INTERNAL PROCEDURE for the detection of risks linked to the TRACFIN regulation for our real estate agency
Articles L 561-1 and following of the Monetary and Financial Code
In view of these texts, real estate agents must set up systems to evaluate and manage the risks of money laundering and terrorist financing.
They must also ensure the training and regular information of their employees (employees, sales agents) in order to respect the obligations related to this regulation.
This is why we have established this internal procedure, which will be displayed in our branches, included in the start-up pack for all new entrants, and permanently accessible on our intranet. Training on this procedure is systematically given to all new entrants and during the ongoing training introduced by Decree No. 2016-173 of February 18, 2016.
The person responsible for implementing the monitoring of the risk assessment system at our agency is Mr. Denis Péris. He is also designated as a "TRACFIN reporter" and "TRACFIN correspondent".
You can reach him by phone or by e-mail:
Denis Péris : 06 80 47 13 82 /firstname.lastname@example.org
OBLIGATIONS OF VIGILANCE TOWARDS CUSTOMERS
Before entering into a business relationship, we must gather all useful information concerning the client and the planned transaction in order to assess the risk of money laundering and terrorist financing.
Our vigilance must be constant throughout the duration of the business relationship, by updating the information required to maintain an appropriate knowledge of our client.
At any time, we must be able to justify to the supervisory authorities the adequacy of the vigilance measures we have implemented to the risks of money laundering and terrorist financing presented by the business relationship. And this is true for each file, whether the sale project is successful or not.
Customer identification: a general obligation:
For any client, seller or potential buyer, we are subject to an obligation of identification: it is thus necessary, before any entry in business relation (signature of mandate or visit) to follow the procedure below:
Client seller natural person: at the time of the signature of the mandate, to be presented by the salesmen an official document in the course of validity comprising their photograph. Record and keep the surname, first names, date and place of birth of each person, as well as the nature, date and place of issue of the document and the name and capacity of the authority or person who issued the document and, where applicable, authenticated it; or make a legible photograph or photocopy of the document, concealing the photograph of the person, (but checking that the photograph matches), and attach it to the file. Our mandates provide a space to report this information.
Client seller legal entity: to be communicated an extract of official register (of trade...), in original or in copy, of less than three months; as well as a document attesting the powers of the persons acting on behalf of this legal entity, and the presentation of their identity papers.
Buyer client: same information, during the visit of a property if possible (we are committed on our mandates to verify the identity of all visitors before each visit), in any case at the latest before the establishment of any offer to purchase, negotiation mandate, compromise or promise, whether the document is established by us or by a third party (notary...). This information will be transcribed in the information sheet below, and attached to the sale file.
The possible beneficial owner of the transaction must also be identified under the same conditions (article R 561-7 of the Monetary and Financial Code). For a legal entity customer, the beneficial owner is the natural person(s) who directly or indirectly holds more than 25% of the company's capital or voting rights, or exercises, by any other means, a power of control over the company's management, administrative or executive bodies or over the general meeting of its partners.
If the client or the beneficial owner of the transaction is not physically present, we must also obtain additional proof of his identity. If we are unable to identify our client, or if we are unable to obtain satisfactory information about the purpose or nature of the business relationship, we must terminate the business relationship without delay.
Documents relating to the identity of clients and the transactions carried out will be kept for five years.
IF THERE IS A POTENTIAL RISK, we need to implement an ENHANCED VIGILANCE procedure.
There may be a risk, for example, in the following cases: clients who are diplomats, politicians, or people with high influence, in the case where the amount of the transaction is unusually high, when there is a disproportion between the amount of the acquisition and the income of the purchaser, when the financing of the transaction is based on a complex set-up, which does not appear to have any economic justification or legal purpose, or if the clients are domiciled elsewhere than in France, the EEC or Switzerland, or if the client is not the actual beneficiary of the transaction, borrowing from third parties other than financial institutions authorized in France, location of the client or beneficiary difficult to identify (address not clearly identified, use of a domiciliation company, risky territories... ), a legal entity with its headquarters abroad, the sale of an entire real estate portfolio through different professionals, a request for cash payment of all or part of the price, a high frequency of short-term acquisitions and resales if the individual or legal entity does not have the status of a real estate agent, rapid resale of a main residence with a large capital gain not justified by the evolution of the local market or by justified work on presentation of an invoice, buyer making several simultaneous or successive purchases without discussing the price, proposal to pay our fees in cash, lack of coherence between the known standard of living of the sellers or buyers in relation to their official resources... (This list is not exhaustive. Please refer to articles L561-10 and following of the Monetary and Financial Code, it being specified that the risk is assessed subjectively, depending in particular on the professional's knowledge of the characteristics of his clientele)
IN THE EVENT OF A POTENTIAL RISK: NOTIFY THE PERSONS IN CHARGE DESIGNATED ABOVE
The enhanced due diligence procedure requires the following information to be gathered ( It may result in a suspicious transaction report, by the designated "TRACFIN reporter.") :
a) For natural persons :
- proof of an up-to-date home address at the time the information is collected (e.g. EDF bill);
- the professional activities currently carried out;
- income or any element allowing to estimate the other resources (two last tax notices);
- any element allowing to assess the assets;
- with regard to the beneficial owners, the precise functions or any element allowing to appreciate the nature of the existing links between these persons
b) For legal entities :
- proof of the address of the registered office (K bis less than 3 months old)
- the articles of association ;
- the mandates and powers ;
- as well as any element allowing to appreciate the financial situation
c) For structures managing an unincorporated asset, a trust or any other comparable legal arrangement under foreign law, a document justifying the distribution of rights to the capital or profits of the entity in whose name the opening of an account or the execution of a transaction is requested.
IN THE EVENT THAT CERTAIN INFORMATION CANNOT BE OBTAINED, OR IF WE KNOW, SUSPECT OR HAVE GOOD REASON TO SUSPECT THAT THE TRANSACTION IS RELATED TO MONEY LAUNDERING OR TERRORIST FINANCING, THE BUSINESS RELATIONSHIP MUST BE TERMINATED IMMEDIATELY AND THE PERSON RESPONSIBLE MUST BE NOTIFIED.
Obligation to report suspicions by the "TRACFIN reporter
The "TRACFIN reporter" designated above is obliged to file a suspicious transaction report with TRACFIN when the agency's departments "know, suspect or have good reason to suspect" that the sums intended for the financing of the transaction :
come from an offence punishable by a prison sentence of more than one year ;
participate in the financing of terrorism (Monetary and Financial Code, art. L.561-15, I)
are the object of tax fraud (Monetary and Financial Code, art. L.561-15, II)
If the information gathered and the analysis carried out by the professional do not allow him to rule out any suspicion of the legality of the transaction, a report must be made (see CE 31 March 2004 n° 256355, on the notion of suspicion). Similarly, when the identity of the client or beneficiary remains doubtful despite the vigilance measures carried out, a report of suspicion must be made.
It is specified that the client's activity, place of residence or complex legal arrangement are not in themselves sufficient to constitute suspicion: a report of suspicion is made on the basis of arguments demonstrating the effectiveness of the enhanced vigilance and the impossibility, in the end, for the professional to remove the doubt and conclude that the transaction in question is lawful The written declaration of suspicion is made on :
This report will be made by the TRACFIN reporter designated above, in accordance with the provisions of the Monetary and Financial Code.
Note: all documents must be kept for a period of 5 years.