General Meeting of Co-owners: When a Second Vote Can Save a Project

You own a flat in Lingolsheim or Obernai, and your managing agent announces a roof renovation project. The vote at the general meeting (AG) is close: 60% of the votes, whereas two-thirds were required for an absolute majority (Article 25 of the 1965 Act). The managing agent declares the project rejected. Yet a solution exists: an immediate second vote by a simple majority (Article 24). But is this legal?

The question every co-owner asks: can we, at the same AG, vote a second time on the same project with a different majority? The answer is yes, according to the Court of Cassation, in a judgment of 23 January 2013 (No. 11-26.800). This decision clarifies a procedure often overlooked, which can save essential projects for the co-ownership.

In short, if the project obtains at least one-third of the votes of all co-owners (not just those present), the meeting may, without prior decision, immediately proceed to a second vote by simple majority. This mechanism avoids convening a new AG, saving time and money.

The Facts: A Story That Happens Every Day

Mr. X, an owner in Lingolsheim, is a member of a co-ownership of 20 units. At the 2011 general meeting, a project to install solar panels on the roof is put to the vote. This project requires a majority under Article 25 (absolute majority of the votes of all co-owners), as it alters the external appearance of the building. The vote yields 55% of the votes of those present, but this represents only 40% of the total votes of the co-ownership (because 15% of co-owners are absent or represented). The Article 25 majority is not achieved (it required more than 50% of the total votes). The managing agent announces rejection.

However, the project had obtained more than one-third of the votes (40%). The managing agent then proposes an immediate second vote by the majority under Article 24 (simple majority of votes of those present, without a quorum requirement). This second vote is adopted by 65% of those present. A dissenting co-owner, Mr. Y, sues the co-ownership association to have the resolution annulled, arguing that a second vote was not possible without an intermediate decision of the AG authorising this change of majority.

The Colmar Court of Appeal rules in favour of Mr. Y. But the co-ownership association appeals to the Court of Cassation. The Court of Cassation quashes the judgment and validates the immediate second vote, without an intermediate decision.

The Reasoning of the Court — Analysed

The Court of Cassation relies on Article 25-1 of the Act of 10 July 1965 (which provides for the transition from the majority of Article 25 to that of Article 24 if the project obtains at least one-third of the votes). It clarifies that this mechanism does not require a prior deliberation of the AG to decide on this change. In other words, the AG can, on its own initiative and without an intermediate vote, proceed directly to the second vote.

What few people know: Article 25-1 provides that 'where the general meeting has not decided by the majority provided for in Article 25, the same meeting may decide by the majority provided for in Article 24 if the project has obtained at least one-third of the votes of all co-owners'. The Court of Cassation interprets this phrase as authorising an immediate second vote, without further formality.

In other words, if the project obtains at least one-third of the votes (calculated on all co-owners, whether present, absent or represented), the managing agent can immediately organise a new vote by simple majority. This is an important procedural flexibility.

However, note that this second vote must take place during the same meeting. It cannot be postponed to a later AG. And the project must be identical, without modification.

undefined, I have come across cases where managing agents, through lack of knowledge, announce a definitive rejection when a second vote is possible. This can delay urgent works by a year, pending a new AG.

What This Changes for You — Concretely

For co-owners who are landlords: If you let your property, an energy renovation project (insulation, heating) that does not pass by the Article 25 majority can be saved by a second vote. For example, in Obernai, a co-ownership of 30 units wished to replace the collective boiler. First vote: 48% of total votes (insufficient for Article 25). Second vote under Article 24: 62% of those present. The project was adopted, avoiding another year of high bills.

For tenants: You have no right to vote, but you suffer the consequences: if works are blocked, your comfort may be affected (heating, lift). Know that this decision facilitates the carrying out of works of collective interest.

For buyers: Before buying, check the AG minutes of the last two years. If a works project has been rejected, it could be revived through this mechanism. Ask your notary to analyse the applicable majorities.

For real estate professionals (managing agents, notaries, estate agents): Train your teams in this procedure. A managing agent who ignores it exposes the co-ownership to delays and additional costs.

If you are in this situation, you must require the managing agent to proceed with the second vote immediately. If the managing agent refuses, you can challenge his decision in court (summary proceedings) or request the convening of an extraordinary AG.

Time limit: the second vote must take place at the same meeting. No postponement possible. Cost: any additional fees of the managing agent for a second vote are generally included in the AG flat fee, but check your contract.

Four Tips to Avoid This Type of Dispute

• Check the majorities before the AG: Ask the managing agent to calculate in advance the number of votes required for Article 25 (majority of all co-owners' votes) and for Article 24 (majority of those present). Thus, during the meeting, you will know if a second vote is possible.
• Prepare a proxy: If you cannot attend the AG, give a proxy to a co-owner or the managing agent (within the limits of authorised powers). This increases the number of votes represented.
• Require mention in the minutes: If a second vote takes place, the minutes must clearly indicate the result of the first vote (number of votes for, against, abstentions) and the total number of votes of the co-ownership, to prove that the one-third threshold was reached.
• Consult a lawyer lawyer in case of doubt: Before challenging a resolution, have the validity of the vote analysed by a professional. An unfounded challenge may expose you to damages for abusive proceedings.

Further Reading: Related Case Law and Developments

This decision of the Court of Cassation is consistent with earlier case law: Cass. 3e civ., 27 March 2002, No. 00-17.043, which already admitted the possibility of a second vote at the same AG. The 2013 judgment confirms and clarifies that there is no need for an intermediate deliberation.

However, the Court of Cassation has recalled in a more recent judgment (Cass. 3e civ., 10 September 2020, No. 19-16.842) that the second vote cannot be postponed to a later AG. It must imperatively take place at the same meeting.

The trend of the courts is therefore favourable to procedural flexibility, in the interest of the co-ownership. This means that managing agents must be trained in this possibility, otherwise their liability may be engaged for failure to advise.

In Practice: What to Do

FAQ:

• Q: Can I request a second vote if the first vote did not reach one-third of the votes? A: No, the threshold of one-third of the votes of all co-owners is a mandatory condition. Below that, the second vote is not possible; a new AG will have to be convened.
• Q: Can the second vote relate to a modified project? A: No, the project must be identical. Any modification would require a new vote under the conditions of Article 25.
• Q: What if the managing agent refuses to proceed with the second vote? A: You can request during the AG that the refusal be recorded in the minutes, then challenge the managing agent's decision in court (summary proceedings) or request an extraordinary AG.
• Q: What is the time limit to challenge a resolution adopted by this second vote? A: The time limit is two months from notification of the AG minutes (Article 42 of the 1965 Act). After this period, the resolution becomes final.
• Q: Does this mechanism apply to all types of works? A: Yes, as long as the required majority is that of Article 25 (improvement works, alteration of external appearance, etc.). For routine maintenance works (Article 24), a second vote is not necessary.

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