THE SELLER'S GUARDIAN or when a seller cannot sell his property alone
When a property is put up for sale, the question of the seller's capacity is essential.
The sale of a house, flat or plot of land is an act of disposal, which means that it is a particularly important act.
What is an incapable person?
*/ To begin with, any minor who has not become emancipated will be considered incapable of selling the property he or she owns on his or her own.
*/ Adults are in principle free to sell, unless they are of unsound mind. Therefore, a person who lacks discernment, even if they have not been placed under protective supervision, cannot validly sell their property alone.
What are the protective measures?
*/ Minority itself;
*/ For adults, there are the following measures:
- Safeguard of justice,
- Curatorship (simple or reinforced),
- guardianship
- Family guardianship,
- Mandate for future protection.
Selling the home of a person under protective supervision
Article 426 of the Civil Code requires prior authorisation from the guardianship judge, or the family council if there is one, if a protected person (subject to legal protection, guardianship, curatorship, protection mandate, etc.) wishes to sell their main residence or even their second home.
Only if the person under protection wishes to sell a property in which he or she never stays, let alone a plot of land, will article 426 of the Civil Code not apply.
What are the consequences of these measures when a property other than a dwelling is put up for sale?
*/ If an unemancipated minor wishes to sell a property, it will be necessary to obtain prior authorisation from the guardianship judge and a valuation opinion from at least two qualified professionals (article 387-1, 1° of the Civil Code).
*/
- Safeguard of justice: If a substitute decision-maker has been appointed, he or she will act alone. If no special agent has been appointed, the person placed under court protection may sell their property alone.
- Curatorship (simple or reinforced): The person under curatorship must sign the preliminary sales agreement or the promise to sell with the assistance of the curator. The sale price will be paid directly to the person under simple guardianship, whereas it will be paid to the guardian if the guardianship is reinforced.
- Guardianship: Only the guardian may sign deeds of sale. As in the case of unemancipated minors, it will be necessary to obtain the prior agreement of the guardianship judge and to obtain a valuation opinion from at least two qualified professionals.
- Family empowerment : The person designated as empowered in the judge's order will be the only person to sign the deeds referred to in the order.
- Mandate for future protection: If the mandate is notarised, the mandatary will act alone without the judge's authorisation. If the mandate is not notarised, the rules mentioned above concerning guardianship and minority will apply (prior authorisation by the judge and two opinions of value).
