Owners' General Meeting: When the Second Notice Requires the Same Draft Resolution

Imagine: you own a flat in Biscarrosse, in a 27-unit building. You receive a notice for an ordinary general meeting (AG). An important vote is planned: the repointing of the facade, for €50,000. You cannot attend, but you give your proxy to a neighbour. On the day, the majority under article 25 (majority of votes of all co-owners) is not reached: only 535 parts out of 1,000 are present or represented, whereas 501 were required to adopt it. The managing agent then convenes a second AG, as allowed by article 25-1 of the Act of 1965. But this time, the draft resolution has changed: the amount of work has gone up to €55,000, without warning. Is this legal?

The question every owner asks: can the draft be changed between the two meetings? The answer is clear: no. The Court of Cassation, in a judgment of 12 May 2016, held that the draft resolution submitted to the second AG must be strictly identical to that of the first. Otherwise, the decision taken is voidable. A decision that secures the rights of co-owners, especially those who could not attend the first meeting.

But what exactly does this change for you, whether you are a landlord in Saint-Paul-lès-Dax or a co-owner in Mont-de-Marsan? Breakdown of a landmark decision.

The Facts: A Story Like Many Others

Mr X, owner of a unit in a 27-unit building in Biscarrosse, receives a notice for an ordinary AG. On the agenda: a vote on facade repointing works for €50,000. The managing agent hopes to obtain the majority under article 25 (majority of votes of all co-owners, i.e., more than half of the parts). But on the day of the AG, only 535 parts out of 1,000 are present or represented. The resolution is not adopted for lack of majority.

Pursuant to article 25-1 of the Act of 10 July 1965, the managing agent convenes a second AG within three months. This time, the draft resolution mentions an amount of €55,000, an increase of 10%. The co-owners present or represented (the same 535 parts) vote and adopt the resolution by simple majority (majority of votes cast). Mr X, who had given a proxy to a neighbour for the first AG, challenges the validity of this second resolution.

The case goes before the Tribunal de grande instance of Mont-de-Marsan, then before the Court of Appeal of Pau, which rules in favour of the managing agent. Mr X appeals to the Court of Cassation. The Court of Cassation sets aside the judgment: the second AG cannot decide on a different draft from that submitted to the first. In short, the managing agent should have convened a new ordinary AG, not a second AG under article 25-1, or submitted exactly the same draft.

The Reasoning of the Court — Explained

The Court of Cassation relies on article 25-1 of the Act of 10 July 1965, which provides: "Where the general meeting has not decided on a draft resolution for lack of the majority required under article 25, the same meeting may be consulted again, at the request of the managing agent, within three months, on the same draft resolution." The text is unambiguous: the word "same" means the draft must be identical.

The judges point out that the second AG is merely an "extension" of the first: it can only decide on what has already been submitted. Allowing a modification would defeat the protection afforded to absent or opposing co-owners, who relied on the initial draft in deciding whether to be represented or not. In other words, if the managing agent could change the draft in the meantime, co-owners would be taken by surprise.

Note, however: the Court does not call into question the possibility for the second AG to decide by a different majority (simple majority of votes cast, instead of the article 25 majority). That is indeed the purpose of article 25-1: to allow the adoption of blocked resolutions. But the draft must remain the same. What few people know is that this rule applies even if the modification is minor. undefined, I have come across cases where a simple change of date or amount was annulled.

What This Changes for You — Practically

For co-owners: you are now protected against unilateral changes by the managing agent between two AGs. If you gave a proxy on a draft for €50,000, you cannot end up with a draft for €55,000 without your consent. Always check that the draft submitted to the second AG is strictly identical. Otherwise, you can challenge the resolution within two months of notification of the minutes.

For managing agents: be vigilant. If the draft needs to be changed (e.g., to reflect a higher quote), you must convene a new ordinary AG, not use the article 25-1 procedure. This error can lead to annulment of the decision and additional costs.

Let's take a concrete example in Saint-Paul-lès-Dax: a 15-unit building wants to vote on the installation of a communal boiler. The first AG fails to reach the article 25 majority. The managing agent convenes a second AG, but the quote has gone up by €2,000. The resolution is adopted. Absent co-owners can seek annulment. If you are in this situation, you must act quickly: apply to the tribunal judiciaire within two months.

For purchasers: if you buy a unit in a building where such a resolution was passed, check the regularity of the procedure. A voidable resolution can undermine decisions on works and affect the value of the property.

Four Tips to Avoid This Type of Dispute

• Keep all draft resolutions: from the first notice, keep a copy of the draft. Compare it with that of the second AG. Any difference, even minor, is grounds for challenge.
• Demand a precise agenda: the draft must be detailed (amount, nature of works, contractors). A vague agenda "facade repointing works" without an amount may be challenged.
• Do not give a proxy without instructions: if you cannot attend the AG, give written instructions to your proxy on which resolutions you accept or reject. In case of modification, your proxy may become void.
• Check the minutes: after the second AG, read the minutes carefully. If the draft differs, challenge it by registered letter within two months.

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Further Reading: Related Case Law and Developments

This decision is part of consistent case law. The Court of Cassation had already ruled, in a judgment of 9 February 1994 (No. 91-22.115), that the second AG could only decide on the same draft. The 2016 judgment confirms and clarifies this rule. On the other hand, the Court has also accepted that the second AG may modify the draft if the modification is proposed by a co-owner and not by the managing agent (Cass. 3e civ., 19 March 2013, No. 12-14.486). But be careful: this exception is rare and strictly framed.

The trend of the courts is clear: protect the rights of co-owners against abusive practices of managing agents. In future, we can expect judges to be even stricter on the form of notices and publicity of drafts.

Frequently Asked Questions

1. What if I voted for a modified draft without knowing it? You can seek annulment of the resolution within two months of notification of the minutes. Consult a lawyer lawyer.
2. Can the managing agent modify the draft between the two AGs if the meeting authorises it? No, article 25-1 does not allow it. Only a new ordinary AG can do so.
3. What is the deadline to challenge an irregular resolution? Two months from notification of the AG minutes. After this period, the resolution becomes final.
4. Can I challenge a resolution if I was absent from the first AG? Yes, because the modification of the draft prejudices you. You were unable to arrange representation with full knowledge of the facts.
5. What is the cost of a challenge? Lawyer's fees vary between €1,000 and €3,000 depending on complexity. But a preliminary 30-minute consultation (€45) may save you a trial.

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