Legal action by the syndic: new rule on authorisation since 2019

Imagine: you are the owner of a flat in Sète, in a quiet co-ownership. One day, the syndic brings legal proceedings against a recalcitrant co-owner without having obtained the approval of the general meeting. The case drags on, and suddenly the opponent raises a nullity: the syndic had no right to act. How far can this nullity set aside the proceedings? This is precisely the question decided by the French Supreme Court in a judgment of 25 March 2021.

The question every owner asks: 'Can the lack of authorisation of the syndic lead to the annulment of the entire legal action?' The answer depends on the date on which the nullity objection was raised. And that is where the difficulty lies: a 2019 decree amended the rules, but without specifying its temporal application.

This decision clarifies the transitional law: only co-owners can rely on the lack of authorisation, and only if the objection is raised after 29 June 2019. A victory for legal certainty regarding actions already brought.

The facts: a story that happens every day

Mr X, an owner in Lodève, is in dispute with his co-ownership association. The syndic, without waiting for the general meeting, sues Mr X for payment of unpaid service charges. The case proceeds: the Montpellier High Court (Tribunal de grande instance) orders Mr X to pay, and he appeals. Before the Court of Appeal, Mr X raises a nullity objection: the syndic did not have authorisation from the general meeting to act, in accordance with Article 55 of the Decree of 17 March 1967.

The scene is set: on one side, the co-ownership association, represented by its syndic, which brought legal proceedings without prior authorisation. On the other, Mr X, who relies on this irregularity to have the entire proceedings annulled. The Court of Appeal rules in his favour: it annuls the claim and the judgment, considering that the lack of authorisation is a matter of public policy. The association appeals to the Supreme Court.

But in the meantime, a decree of 27 June 2019 amended Article 55 of the 1967 Decree, specifying that only co-owners can rely on this lack of authorisation. The question therefore arises: does this new rule apply to ongoing proceedings, where the nullity objection was raised before or after 29 June 2019?

The reasoning of the court — dissected

The French Supreme Court, in its judgment of 25 March 2021, quashes the Court of Appeal's decision. Its reasoning is simple: the decree of 27 June 2019 amended Article 55 of the Decree of 17 March 1967, but this amendment applies only to nullity objections raised after 29 June 2019. In this case, Mr X had raised the objection before that date, so the old rule applied. But the Court of Appeal made a mistake: it considered that the nullity was a matter of public policy, whereas the new rule limits the ability to rely on it to co-owners only. However, Mr X was indeed a co-owner, so he could rely on the lack of authorisation. But the Supreme Court criticises the Court of Appeal for not checking whether the objection was raised before or after 29 June 2019.

In short, the Supreme Court says: the rule that 'only co-owners can rely on the lack of authorisation' is a procedural rule that applies immediately to objections raised after its entry into force. For earlier objections, the old rule continues to apply, meaning that anyone (not just the co-owner) could invoke the nullity.

The legal basis is Article 55 of Decree No. 67-223 of 17 March 1967, as amended by Decree No. 2019-650 of 27 June 2019. This text requires the syndic to obtain authorisation from the general meeting to bring legal proceedings on behalf of the association. In other words, the syndic cannot decide alone to sue a co-owner; a vote is required. The sanction for this lack of authorisation is the nullity of the action. But the 2019 reform limited this sanction: only the co-owner targeted by the action can complain about it.

What few people know is that this decision is a confirmation of earlier case law on the temporal application of procedural rules. The Supreme Court applies the principle of immediate application of the new law to ongoing proceedings, but with a nuance: acts already performed remain valid. Here, the nullity objection is a procedural act; if it is raised after 29 June 2019, it is subject to the new rule.

What this changes for you — concretely

For landlord owners: if a syndic brings an action against you without authorisation, you can rely on the nullity, but only if you do so after 29 June 2019. If the action was brought before, and you did not raise the objection before that date, you can still do so after, but under the new conditions. However, be careful: you must be a co-owner to rely on this lack of authorisation. If you are a tenant, you cannot complain about it.

For syndics: this decision secures actions brought before 29 June 2019, at least as long as the objection is not raised after that date. But it is prudent always to obtain authorisation from the general meeting before acting, to avoid any risk.

For co-owners in Lodève: if you are being sued by the syndic, check when the action was brought and when you raise the objection. If it is after 29 June 2019, you are the only one who can rely on the lack of authorisation. Concrete example: suppose your syndic sues you for payment of £2,500 in charges in January 2019. You raise the nullity objection in March 2020. The new rule applies, so you can rely on the lack of authorisation. If the syndic has no authorisation, the action is void.

undefined, I have come across cases where co-owners in Sète succeeded in having legal actions annulled because the syndic acted without authorisation. But since 2019, the situation has changed: only the targeted co-owner can act, and only if the deadlines are respected.

Four tips to avoid this type of dispute

• Always check the authorisation of the general meeting before bringing an action. The syndic must have an express mandate to take legal proceedings. Request a copy of the minutes of the general meeting authorising the action. If not, refuse to start the procedure.
• If you are a co-owner being sued, immediately ask the syndic to justify its authorisation. By registered letter with acknowledgement of receipt, demand a copy of the general meeting's decision. If there is no response, you can raise the nullity.
• Respect the deadlines for raising the nullity objection. The objection must be raised before any defence on the merits. If you wait too long, you lose this right. Consult a solicitor as soon as you receive the claim.
• Anticipate reforms. The Law of 10 July 1965 and the Decree of 1967 are regularly updated. Stay informed of legislative changes, especially in procedural matters. A forewarned syndic is worth two.

Further reading: related case law and developments

The French Supreme Court has already ruled on the temporal application of procedural rules. For example, in a judgment of 13 September 2019 (No. 18-20.246), it held that the new rules on notification of pleadings between lawyers applied immediately to ongoing proceedings. This case law confirms the general principle of immediate application of procedural law.

On the substance, however, the Supreme Court had already limited the possibility of relying on the lack of authorisation of the syndic. In a judgment of 28 March 2013 (No. 12-14.611), it held that this nullity was not a matter of public policy and could only be raised by co-owners. The 2019 reform merely codified this case law.

The trend of the courts is therefore to restrict the grounds for nullity to avoid legitimate actions being paralysed by procedural defects. This means that, in the future, the lack of authorisation of the syndic will be sanctioned less and less often, unless the co-owner concerned invokes it in time.

Summary and next steps

1. Check the date of the nullity objection: if it was raised before 29 June 2019, the old rule applies; after, the new rule applies.
2. Identify who raises the objection: since 2019, only the co-owner being sued can rely on the lack of authorisation. A third party (such as a tenant) cannot.
3. If you are a syndic: always obtain express authorisation from the general meeting before taking legal action. Keep the minutes carefully.
4. If you are a co-owner being sued: as soon as you receive the claim, seek advice from a solicitor to know if you can raise the nullity. Do not delay.
5. If the action was brought before 2019 and the objection is raised after: the new rule applies, but you are still a co-owner, so you can act. Check the deadlines.

Are you in a similar situation? A 30-minute initial consultation with Maître Zakine (£45) can save you months of proceedings — and often much more. Book an appointment →