Being an individual entrepreneur means taking risks! In order to avoid the seizure of all your assets in case of difficulties, the declaration of unseizability is one of the solutions that Stéphanie Swiklinski, a notary graduate, introduces to us.
Who can benefit from unseizable assets?
The declaration of unseizability remains possible for all natural persons who are registered in the Trade and Companies Register or in the Trade Register. This also concerns those who carry out an agricultural or independent activity. This system is therefore open to :
- to individual entrepreneurs, natural persons;
- craftsmen, farmers, shopkeepers, self-employed professionals
- auto-entrepreneurs.
On the other hand, companies of any kind are not eligible. This declaration is therefore not allowed to company managers and their partners.
It is a matter of making certain real estate assets exempt from seizure, only with regard to the entrepreneur's professional creditors and only for professional debts that would be incurred after the publication of the declaration.
Which real estate assets are concerned?
Initially, it was only a matter of protecting the entrepreneur's main residence. It was necessary to declare it unseizable by an act made by your notary. Since the Macron law of 2015, there is a better protection of the main residence since it is automatic. This measure is applicable to the entire property used as a primary residence or only in part. This is the case, for example, if you have your workshop in a part of your house. One part is used for your professional activity and the other part for your home.
Concerning the other real estate, built or not, that the entrepreneur has not assigned to a professional use, it will be possible to declare them unseizable. This declaration must imperatively be made by notarial act to be opposable to the creditors. It must also be published at the land registry office and appear in the trade register, the trade directory or be inserted in a legal notice newspaper, depending on the case.
What are the limits of this protection?
It should be noted that, in practice, you may have to partially or totally renounce the declaration made, at the request of creditors. Indeed, if you wish to take out a loan, for example, your possibilities will be limited because you will have fewer guarantees to offer in case of default. Moreover, banks often require a personal commitment from the director on his own assets, making the protection illusory. The tax authorities also have the right to seize real estate declared unseizable in case of fraudulent maneuvers by the entrepreneur or repeated non-compliance with his tax obligations.
Stéphanie Swiklinski