The rule is simple: without professional card and without authorization certificate, no remuneration.
Can one exercise the profession of real estate agent without a professional card? Obviously not, and one wonders if this subject deserves an article. However, the reality can be more complex than it seems and case law regularly echoes this.
First important reminder: exercising without a card or certificate is liable under civil law to the loss of the right to remuneration (fees or damages) and criminal prosecution for illegal exercise. It should be noted that an invalid card or certificate is assimilated to the absence of a card or certificate.
I- The professional real estate agent card
Card formalities (issuance, modification, renewal) can be done online (https://www.cciwebstore.fr/), sent by registered mail with acknowledgment of receipt or delivered by hand against discharge. Once you have chosen your format, you will not be able to change it: all online or all by mail. No mixed.
A. The initial issuance of the card
The initial delivery usually does not pose any difficulty. The conditions to be combined are as follows: professional capacity (diplomas and/or professional experience), good repute (checking of bulletin no. 2 of the criminal record), civil liability insurance and financial guarantee. These must be fulfilled throughout the duration of the card which, failing this, is no longer valid.
A professional cannot practice until his card has been issued, even if the application is “in progress”. If you choose to entrust the constitution of your company to a professional (lawyer, accountant or notary), some also offer to carry out the formalities of business cards. Then, as soon as you become the holder of a professional card, you are registered on the national file of real estate agents (https://www.cci.fr).
This site makes it possible to check online that each professional is the holder of a valid card (or an authorization certificate). Last precision on the financial guarantee: the “Transactions” activity can be carried out without financial guarantee, on the condition of making the commitment not to hold any funds.
B. Card renewal
It is at this stage that things can get complicated. We therefore remind you of the need to respect the deadlines and procedure for renewing your card.
- The deadline : the application for renewal of your card must be “presented two months before the expiry date of the card” (article 80 of the decree of July 20, 1972). However, in practice, it is possible that your request submitted within the legal deadline may be rejected by certain Chambers of Commerce and Industry (CCI) which consider that the request for renewal must be submitted within two months of the deadline. If this is the case, you will have no choice but to resubmit your file within two months.
Please note that the processing times are very variable and that it is imperative that you have obtained your renewal before the expiry date of your current card. Otherwise, you will be considered illegal. I often hear that if the request was made before the expiry of the card, in the event of control by the DGCCRF, the agency would be “covered” even if it operates after the expiry date. I admit that I do not share this analysis which, in the absence of a text, would be based on an administrative tolerance that does not, in my view, allow escaping the legal qualification of the illegal exercise and its consequences. agencies (by sale of shares or shares) and/or change of manager, managers often think that they do not have to renew “their” card since they are selling and/or resigning. It is false, the leaders of company do not have a card. It is the company that holds the card and the legal representative who fulfills the conditions of capacity and good repute. The subtlety is considerable and the direct consequence is that the company card must be renewed in the event of transfer of titles and/or change of directors.
- Rooms : the renewal request must be signed by the legal representative and accompanied by the documents listed on the site: https://www.cciwebstore.fr/. Don’t forget that to obtain the renewal of a professional card, each holder or his legal representative must provide proof of forty-two hours of training every three years, including two hours on non-discrimination in access to housing and two hours on other ethical rules. So don’t wait until the last moment to do your training and put together your renewal file.
II- The authorization certificate
It is mandatory for any employee who meets the conditions.
A. When to ask for it?
Trial period, CCI deadlines, apprenticeship contract, urgent need… so many reasons why authorization certificates are sometimes not requested. However, any employee in contact with customers must have their certificate from their first day of work.
While waiting for the certificate, some have the mandates signed by an authorized person, but this only partially resolves the situation. Indeed, employees who “negotiate, mediate or commit themselves” on behalf of the cardholder must be authorized (article 4 Law n°70-9 of January 2, 1970). Being able to commit and sign the mandates is one of the three actions that an authorized employee can do. The mere fact of negotiating and/or mediating without holding the certificate is potentially a cause of loss of the right to fees.
B. Scope of delegated powers
Having a certificate is necessary, but it is also strongly advised to be precise about the delegated powers. The Court of Cassation had to decide on this subject in a case where the nullity of a mandate was maintained on the grounds that the employee’s certificate did not specify that he was authorized to sign the mandates. The Court finally held that insofar as the employee was authorized to hold funds, he had the broadest powers and could therefore sign the mandate (Cass. 1e civ. 3 Nov 2016, n°15-23234). The solution could have been different if the collaborator had not been authorized to receive funds. Be specific about delegated powers.
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