Buying or selling commercial property is a strategic operation that is often complex and risky from a financial, legal, and tax perspective.
Several professionals may be involved : real estate agencies, notaries, and lawyers.
Each of these professionals offers a different level of support.
The choice of the appropriate agent will depend on the services requested by the buyer or seller.
When an entrepreneur wants to sell or buy a business, they consult their business lawyer.
When an entrepreneur wants to sell or buy commercial or residential property, the first step for a seller or buyer is often to contact a real estate agency or a broker.
The role of the real estate agent or broker is primarily commercial. It is to facilitate the dissemination of the offer on the market (advertising) and to connect buyers and sellers, and, if necessary, to negotiate the sale or purchase price in the client’s best interest.
Real estate agents typically charge 5 to 10% of the property price.
However, agencies do not provide legal or tax advice prior to a transaction and, most importantly, are not authorized to draft deeds of sale for real estate.
They sometimes draft preliminary sales agreements, but not all agencies do. For the final deed of sale or purchase, they traditionally forward it to the notary.
The notary is involved in the signing of the deed of sale or purchase of real estate, and sometimes the preliminary sales agreement.
Their role is to verify the information, draft the deed of sale, and ensure compliance with legal formalities (publication, tax registration).
Contrary to popular belief, notaries do not have a monopoly on sales, and many sales are completed without one.
While notaries are required to draft deeds of sale for real estate, which generate transfer taxes of 7 to 8% of the sale price, they are not required to draft deeds of sale for companies that own real estate (SCI, SA, SARL, SAS, etc.).
The deed of sale is concluded without a notary, which saves on their fees, reduces registration fees, and often results in more favorable capital gains taxes.
Furthermore, even for property sales, the notary does not intervene in the negotiation strategy, nor in the in-depth analysis of the commercial or tax aspects of the case.
The instructed counsel/lawyer handling standard real estate or business transactions, on the other hand, will intervene upstream.
He will ensure the veracity and validity of the documents provided, negotiate the price themselves, and secure the transaction.
While the notary is involved in drafting the deed of sale for a property, the lawyer’s role is to:
– find a buyer on behalf of the seller or a seller on behalf of the buyer of the business or shares,
– verify the accuracy and validity of the documents provided,
– assess the risks and benefits of the sale of the business or shares,
– negotiate the sale or purchase price at the client’s request: upwards for the seller, downwards for the buyer of the business or shares,
– assist the client in obtaining bank financing,
– advise the client on the legal and tax implications of the purchase and sale, and ensure the tax optimization of the transaction, particularly regarding capital gains or losses,
– draft the preliminary sales agreements for real estate and provide secure support to the client throughout the entire purchase or sale process. building.
– Finally, and most importantly, he drafts the deeds of sale for companies (SA, SARL, SAS, SCI, etc.) that own buildings without involving a notary, thus ensuring complete security for all parties.
In his work, he guarantees the confidentiality of communications and professional secrecy.
And above all, the lawyer guarantees that he has no conflict of interest.
Sophie PETROUSSENKO
0156810580