company shall designate a permanent representative subject to the same conditions and obligations and incurs the same responsibilities as if it exercised in its own name one of the functions referred to in the first paragraph, without prejudice to the joint responsibility of that corporation it represents.
"When it terminates the functions of its representative, the management company is required to provide the replacement at the same time.
"Art. L. 214-122. - The investment company with variable capital preponderance and the management company shall be liable, either individually or in solidarity, as the case may be, to third parties or shareholders, or to infringements of the legislative or regulatory provisions applicable to investment companies with variable capital preponderance, or to the violation of the company's statutes or their faults.
"Art. L. 214-123. - The provisions of 1, 3 to 8, of the second paragraph of 9, of 10 and 11 of Article L. 214-17 apply in the same conditions to investment companies with variable capital preponderance.
"Art. L. 214-124. - A investment company with variable capital preponderance may consist of cash contributions, in-kind contributions of real estate assets referred to in Article L. 214-92, merger or split. It may also be incorporated by merging, splitting or processing civil real estate investment companies.
"In-kind contributions may be made to an investment company with variable capital preponderance after its constitution, in particular in the event of a merger with a civil real estate investment company or another investment company with variable capital preponderance, or when a civil real estate investment company transmits to it, through splitting, part of its heritage.
"The release of contributions and, after the company's constitution, the subscriptions of shares cannot be made by compensation with liquid and payable claims held on the company.
"Any in-kind contribution is assessed by the External Auditor under his or her responsibility, in the light of the estimate by two real estate assessors meeting the conditions referred to in section L. 214-112 and designated by the Management Corporation. The report of the Auditor is attached to the statutes and filed at the court office. The statutes contain the assessment of in-kind contributions made during the formation of the investment company with variable capital preponderance. In-kind contributions made during the life of the company are the subject of information from shareholders under the conditions defined by the general regulation of the Autorité des marchés financiers. A decree in the Council of State determines the conditions for the application of this paragraph.
"The general regulation of the Autorité des marchés financiers sets, if any, by derogation from the second paragraph of Article L. 225-128 of the Commercial Code, the conditions and limits of the contributions made both to the constitution and during the life of the company.
"Art. L. 214-125. - Articles L. 224-1, L. 224-2, L. 225-3 to L. 225-16, L. 225-258 to L. 225-270, L. 231-1 to L. 231-8, L. 242-31 and L. 247-10 of the Commercial Code are not applicable to investment companies with variable capital preponderance.
"Art. L. 214-126. - The company's redemption of its shares may be suspended, on a provisional basis, by the board of directors or the board of directors, in the event of force majeure and if the interest of all shareholders the order, under conditions fixed by the general regulation of the Autorité des marchés financiers.
"The general regulation of the Autorité des marchés financiers sets out the cases and conditions under which the statutes of the investment company with variable capital preponderance provide, if any, that the issuance of shares is suspended provisionally.
"Art. L. 214-127. - At least 30 days before the meeting of the General Assembly to approve them, the investment company with variable capital preponderance is required to publish its results account and balance sheet. It is not permitted to publish them again after the General Assembly unless the General Assembly has amended them.
"Art. L. 214-128. - I. - The sums distributed by an investment company with a variable capital preponderance in respect of a fiscal year shall be by:
« 1° The distribuable result for the products made by the corporation equal to the net result referred to in Article L. 214-107, increased the carry-over, increased or decreased the balance of the regularization accounts defined by decree;
« 2° The surplus-values made when the assets referred to in a of section L. 214-92, the shares of companies referred to in b or c of that section that are not subject to corporate tax or equivalent tax and the shares or shares of companies referred to in c of I of that section when they are entitled to a tax exemption regime on the companies on their property on their property. These surplus-values are those realized during the fiscal year, net of fees and reduced net deductions of costs realized on these same assets during the same fiscal year, increased net surplus-values of the same kind realized in previous years that have not been distributed and increased or decreased in the balance of the regularization accounts defined by decree.
“II. - The company distributes the sums defined in I:
« 1° At a minimum of 85%, the fraction of the distribuable result relating to the products of the assets referred to in paragraph I of Article L. 214-92, in the course of their realization. For the determination of the amount to be distributed, net proceeds are reduced by a flat rate equal to 1.5% of the cost of the buildings referred to in paragraph I of Article L. 214-92 held directly by the corporation;
« 2° At a minimum of 50%, the surplus-values defined at 2° of I and realized during the previous fiscal year or fiscal year. For the determination of the amount to be distributed, the net surplus-values made on the buildings mentioned in paragraph I of Article L. 214-92 held directly by the company are increased from the flat-rate slaughter practiced in accordance with 1° since their acquisition;
« 3° The entire fraction of the distribuable result for the products distributed by the companies referred to in c of I of section L. 214-92 when they receive a tax exemption regime on the companies on their real estate activity for the fiscal year of their realization.
