Why prepare the file before finding a purchaser?
Difficulties often appear once the preliminary sale agreement is already signed and scattered documents must be gathered quickly. A poorly identified cellar, missing minutes or an unclear charges balance can slow the sale.
Preparing the file makes it possible to check that the commercial description matches the titles and that the information provided on the charges and the works is consistent.
Which documents describe the property being sold?
The title deed identifies the lots acquired. The descriptive table of division and the plans make it possible to check the apartment and its annexes. The co-ownership regulations set out the rules of use and the co-ownership shares attached to the lots.
These documents must be compared with reality. A space used out of habit, a cellar exchanged between neighbours or a fitted-out terrace must not be presented as private without verification.
The seller must also check that the regulations and their amendments have been transcribed. An unpublished amendment may not be enforceable against the purchaser.
How to present the charges situation?
The latest annual statement gives a view fixed at a precise date. It must be supplemented by the calls for funds issued since then, the payments received and any adjustments.
The seller must also report the works voted, even if they have not yet begun. A decision of the general meeting can bind the co-ownership before the expense appears on the individual statement.
One must distinguish the current budget, the exceptional calls for funds and the works fund.
What the sale does not make disappear
The contributions to the works fund are attached to the lot and definitively acquired by the syndicate. The seller does not recover them upon the transfer.
The charges still owed do not disappear either. The purchaser is jointly and severally liable with the seller for the charges still owed in respect of the closed financial year and the months of the current financial year.
The law does not provide for an automatic distribution pro rata to the period of ownership. The parties may organise their accounts between themselves, but their agreement does not alter the rights of the syndicate.
What must be read in the minutes?
The recent minutes allow the purchaser to understand the projects, losses, proceedings and works in progress.
A quote discussed but not voted is not a commitment. It may nevertheless herald an upcoming expense. The presentation must distinguish the works decided, contemplated and already ordered.
What role does the syndic play?
The syndic provides the accounting and administrative information it holds. The seller may request a certificate from the syndic dated less than one month, attesting that they are free of any obligation towards the syndicate.
Failing this, the transfer must be notified to the syndic and the latter may, within eight days from receipt of the notice, object to the payment of the funds.
Any transfer of ownership must then be notified without delay to the syndic so that it addresses the next calls for funds to the correct owner.
Can a garage or a cellar be sold separately?
It all depends on the structure of the building.
If the garage constitutes a distinct lot, with its own private part and its own co-ownership share, its separate sale is an ordinary lot sale. The descriptive table of division makes it possible to check this quickly.
A share of the common parts, on the other hand, can never be sold on its own: it may be alienated, encumbered with real rights or seized only together with the private part of which it is the accessory.
The special case is that of a single lot that one wishes to split, for example to detach a space from an apartment. Where the regulations have not already divided the charges between the fractions thus created, this distribution must be approved by the general meeting by a majority of the co-owners present or represented. This decision must be anticipated before the preliminary sale agreement.
What must be handed over after the sale?
The seller organises the handover of the keys, badges, remote controls and information on the private equipment. The sale transfers ownership of the lot; it corrects neither approximate accounting nor an uncertain designation.
Reference texts
- Law of 16 May 1975 establishing the statute of co-ownership of built property (Mémorial A No 28 of 23 May 1975), in particular Articles 5, 8 (apportionment of charges) and 10 (co-ownership regulations and their transcription), as amended by the Law of 22 April 1985 (Mémorial A No 22 of 9 May 1985), Article 11bis (works fund, inserted by the Law of 30 June 2022, Mémorial A No 347 of 11 July 2022) and Article 25 paragraph 2 (joint liability of the purchaser, added by the Law of 22 April 1985)
- Grand-Ducal Regulation of 13 June 1975 (Mémorial A No 34 of 20 June 1975), in particular Article 31