General meeting of a co-ownership: a decision exists as soon as there is a vote, even without proper notice

Picture the scene: you are the owner of a flat in a small co-ownership in Cassis, overlooking the sea. A neighbour carries out work on the roof terrace – a common part – without you having been summoned to a general meeting. You wonder: is this decision valid? Can you ignore it? This situation, more common than one might think, raises a fundamental legal question: from when does a decision of a general meeting exist?

The answer, given by the Court of Cassation in a judgment of 13 November 2013 (No. 12-12.084), is clear: a decision of a general meeting exists as soon as a question is put to all the co-owners and endorsed by a vote. It does not matter that the notice is irregular or that the managing agent is no longer in office. In other words, the act exists – it is not 'non-existent' – even if it can be annulled by a judge.

But what exactly does this change? In law, the distinction between 'non-existence' and 'nullity' (annulment) is crucial. A non-existent decision is deemed never to have taken place: you can ignore it without recourse to a judge. On the other hand, a voidable decision produces its effects as long as it is not challenged in court within a short time limit. This decision of the Court of Cassation therefore secures acts taken at meetings, while reminding that defects of form must be challenged quickly.

The facts: a story like those that happen every day

Mr X, an owner in Cassis, is appointed 'new chairman of the voluntary managing agent of the co-ownership'. The previous managing agent was not regularly appointed – his term had expired several years earlier. In August 2003, a meeting was organised among all co-owners. On the agenda: authorisation to carry out work on the common parts, particularly the roof. The co-owners vote and authorise Mr X to carry out the work. The work is done.

But one co-owner, unhappy, challenges the validity of this decision. He argues that the meeting does not constitute a valid general meeting, for lack of a proper notice by a managing agent in office. According to him, the work is therefore 'irregular' and the decision non-existent. The Court of Appeal agrees with him: it holds that the minutes of the meeting cannot be described as a general meeting, because it was not convened by a regularly appointed managing agent. It concludes that the authorisation for the work is non-existent, and that the work was carried out without right.

The Court of Cassation overturns this reasoning. It recalls that Article 42 of the Law of 10 July 1965 (which sets out the rules of co-ownership) does not distinguish according to the regularity of the notice: as soon as a question is put to all the co-owners and is the subject of a vote, a decision of a general meeting exists. The irregularities – lack of notice, irregular notice, illegitimate managing agent – do not lead to the non-existence of the decision, but only to its possible annulment. Consequently, the Court of Appeal violated the law.

The reasoning of the court – dissected

The Court of Cassation relies on Article 42 of the Law of 10 July 1965, which provides that actions challenging decisions of general meetings must be brought within two months of notification of the minutes. This text assumes that the decision exists – even if it is tainted with irregularities. In short, the law treats the general meeting as a legal fact: as soon as there is a meeting of co-owners and a vote, there is a decision, whatever the formal conditions.

What few people know is that the notion of 'non-existence' is a rare jurisprudential construct, reserved for cases where the act is so flawed that it cannot even be described as a legal act (for example, a decision taken without any vote). Here, the vote did take place. The trial judges could not therefore disregard the act as non-existent. They should, if appropriate, have annulled it for defect of form – but within the two-month period.

The arguments of the parties? The unhappy co-owner invoked absolute nullity for lack of notice. The Court of Cassation replies that the lack of notice is a defect of form, which falls under relative nullity (annulment), and not non-existence. In other words, the law protects the stability of collective decisions: they cannot simply be ignored; you must take legal action within strict time limits. This solution is consistent with the spirit of the law: to prevent decisions taken by the majority from being challenged years later.

What this changes for you – concretely

If you are an owner in a co-ownership, this decision has a direct impact. Imagine a general meeting is held without you having been summoned, and it votes for plastering work in Marseille. You discover the work two years later. Before this judgment, you could have argued that the decision is 'non-existent' and therefore void ab initio. Now, the decision exists: you must challenge it within two months of notification of the minutes. After this period, you are time-barred (you lose any remedy).

For a tenant: if your landlord passes on to you charges voted at an irregular meeting, you can challenge the charges, but not directly the decision of the meeting. You will have to show that the decision is voidable, not non-existent, which requires acting quickly.

For a buyer: check that decisions of general meetings, particularly authorisations for work on common parts, were taken in due form. If a decision is tainted with a defect, it is voidable, but as long as it is not annulled, it is deemed valid. A prudent buyer will ask for the minutes and ensure that the time limits for challenge have expired.

Concrete example: in Marseille, roof work amounting to €15,000 is voted at a meeting without proper notice. If no co-owner challenges within two months, the decision becomes final. Each co-owner must pay their share, even if they were not summoned. The only way out is to prove specific damage (for example, poorly done work), but not to challenge the vote itself.

undefined, I have come across cases where co-owners refused to pay charges on the ground that the meeting was 'non-existent'. The case law rejected them: the decision existed, it had to be challenged within time.

Four tips to avoid this type of dispute

• Check the regularity of the notice: Ensure that the general meeting was convened by registered letter or hand delivery, at least 21 days before the meeting. If you notice an irregularity, challenge it immediately by registered letter to the managing agent.
• Act within two months: Upon receipt of the minutes of the general meeting, note the date. You have two months to apply to the judicial court if you consider the decision irregular. Do not delay: after this period, you can no longer do anything.
• Insist on written minutes: Any decision of a general meeting must be recorded in minutes signed by the managing agent. If no minutes are drawn up, proof of the vote is difficult to provide. Always insist on them.
• If in doubt, consult a lawyer: Before starting work or challenging a decision, seek advice. A simple letter can sometimes resolve the dispute, but a lawyer specialising in property law in Marseille or Cassis can assess the strength of your case.

Further information: related case law and developments

The Court of Cassation confirmed this position in a later judgment of 4 February 2016 (No. 14-29.088): a general meeting convened by a managing agent whose term has expired is not non-existent, but voidable. Similarly, the failure to summon a co-owner does not lead to the non-existence of the decision, but only to its annulment (Cass. 3e civ., 19 March 2008, No. 07-11.242).

The trend of the courts is therefore clear: they favour the stability of collective decisions and sanction defects of form by relative nullity, subject to strict time limits. This means that co-owners must be vigilant and reactive. In future, this case law could be extended to other acts of co-ownership life, such as decisions of the co-ownership council.

Frequently asked questions

• Is a decision taken without notice void ab initio? No, it is voidable. You must challenge it in court within two months of notification of the minutes.
• What should I do if I learn that a meeting was held without my being summoned? Immediately ask the managing agent for the minutes. If you are within the two-month period, apply to the judicial court to have the decision annulled. If the time limit has passed, the decision is final.
• Can I refuse to pay charges voted at an irregular meeting? No, as long as the decision has not been annulled by a judge. You must pay, then possibly claim reimbursement if the annulment is pronounced.
• What is the cost of an action for annulment? Lawyers' fees vary: a simple consultation costs about €150, a full procedure can range from €1,500 to €5,000 depending on complexity. To be weighed against the financial stakes.
• Can a co-owner vote by proxy without proper notice? Proxy is a valid method of voting, but it does not cure the lack of notice. The defect in notice remains a ground for annulment.

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