"III. - For the purposes of 1° and 2° of II, the goods and surplus-values made by a corporation referred to in (b) or (c) of section L. 214-92 and that are not subject to corporate tax or equivalent tax shall be deemed to have been made, in accordance with its rights, by the investment corporation with a variable capital preponderance in respect of the course that follows that in the year
"They are not taken into account for the determination of amounts to be distributed to goods and surplus-values relating to real estate assets located outside France when tax treaties concluded with France to avoid double tax on income tax provide for the taxation of these products and surplus-values instead of assets.
"Art. L. 214-129. - By derogation from the provisions of the trade code, the conditions of liquidation and the modalities of the distribution of assets shall be determined by the statutes of the corporation. The management company shall assume the functions of liquidator under the control of the depositary; If not, the liquidator shall be appointed to justice at the request of any shareholder, among the approved portfolio management companies.
"Subsection 3
"Special rules on real estate investment funds
"Art. L. 214-130. - Subject to the provisions of Article L. 214-101 and the second and third paragraphs of Article L. 214-136, the real estate investment fund, which has no legal personality, is a co-ownership consisting of real estate assets, financial instruments and other assets as defined in Article L. 214-92, whose shares are, under the conditions fixed by the general regulation of the Authority
"Do not apply to the real estate investment fund the provisions of the civil code relating to indivision or those of sections 1871 to 1873 of the same code relating to participating companies.
"Art. L. 214-131. - In any case where provisions relating to real estate or to corporations and financial instruments require the indication of the name, first name and domicile of the owner of the asset or title, as well as for all transactions made on behalf of the co-owners, the designation of the real estate investment fund or, if any, of a fund compartment, may be validly substituted for that of all co-owners.
"Art. L. 214-132. - The real estate investment fund is, under the conditions provided by the general regulation of the Autorité des marchés financiers, constituted by a portfolio management company responsible for its management.
"The management company sets out the settlement of the fund.
"This regulation provides for the establishment of a supervisory board composed only of representatives of shareholders. The Board, composed of at least five members and not more than nine members, exercises oversight over the management of the fund. He cannot interfere in this management. The general regulation of the Autorité des marchés financiers sets out the conditions under which it carries out its mission, the terms and conditions for the designation of its members and the means available to them.
"Whenever it considers it necessary and at least once a year, the Supervisory Board shall prepare a report on its mission. The general regulation of the Autorité des marchés financiers sets out the conditions under which this report is brought to the attention of shareholders.
"The preceding paragraph does not apply where the information document referred to in Article L. 214-91 provides that the real estate investment fund is reserved for a maximum of 20 shareholders or a class of investors whose characteristics are defined by this general regulation.
"Subscription or acquisition of shares of a real estate investment fund shall take acceptance of its settlement.
"Art. L. 214-133. - The real estate investment fund is represented in respect of third parties by the company responsible for its management. This company may take legal action to defend or assert the rights or interests of shareholders.
"The central administration of the real estate investment fund is located in France.
"Art. L. 214-134. - The management company shall be liable to third parties or shareholders, i.e. infringements of the legislative or regulatory provisions applicable to real estate investment funds, or breach of the settlement of the fund or its faults.
"Art. L. 214-135. - A real estate investment fund may be made by cash contributions, in-kind contributions of real estate assets referred to in Article L. 214-92, merger or split. It may also be constituted by merging, splitting or transformation of civil real estate investment companies.
"In-kind contributions may be made to a real estate investment fund after its constitution, in particular in the event of a merger with a civil real estate investment corporation or another real estate investment fund or when a civil real estate investment corporation transmits to it, through splitting, part of its assets.
"The release of contributions and, after the establishment of the fund, the subscriptions of shares cannot be made by compensation with liquid and payable claims held on the fund.
"The general regulation of the Autorité des marchés financiers sets out the conditions and limits of contributions to the fund.
"The creation of real estate investment funds by merging or splitting civil real estate investment companies, as well as the transformation of civil real estate investment companies into real estate investment funds, result in the dissolution of the companies concerned and the universal transfer of their assets to the fund without the need to be liquidated.
"Any in-kind contribution is assessed by the External Auditor under his or her responsibility, in the light of the estimate by two real estate assessors meeting the conditions referred to in section L. 214-112 and designated by the Management Corporation. When the in-kind contribution is made at the time of the creation of the real estate investment fund, the regulations contain the assessment of these contributions. The report of the Auditor is attached to the regulations. It is available to shareholders. In-kind contributions made after the establishment of the real estate investment fund are the subject of information from the holders under the conditions defined by the general regulation of the Autorité des marchés financiers.
