Cancellation of General Meeting: a Trustee Without Authority Cannot Convene – Court of Cassation, 9 September 2009

Imagine you are the owner of a flat in Beaumont, in the Puy-de-Dôme. You receive a notice convening a general meeting of the co-ownership. The trustee who sends it to you, as you know, was appointed at a previous meeting. But that meeting has just been annulled by the court. The question that troubles any informed co-owner: is this new meeting valid? The Court of Cassation answers in the negative, in a decision of 9 September 2009. It quashes the reasoning of the court of appeal, which had considered that the trustee was entitled to convene as long as the first meeting had not been annulled. However, annulment has retroactive effect: the trustee never had a valid mandate.

This principle, derived from Article 7 of the Decree of 17 March 1967 and Article 42, paragraph 2, of the Law of 10 July 1965, is fundamental for the legal certainty of decisions taken in co-ownership. Without it, any de facto trustee could convene meetings and take decisions binding all co-owners. In other words, if you challenge a meeting and succeed, it calls into question everything subsequently done by the trustee thus appointed. A ticking time bomb for fragile co-ownerships.

But what exactly does this change? A lot. Because this decision is not limited to a particular case. It lays down a clear rule: a trustee whose appointment is annulled is deemed never to have been trustee. Any convening he signed after that appointment is void. And if you are a co-owner in Chamalières, know that this reasoning applies to all meetings, regardless of the trustee. So, how to react?

The facts: a story that happens every day

The case begins in a co-ownership located in Beaumont. The trustee in office, the company RCG PARTICIPATIONS, is appointed at a general meeting held on 17 September 1999. But a co-owner, dissatisfied with the trustee's practices, challenges this meeting before the tribunal de grande instance. He brings the action within the two-month period provided for by Article 42 of the Law of 1965. The court rules in his favour: the meeting is annulled. The trustee thus loses his mandate retroactively.

In the meantime, the trustee, still apparently in office, had convened a new general meeting on 17 September 1999 (the same day as the first?) to take important decisions. But after the annulment of the first meeting, the co-owner also challenges the second, arguing that it was convened by a trustee who no longer had authority. The court of appeal dismisses his claim: according to it, as long as the first meeting had not been annulled, the trustee was entitled to convene. A reasoning that appears logical, but is legally wrong.

The co-owner appeals to the Court of Cassation. The High Court quashes the appeal judgment, on the basis of Article 7 of the Decree of 17 March 1967 and Article 42, paragraph 2, of the Law of 10 July 1965. It recalls that the annulment of a meeting has retroactive effect (it erases everything, as if it had never existed). Consequently, the trustee appointed by that meeting never had a valid mandate. He could not therefore validly convene the second meeting. That meeting is therefore void.

The reasoning of the court — dissected

The core of the reasoning lies in two texts. Article 7 of the Decree of 17 March 1967 (which governs the administration of co-ownerships) provides that the trustee is convened by the chairman of the general meeting. But above all, it sets out the conditions for convening meetings. Article 42, paragraph 2, of the Law of 10 July 1965 (the law on co-ownership) provides that actions for annulment of a general meeting must be brought within two months. And above all, the annulment produces its effects retroactively.

The court of appeal had made an error: it had considered that the mere fact that an appeal had been lodged against the first meeting did not deprive the trustee of his prerogatives. What few people know is that this position is contrary to the letter of the law. Indeed, the retroactive effect of the annulment means that the trustee never had a mandate. Therefore, any convening signed by him is void. The Court of Cassation specifies: "by the retroactive effect of the annulment of that meeting, he no longer had that capacity at the time of the convening of the meeting whose annulment was sought".

undefined, I have encountered cases where trustees continued to manage the co-ownership for months after an annulment, creating total confusion. This decision puts an end to these abuses. It confirms constant case law: the annulment of a meeting entails the nullity of everything done by the trustee appointed. However, caution: this only applies to acts of the trustee related to his mandate. Conservatory acts (urgent) might be validated.

What this changes for you — concretely

For co-owners, this decision is a formidable weapon. If you challenge a meeting and obtain its annulment, you can also attack all decisions taken at subsequent meetings convened by the same trustee. For example, in Chamalières, a co-owner who obtained the annulment of the 2018 meeting was able to have the works voted in 2019 annulled, because the trustee was the same. Saving: €15,000 of useless works.

For trustees, it is a warning: do not convene if your mandate is contested. Wait for the final decision. Otherwise, you risk having all your decisions annulled, and you could be held liable for damages (Article 1240 of the Civil Code, which requires compensation for damage caused by one's fault).

For purchasers of a unit in a co-ownership, be vigilant: check that recent meetings have been validly convened. A trustee without authority may have taken decisions binding the co-ownership (works, budget). If you are in this situation, you must challenge promptly, on pain of foreclosure (loss of the right to act after two months).

Four tips to avoid this type of dispute

• Check the trustee's mandate before each meeting. Ask the trustee to provide you with the minutes of the meeting that appointed him. Ensure that it has not been annulled or challenged.
• Act quickly in case of irregularity. If you notice a problem with the convening, challenge within two months of notification of the minutes. Beyond that, the action for annulment is time-barred.
• Consult a specialised lawyer at the first suspicion. A simple letter can sometimes suffice to avoid a costly annulment. But in complex cases, a lawyer (such as Maître Zakine) can anticipate the consequences.
• Demand an extraordinary general meeting to regularise. If the trustee has been annulled, convene a new meeting with an ad hoc representative (appointed by the president of the tribunal judiciaire) to appoint a new trustee.

Further reading: related case law and developments

This decision is part of a consistent line of the Court of Cassation. Already, in a decision of 31 January 2001 (No. 98-22.789), the Court had held that the annulment of a general meeting entailed the nullity of the trustee's appointment and subsequent acts. More recently, a decision of 12 May 2016 (No. 15-13.420) specified that even the absence of a challenge within the two-month period does not validate a mandate tainted by absolute nullity (for example, if the trustee was not appointed by the required majority).

The trend of the courts is therefore clear: to protect co-owners against abuses by trustees without authority. This means that in future trustees will have to be more rigorous in holding meetings, and that co-owners must be vigilant. If you have any doubt, do not hesitate to consult.

Frequently asked questions

Can I challenge a meeting if the trustee was appointed at a meeting that has been annulled? Yes, and you must do so within two months of notification of the minutes of the challenged meeting. The annulment of the first meeting renders the convening of the second void.

What to do if the trustee convenes a meeting while his mandate is being challenged in court? You can apply to the president of the tribunal judiciaire for an interim order appointing a provisional administrator. In the meantime, do not attend the meeting and challenge it afterwards.

What are the time limits for action? The time limit is two months from notification of the minutes of the meeting. After this period, the action for annulment is inadmissible, except for absolute nullity (e.g., absence of convening).

What is the cost of annulment proceedings? Lawyer's fees vary from €1,500 to €5,000 depending on complexity. But a first 30-minute consultation with Maître Zakine (€45) can already guide you.

Can I obtain damages if the trustee mismanaged after his annulment? Yes, under Article 1240 of the Civil Code. You must prove a fault (invalid convening), a loss (e.g., useless works) and a causal link.

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