This post is about how to protect ourselves against the limited liability stemming from the société simple.
Overview:
- Explanation of the problem and Mark’s hack using blocked accounts
- Overview of interesting clauses in De Spiegel’s statutes
- Possible ways forward
- Proposal
1. Protecting ourselves from the société simple’s unlimited liability: the ‘locked accounts’ hack
Right from the beginning, Mark has told us about this “hack” that makes building a cohousing in self-managemend financially safe. The problem we are trying to solve is that of the unlimited liability of the société simple: as soon as we sign the contract with the building company, we will have a debt of about 3-4 million. If we don’t manage to pay that bill, the company is entitled to go after our personal assets.
This is a scenario that should be excluded. Mark’s solution to this problem is gathering all the money (all of it!) before the contract is signed. Because just transferring so much money is something banks and individuals are (rightfully) unlikely to do, the trick is to set up locked accounts, one for each household. These accounts can only be used by the société simple, and only to pay for the bills related to the building of the cohousing (construction and other).
For those who work with a mortgage, the legal agreements is with the bank, who will transfer the different tranches of the loan to the account, every time a bill is presented. For those who will pay their unit with their savings, the legal agreement is to always deposit 100.000 euro on the blocked account.
2. Turning these provisions into a legal agreement: the statutes of Ilot De Spiegel
What we didn’t know so far is that our sister cohousings have included these legal provisions in the statutes of their société simple.
I studied the copy of De Spiegel’s statutes (saved in the ‘Société simple’ folder | internal link). Below is a short summary of some key points for convenience.
1. Overall: very specific and operational clauses
Contrary to the statutes we received from the notary (which are very generic), the statutes of De Spiegel go into a lot of detail, e.g. on the powers of the Board (super large!), the conditions for excluding a member etc.
The advantage of this approach is that it brings much more clarity. The disadvantage is that it can be severely limiting the options to solve unexpected problems. The latter can be solved by getting the General Assembly (GA) to approve an exception (or whatever is needed), but this will inevitably cost more time.
2. Details: overview of relevant clauses
For the sake of clarity: this is just a list, we don’t need to include any clause that is not met with consent or consensus.
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Article 2: Objective - An increase of the price of the works by more than 10% needs the approval of the GA.
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Article 4.3: “Associates”
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If the GA would decide on an increase beyond 10%, an Associate will be allowed to leave the société simple.
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Exlcusion of an Associate: decision by the GA with a 2/3 majority (without the household in question participating to the vote)
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Other reasons for exclusion:
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When somebody goes bankrupt + a whole list of other potential troubles like serious debts, the mortgage being refused etc
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When the financial means are not transferred within a month after the first warning
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Article 4.4: Consequences of exclusion => description of a list of conditions, like the sales price, the recuperation of registration rights etc
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Article 5.2. c and d: something about individual subsidies going to the common pot
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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)
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Article 5.4: The blocked accounts clauses
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Locked accounts: mortgages or 100.000 euro own means
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Commitment to bring in additional financial means if the price unexpectedly would go up (<10%)
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Money not spent will be reimbursed, idem for interest
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Individual subsidies: consult the Board before requesting them
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Article 5.5: Guarantees
- Different clauses on what happens if someone doesn’t pay in time (very precise, and in favour of protecting the rest of the group)
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Article 7: Management
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7.1 and 7.2: four people, appoint a president, decide by 50% (sic), no proxies, decision log to be published
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7.3: Powers of the Board
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7.3.1: Everything related to construction: ample list of competences
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7.3.2: Everything related to finance: list of competences (nothing one wouldn’t expect)
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7.3.3: Powers of the GA: the Board needs the approval of the GA to sue the construction company, to raise the budget by more than 10% (by unanimity - see 8.2.4)
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7.3.5: Representation: double signature required
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Article 8: GA
- 8.1: Residual competences, i.e. everything that is not within the Board’s competences
- 8.2: Governance
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8.2.1: Meetings: every 2 months, this is where the Board reports about the state-of-play
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8.2.2: Proxies: Maximum two proxies per unit
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8.2.3: Voting: one vote per unit
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8.2.4: Majority: decisions by consent / consensus as much as possible; votes: 2/3 majority, except for the budget increase > 10%: unanimity minus 2 votes (to be noted that they only have 12 units)
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Article 9: Control => The GA can appoint a “commissioner” to “control” / hold the Board accountable
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Article 12: Conflict management => talking first, then with an accredited mediator, then going to court
3. Possible ways forward
Not having any legal agreement on the clause on the locked accounts to protect ourselves against the risk of unlimited liability to me is a must have. It’s something we’ve always said we would do, we just weren’t aware yet of how it could be done in practice.
I see several options on how to move forward:
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- Include an additional clause in our statutes, to guarantee financial safety, along the lines of Articles 5.4 and 5.5 on the blocked accounts.
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- Move the clauses that guarantee financial safety to a separate contract.
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- Make some minor adjustments, like e.g. needing an absolute majority for a > 10% budget increase, a double signature from the Board members etc.
Combinations are equally possible: option 1 + 3 or option 2 + 3
4. Proposal
@reef-finance, as dreadful as it may be, my proposal would be to go with options 2 and 3.
Option 2, a separate contract, has the advantage of offering us more flexibility. It also makes it easier to incorporate the société simple within the next few weeks.
Option 3, making minor amendments to the statutes, comes with a lot of teeth grinding, because we have already spent a crazy amount of time on this, and it may thus be difficult to find motivation to spend a little more time and mental energy on this. The reason why I would go for it nevertheless is that I believe it bring will more emotional safety, if only because we would legally establish that the budget cannot increase by more than 10% unless there is relative unanimity in the GA.
If need be I could take care of both. I sort of know both statutes by heart now, so it shouldn’t take me too much time. The contract I would outsource to the lawyer - just highlighting the clauses that we want - which I could also follow up on if there are no other volunteers.