"A decree in the Council of State sets the conditions for the application of this article.
"Art. L. 214-136. - The shares are totally released from the show.
"The redemption by the real estate investment fund of its shares may be suspended provisionally by the management company in case of force majeure and if the interest of all shareholders the order, under conditions fixed by the general regulation of the Autorité des marchés financiers.
"The general regulation of the Autorité des marchés financiers sets out the cases and conditions under which the settlement of the fund provides, if any, that the issuance of shares is suspended provisionally.
"Art. L. 214-137. - The provisions of Article L. 214-29 apply to the real estate investment fund.
"Art. L. 214-138. - I. - The management company is required to subscribe to the declarations provided for in Article L. 233-7 of the Commercial Code for all shares held by the real estate collective investment organizations it manages.
“II. - The provisions of Articles L. 233-14 and L. 247-2 of the Commercial Code apply to the management company.
"Art. L. 214-139. - The companies referred to in section L. 214-92 (b) in which the real estate investment fund holds a direct or indirect interest are governed by section 8 of the General Tax Code, are not liable, as a right or as an option, of corporate tax or of an equivalent tax, and may not hold, directly or indirectly, any rights held as a credit-first-claim relating to contracts of credit.
"Art. L. 214-140. - I. - The amounts distribuable by a real estate investment fund for a fiscal year are made by:
« 1° The distribuable result of the proceeds made by the fund, which is equal to the net result referred to in Article L. 214-107, increased the carry-over, increased or decreased the balance of the regularization accounts as defined by decree;
« 2° The surplus-values of disposal of assets referred to in (a) and (b) of Article L. 214-92 realized during the year, net costs, increased or decreased from the balance of the regularization accounts as defined by decree;
« 3° The surplus-values of disposal of assets other than those referred to in (a) and (b) of section L. 214-92 realized during the fiscal year, net fees and reduced net impairments of fees realized during the same fiscal year, plus any similar surplus-values made in prior years that have not been the subject of a distribution and, if applicable, reduced by a decree
"For the purposes of the I, the products and gains made by a corporation referred to in section L. 214-92 (b) are deemed to be made by the real estate investment fund to be in excess of its rights in that corporation.
“II. - The real estate investment fund distributes:
« 1° At a minimum of 85%, the fraction of the distribuable result within the meaning of 1° of the I relative to the following assets:
“(a) Real estate assets referred to in paragraph I of Article L. 214-92 that the fund holds directly or through a corporation referred to in section L. 214-139 for the year of their realization. For the determination of the amount to be distributed, net proceeds are reduced by a flat rate of 1.5 per cent of the cost of the property held directly by the fund;
“(b) Other assets that the fund holds directly or through a corporation referred to in section L. 214-139 for the fiscal year of their realization.
« 2° At a minimum of 85%, the distribuable surplus-values, referred to in 2° of I, if any, to the deduction provided for in I of Article 150 VC of the General Tax Code, carried out by the fund or through a corporation referred to in Article L. 214-139:
“(a) When the real estate assets referred to in paragraph I of Article L. 214-92 are disposed of for the year of assignment;
“(b) When the shares of companies referred to in section L. 214-92, b. I, for the year of assignment.
« 3° At a minimum of 85%, the surplus-values made directly by the fund and through a company referred to in Article L. 214-139, when the assets other than those mentioned in the 2°, are disposed of in the course of their realization.
"Art. L. 214-141. - By derogation from the provisions of Article L. 214-108, the payment of the amounts distribuable under the surplus-values referred to in 2° of Article L. 214-140 shall take place before the last day of the sixth month following the assignment of the assets referred to above.
"Art. L. 214-142. - The shareholders or their right holders cannot cause the sharing of the real estate investment fund.
"The shareholders shall be held debts of the co-ownership only to the assets of the fund and proportionate to their share.
"Art. L. 214-143. - The liquidation conditions and the distribution of assets shall be determined by the settlement of the real estate investment fund. The management company shall assume the functions of liquidator under the control of the depositary. If not, the liquidator shall be appointed to justice at the request of any shareholder.
"Subsection 4
“Real collective investment organizations
low operating rules
"Art. L. 214-144. - It can be created a collective investment agency with a reduced operating rules.
"Subscription and acquisition of shares or shares of a collective investment agency with a reduced operating rules are reserved for qualified investors referred to in Article L. 411-2 and for foreign investors of an equivalent class on the basis of the law of the country in which their headquarters is located.
