Mitigating the financial risk stemming from unlimited liability: how to include some clauses from the statutes of Ilot De Spiegel

[alberto]

Wow, great work! Thank you so much for doing this. Your post gives me hope that we are seeing the end of this.

In general, I think this the way to go is: we give this stuff to the lawyer and get comprehensive advice on the best way to secure the cohousing. She will the suggest either 1 or 2 +3, and we will do that.

Couple of specific reflections:

@Lee

Article 5.3.1: “Distribution key” => costs are divided in function of the relative value of the different units (so not the number of square meters)

Makes sense, but poses a problem: the SoSim should be incoporated before the final plan is ready and we know the values of apartments. I suppose we can still pre-finance it with some money, and then, once the values are known, re-balance.

@Lee

Commitment to bring in additional financial means if the price unexpectedly would go up (<10%)

So that means Spiegel did NOT have to put up the 10% up front.

Also, while we are at it, I propose two additions.

1. If someone withdraws mid-construction, they do not recover 100% of the money they put in, but 80 or 90%. This is a suggestion by Mark (what he calls “fermer la porte”), in order to reduce fickleness and instability. Exception, in the interest of fairness: the people that paid for the site, upon finding a new buyer, will receive 100% of the money they used to pay for the site.
2. I would also ask the lawyer to consider how we can shelter the SoSim from the consequences of FATCA. I

@marij_e

The banks pass on the information of the société simple account in its entirety to other countries; the tax authorities of those other countries levy on the whole and not on the part (amount of shares) of the person concerned. From my point of view, it seems important that the société simple foresees any possible issues for this complex matter in its statutes by stipulating that each person concerned must be responsible for the costs associated with or as a result of FATCA and CRS (common reporting standards) and for the taxes that would be levied on the société simple if these are the result of an action by the person concerned (residency abroad, eg.) or a result of legislation imposed by a country of which the person concerned is a citizen.

Finally, we have a non-statute related question to the lawyer, could you ask that too? It relates to:

@LuciaM

He highlights that the work related to the common parts of the building will need to be handled separately (via the syndic of the Owners’ Association, which will come into existence when we divide the plot). See the information available in this document: 240628_Notaire_Questions étapes achat terrain . When I asked if we could deviate from this provision of the co-ownership law during the construction phase (as other groups have done in the past, based on reading their statutes, but these are over 10 years old, and I believe the law has changed since then), he said it is not possible.

I took the question to Mark, he said he has never seen this. So:

@alberto

@RichardB to approach our lawyer with a request to explain to us how this would work in practice. Does the construction company bill each person twice, once for the private units and once for the commons? Also we could maybe ask Habitat participation and/or Samenhuizen. Could this be the first task for @Hannah in team finance?

As far as I know, Richard has not talked to the lawyer yet, so grateful if you can bring her this question too.