Resolution of the Directorate-General for Legal Certainty and Public Faith of 17 December 2025
When liquidating a company with real estate assets, there is often a temptation to distribute the properties directly among shareholders instead of selling them.
However, the law imposes a strict requirement: distribution in kind requires unanimous consent.
The case at hand
A company approved liquidation with 89% support, assigning some shareholders property and others cash. A dissenting shareholder received cash.
The Commercial Registrar refused registration due to lack of unanimity. The decision was upheld.
Legal rule: Article 393.1 of the Companies Act
Unless unanimously agreed, liquidation quotas must be paid in cash. Payment in kind is an exception requiring unanimity.
This is a mandatory rule, not optional.
Cash payment does not cure invalidity
Even if the dissenting shareholder receives cash, the lack of unanimity invalidates the agreement.
Lack of challenge does not validate the agreement
Failure to challenge the resolution does not cure nullity. The registrar must ensure legality regardless.
Analogy with inheritance partition
The reasoning mirrors inheritance law:
- Allocation of assets requires unanimous consent
- Equality among parties must be preserved
Practical implications
- Plan for unanimity from the outset
- If not achievable, sell assets and distribute cash
- Consent must be express and recorded
- The registrar ensures legality
- Asset valuation must be robust
Conclusion
Company liquidation is not purely a majority decision process. Structural legal rules protect each shareholder individually. Without unanimity, distribution in kind is invalid and cannot be registered.