"The general regulation of the Autorité des marchés financiers sets out the conditions under which the subscription and acquisition of the shares or shares of these organizations are open to other investors, in particular depending on the nature of them and the level of risk of the organization.
"The depositary or person designated for this purpose by the regulations or statutes of the organization shall ensure that the subscriber or purchaser is an investor as defined in the preceding paragraph. It also ensures that the subscriber or purchaser actually stated that it was informed that this body was governed by the provisions of this subsection.
"Art. L. 214-145. - A collective investment agency with a reduced operating rules may, under the conditions and limits established by decree in the Council of State, derogate from the limits provided for in articles L. 214-93 to L. 214-97.
"The shares or shares of a collective investment agency with a reduced operating rules may result in different rights on the net assets or the proceeds of the organization and in terms of issuance, assignment or redemption derogating from Article L. 214-126 and to the second and third paragraphs of Variable Article L. 214-136, under conditions defined by the statutes of the pre-payment investment corporation
"By derogation, respectively, from the provisions of 1 of Article L. 214-17 to which Article L. 214-123 refers and the first paragraph of Article L. 214-136, the statutes of a fixed capital investment corporation with a variable operating rules or the regulation of a real estate investment fund may provide for a fractional release of the amount of shares or shares subscribed. These shares are nominal.
"When the shares or shares have not been fully released, the subscriber and successive assignees are held in solidarity with the amount not released from them. If the holder of shares or shareholders fails to release the remaining amounts to be paid on the amount of shares or shares held, the holder of shares or shareholders shall not release the amounts to be paid on the amount of shares or shares held. A month after the implementation remained unimpeded, the fund management company or the investment company with variable capital preponderance may, without any legal authorization, proceed to the assignment of these shares or shares. However, the subscribing or assignee who has transferred its shares or shares ceases to be accounted for payments not yet called by the fund management company or the investment firm with variable capital preponderance, two years after the transfer of account to account for the assigned shares or shares.
"The settlement of the real estate investment fund or the statutes of the investment corporation with a variable capital preponderance may authorize the redemption of the shares or shares of the collective investment agency with a reduced operating rules only at the end of a period that may not exceed three years after the organization's constitution.
"Subsection 5
“Real collective investment organizations
compartments
"Art. L. 214-146. - I. - A real estate collective investment organization may have two or more compartments if the settlement of the real estate investment fund or the statutes of the fixed capital real estate investment company provide for it. Each compartment gives rise to the issuance of one or more categories of shares or shares representative of the assets of the real estate collective investment organization assigned to it. By derogation from Article 2093 of the Civil Code and unless otherwise stipulated by the constitutive documents of the real estate collective investment organization, the assets of a specified compartment only meet debts, commitments and obligations and receive only claims relating to that compartment.
"When compartments are formed within a real estate collective investment organization, they are all individually subject to the provisions of this code that govern this organization.
"The Autorité des marchés financiers defines the conditions under which the constitution of each compartment is subject to its approval, as well as the conditions under which, depending on the net value of the assets allocated to the corresponding compartment, the liquidative value of each class of shares or shares is determined.
“II. - Each compartment is subject to a separate accounting within the accounting of the real estate collective investment organization.
"III. - The Autorité des marchés financiers agrees, under conditions it defines, the transformation, fusion, splitting and liquidation of the compartments. »
Article L. 214-67 of the monetary and financial code is supplemented by two paragraphs as follows:
"Management companies managing civil real estate investment companies cannot create real estate collective investment organizations before they have put their statutes, their organisation and their means in harmony with section 5 and be approved by the Autorité des marchés financiers under the conditions provided by the general regulation of the Autorité des marchés financiers.
"When one of the civil real estate investment companies managed by a management corporation has turned into a real estate collective investment organization that will be managed by that corporation as soon as it meets the conditions set out in section L. 214-119, other civil real estate investment companies may continue to be managed by that corporation. »
I. - After subsection 7 of section 3 of chapter IV of title I of book II of the monetary and financial code, a sub-section 8 is added as follows:
"Subsection 8
“Transitional provisions
"Art. L. 214-84. - I. - Effective December 31, 2009, new civil real estate investment companies cannot be created.
"From the same date, new capital increases cannot be made.
"Art. L. 214-84-1. - Under the conditions set by decree in the Council of State, a civil society of real estate investment can transmit its property by means of splitting to institutions of collective real estate in different form.
"Previously to the split, civil real estate investment companies are, by derogation from Article L. 214-50, authorized, if any, to bring all or part of their assets to new civil societies, so that their shares are transmitted as soon as possible to real estate collective investment organizations within the framework of the split.
