The "usage theory" applicable on private deeds will be amended so that, based on the explanations of the preparatory work regarding the Tax Reform, an usage of a private deed that is not required to be registered by its form or nature may be made by means of a mere reference without the requirement of registration.
In the past, this theory created some issues when private deeds were referred to in public deeds, or used in front of courts, since such an usage triggered the obligation to register those deeds, causing a 0.24% ad valorem registration duty. This could be rather substantial in certain cases. Even though this registration was actually rarely due, it nevertheless triggered some uncertainties and thus concerns from clients. Whilst this amendment would provide legal certainty and ease the drafting of documents, we deplore that the amended legal provisions are far from being clear, and a clarification would seem pertinent.
Considering the abolishment of the registration obligation under the usage theory in respect of private deeds that are not required to be registered according to their form or nature, the obligation to register lease agreements, or their subrogation or transfer, within a certain deadline (délai de rigueur) has been entirely abolished. This amendment is useful as reflecting current market practice. Indeed, the registration of lease agreements has become somehow obsolete nowadays, notwithstanding the existence of a legal requirement to register any such agreements within three months. Of course, voluntary registration remains feasible to give legal date (date certaine) to the agreement.