Authority to bring legal proceedings in co-ownership: what the general meeting must decide

Imagine: you own a flat in Chamalières, in a co-owned building where cracks appear on the façade. The general meeting votes for the syndic to bring legal proceedings against the builder. The syndic serves a claim on the builder, but during the proceedings, he must serve a new claim on another party. The Court of Appeal tells you: "Sorry, the authorisation from the general meeting did not cover this new claim; your action is inadmissible."

Has this situation happened to you? Or do you fear it might happen? The question every co-owner asks is simple: once the general meeting has given the green light to take legal action, can the syndic freely pursue the action, even if he has to bring in new parties or amend his claims?

The Court of Cassation, in a judgment of 8 June 1994 (No. 92-11.556), answers clearly: yes, unless the general meeting has expressly limited its authorisation. Explanations below.

The facts: a story that happens every day

Mr and Mrs Dupont (fictitious names) own a flat in a residence in Chamalières. Together with the other co-owners, they notice defects in the common parts: water leaks, cracks. The general meeting of 15 March 1990 passes a resolution authorising the syndic to "take legal action against the builders and all those responsible" to obtain compensation.

The syndic, Me Martin, then serves a claim on Bâtir SA, the main builder. However, during the proceedings, he discovers that a subcontractor, Fondations Solides, is also responsible. He serves a new claim on the latter. Bâtir SA then raises the inadmissibility of the action on the grounds that the authorisation from the general meeting only covered the first claim, not the second.

The Riom Court of Appeal (which has jurisdiction over Clermont-Ferrand) rules in favour of Bâtir SA: it declares the association's action inadmissible against Fondations Solides, considering that the authorisation to act given by the general meeting was not maintained in the context of this new claim. The association appeals to the Court of Cassation.

The reasoning of the court — explained

The Court of Cassation quashes the Court of Appeal's decision. It relies on Article 55 of the Decree of 17 March 1967 (now codified in Article 18 of the Law of 10 July 1965, but the decree remains in force as to the procedural rules). This article provides: "The syndic may not bring legal proceedings in the name of the association without having been authorised to do so by a decision of the general meeting."

But the High Court clarifies: in the absence of any limitation in the decision of the general meeting, the power given to the syndic authorises him not only to initiate the proceedings, but also to pursue the action on behalf of the association. In other words, once the general meeting has voted "I authorise the syndic to take action against the builders", this authorisation covers the entire proceedings: initial claims, additional claims, submissions, appeals, etc.

In short, the Court of Appeal had added a condition that the law does not provide for. It required each new step to be validated by a new general meeting, which would be impractical. The Court of Cassation reminds us that the authorisation is global, unless the general meeting expressly limited its authorisation to a specific act (for example: "only to claim against company X, not to bring in other parties").

undefined, I have come across cases where syndics, out of excessive caution, requested a new authorisation for each step. This decision reassures them: the initial authorisation is sufficient, provided it is drafted in sufficiently broad terms.

What this means for you — in practice

If you are a co-owner: You can rest assured: if the general meeting gave the syndic a broad mandate to take action, he can pursue the action without having to convene you again for every development. Example in Clermont-Ferrand: the co-ownership "Les Volcans" voted in 2022 for an action against the developer for construction defects. Three years later, the syndic needs to bring in an additional engineering firm. No need for a new general meeting.

If you are a syndic: Ensure that the general meeting resolutions are drafted in general terms: "authorises the syndic to take legal action against all responsible parties, to commence any proceedings, to appeal, etc." This will avoid any risk of inadmissibility.

If you are a landlord owner: This decision also protects you indirectly. As a co-owner, you may be required to contribute to funding legal actions. A global authorisation avoids multiplying the costs of general meetings (notice, bailiff, etc.).

However, beware: if the general meeting voted a limited authorisation (for example, "to act only against developer X, for a maximum amount of €50,000"), the syndic cannot exceed this scope without a new authorisation.

Four tips to avoid this type of dispute

• Draft broad resolutions at the general meeting: Instead of "authorises the syndic to claim against company X", prefer "authorises the syndic to take legal action against all those responsible for defects, to commence all proceedings (claims, appeals, etc.) and to enter into any settlement up to [amount]". This avoids any subsequent challenge.
• Keep all general meeting decisions: In case of a dispute over the scope of the authorisation, you must be able to prove that the general meeting did not limit the mandate. Keep the minutes and resolutions.
• Instruct a lawyer lawyer from the outset: A property lawyer will draft the claims taking into account the authorisation given. He can also advise the syndic on whether a new authorisation is necessary.
• If you are a syndic, anticipate needs: Before serving a claim, check the wording of the authorisation. If it is too restrictive, convene a new general meeting to supplement it. Better safe than sorry.

Further reading: related case law and developments

This 1994 decision is part of a consistent line of the Court of Cassation. Already in a judgment of 27 February 1991 (No. 89-17.412), the High Court had ruled that the authorisation given to the syndic to bring legal proceedings covers the entire proceedings, including appeals. More recently, the Court of Cassation clarified (Civ. 3e, 20 September 2018, No. 17-21.450) that the authorisation to "take legal proceedings" includes the right to appeal, unless stated otherwise.

The trend is therefore towards simplification: the courts favour a broad interpretation of the authorisation, so as not to hinder the association's legal action. What few people know is that this solution is also pragmatic: it avoids paralysing proceedings with procedural issues.

For the future, if you face opposition on this ground, know that the courts are now very attached to the wording of the resolution. A well-drafted resolution is your best protection.

What you absolutely must remember

FAQ:

• Question: The general meeting voted "action against the builder", can the syndic also claim against the subcontractor? Answer: Yes, if the resolution does not expressly limit the parties targeted. The authorisation is global.
• Question: What if the syndic has to appeal, is a new authorisation required? Answer: No, the authorisation to bring legal proceedings includes the appeal, unless the general meeting prohibited the appeal.
• Question: What if the authorisation is too restrictive? Answer: Convene a new general meeting to extend the authorisation. In the meantime, the syndic must limit his acts to the authorised scope.
• Question: Can I challenge the syndic's action if I think he exceeded his authority? Answer: Yes, by applying to the Clermont-Ferrand judicial court. But you risk delaying the proceedings and incurring liability on the association. Better to prevent beforehand.
• Question: What is the time limit to act after the general meeting? Answer: The authorisation has no validity period, but the substantive action must be brought within the limitation period (5 years in general law, 10 years for decennial liability).

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 →