"Art. L. 214-84-2. - Civil real estate investment companies have a period of five years, starting with the approval of the provisions of the general regulation of the Autorité des marchés financiers relating to real estate collective investment organizations, to hold the extraordinary general assembly of the partners so that they decide on the issue on the agenda relating to the possibility of becoming a collective real estate investment agency.
"This assembly opts, under the conditions of quorum and majority established by the statutes of the corporation on the date of publication of Order No. 2005-1278 of 13 October 2005 defining the legal regime of the real estate collective investment organizations and the modalities of transformation of civil real estate investment companies into real estate collective investment organizations, for one of the two forms of the real estate collective investment organization referred to in the first paragraph of Article L. 214-89
"If the real estate collective investment organization is constituted in the form of a real estate investment fund, the settlement of the fund must provide for the establishment of the monitoring board provided for in section L. 214-132.
"When a civil real estate investment company opts for the real estate collective investment system, this transaction is done without direct or indirect costs for shareholders.
"Art. L. 214-84-3. - Under the conditions defined by the general regulation of the Autorité des marchés financiers, the management companies of civil real estate investment companies shall inform the real estate collective investment system defined in section 5 of this chapter:
« 1° The shares of civil real estate investment companies prior to their subscription or acquisition in accordance with the provisions of articles L. 214-59 and following;
« 2° The partners of civil real estate investment companies no later than 12 months from the publication of Order No. 2005-1278 of 13 October 2005 defining the legal regime of real estate collective investment organizations and the modalities of transformation of civil real estate investment companies into real estate collective investment organizations.
"In particular, this information concerns the obligation of civil real estate investment companies to convene a general meeting under the conditions set out in Article L. 214-84-2 to submit to the vote of the partners the possibility of placing themselves under this regime.
"This information is sincere, complete and clear and is written in terms that are easily accessible and understandable in order to allow subscribers on the part or partners to have the essential information necessary to make their decisions in full knowledge. »
The monetary and financial code is thus amended:
1° In the III of Article L. 211-1, after the words: "a common investment fund" are inserted the words: ", a real estate investment fund";
2° In the last paragraph of Article L. 211-2, after the words: "joint investment funds" are inserted the words: ", shares of real estate investment funds";
3° In the second paragraph of Article L. 211-4, before the words: "must be registered" are inserted the words: "or investment companies with variable capital preponderance";
4° In I of the article L. 212-3, after the words: "SICAV" are inserted the words: "or investment companies with variable capital preponderance";
5° In the first paragraph of Article L. 214-80, before the words: "a civil real estate company cannot," the words are inserted: "With the exception of the cases provided for in Articles L. 214-124 and L. 214-135,";
6° The title of sub-section 1 of section II of chapter I, title III, of Book II is amended as follows: "Sub-section 1. - Arrangements for collective investment in securities, common receivables funds and real estate collective investment organizations;
7° In I, II and III of Article L. 231-4, after the words: "joint investment fund", the words ", real estate investment fund" are inserted;
8° After the article L. 231-7 is added an article L. 231-7-1 as follows:
"Art. L. 231-7-1. - shall be punished by imprisonment for two years and a fine of EUR 750,000 for a de facto or legal officer of a collective investment agency in real estate, to make the placement of shares or shares of that organization without the latter being approved or if it continues its activity despite a withdrawal of approval. » ;
9° The first paragraph of Article L. 511-6 is supplemented by the following words: "no real estate collective investment organizations";
10° Au II de l'article L. 621-9, il estadd un 13° ainsi écrit :
« 13° Real estate reviewers. » ;
11° In the first paragraph of articles L. 732-7, L. 742-6, L. 752-6 and L. 762-6, after the words "L. 214-41", the words ", from section 5".
The following paragraph is added to section 2 of the Act of 2 January 1970 referred to above:
"To real estate collective investment organizations and their management companies. »
This order comes into force on the first day of the month following that of the publication in the Official Journal of the French Republic of the decree of the Minister responsible for the economy having approval of the provisions of the general regulation of the Autorité des marchés financiers relating to real estate collective investment organizations.
The Prime Minister, the Minister of Economy, Finance and Industry, and the Minister of Justice, are responsible for the application of this Order, which will be published in the Official Journal of the French Republic, each in respect of it.
Done in Paris, 13 October 2005.
Jacques Chirac
By the President of the Republic:
The Prime Minister,
Dominique de Villepin
Minister of Economy,
finance and industry,
Thierry Breton
The Seal Guard, Minister of Justice,
Pascal Clément
