Article 160.f of the Spanish Companies Act: Registration of the sale and purchase of company assets and essential assets

According to the Directorate General for Legal Certainty and Public Faith (DGSJFP), it is not necessary to provide an explicit certification or declaration on the essential nature of the asset transferred, allowing the transaction to be validly registered, without affecting the protection of bona fide purchasers.

The Resolution of the DGSJFP of 29 July 2024 deals with a case relating to the registration of the purchase and sale of real estate by a limited liablity company, in relation to Article 160.f of the Capital Companies Act (LSC). This rule requires the approval of the shareholders’ meeting for transactions involving the transfer of essential assets.

The conflict arose when a property registrar suspended the registration of a deed of sale on the grounds that it had not been accredited whether the property sold constituted an essential asset, which would have required the prior approval of the general meeting. The Directorate General reversed this decision, arguing that neither the LSC nor the preventive legal certainty regulations require a corporate certificate  to be provided or an express statement of the nature of the asset to be included in the deed.

The term ”essential assets” is an indeterminate legal concept, the determination of which depends on the specific circumstances of each case. According to Article 160.f LSC, an asset is considered essential when its value exceeds 25% of the assets in the last approved balance sheet, unless there is evidence to the contrary. However, the Directorate General emphasises that this assessment does not fall within the competence of the notary or the registrar, except in notorious cases or when the documents submitted provide evidence of the essential nature of the asset.

The Directorate General also pointed out that Article 234.2 LSC protects third parties acquiring in good faith and without gross negligence. Therefore, although it is desirable to include declarations or certifications that reinforce the diligence of the parties, it is not a mandatory requirement for registration of the transaction.

In this case, the notary’s affirmation of the sufficiency of the powers of the parties’ representatives, after considering the provisions of § 160 f, was sufficient to meet the legal requirements. The decision concludes that the deed complies with the formal requirements for registration without the need for additional statements on the nature of the assets transferred.