Unwritten Co-ownership Clause: What to Do If the General Meeting Has Applied It?

Imagine: you own a flat in Saint-Vincent-de-Tyrosse, in a building where the co-ownership regulations provide that the scrutineers of the general meeting are always the co-owners holding the most shares. At the last AGM, the three largest owners (including a company) were appointed scrutineers. You challenge the vote on a façade renovation project. But the decision is made, and you wonder: "Can I challenge this decision?" The answer depends on a precise point of law: can an unlawful clause serve as a basis for a valid decision as long as it has not been officially declared unwritten?

The French Court of Cassation ruled on this in a judgment of 28 April 2011 (No. 10-20.514), quashing a court of appeal decision that had refused to annul a general meeting resolution taken pursuant to a clause in the co-ownership regulations that had been held to be unwritten. This decision is essential for all co-owners: it reminds us that as soon as a clause is unlawful, any decision based on it is tainted with nullity, without waiting for a prior judicial declaration.

In this article, we will analyse this decision, its practical consequences, and give you advice on how to react if you face a similar situation. Whether you are a property owner in Saint-Paul-lès-Dax or elsewhere, these principles apply to all co-ownerships.

The facts: a story that happens every day

The case began in a co-ownership where the internal regulations (the document setting out the rules of community living) provided that the scrutineers of the general meeting were "automatically those who held the most shares". In other words, the largest co-owners were automatically appointed. This clause, seemingly harmless, raises a legal problem: it fixes the appointment of scrutineers, whereas the law of 10 July 1965 (Article 15 of the Decree of 17 March 1967) requires that scrutineers be elected by the meeting or, failing that, appointed by the chairman of the meeting. A clause that contravenes this rule is deemed "unwritten", meaning it is void ab initio.

A co-owner, whom we will call Mr X, challenged the validity of a general meeting held in his building in Saint-Vincent-de-Tyrosse. He argued that the appointment of scrutineers under this clause was irregular and sought the annulment of the decision taken at that AGM (for example, the approval of accounts or a vote on works). He brought the case before the Tribunal de Grande Instance, and then on appeal.

The court of appeal, having found that the clause was indeed unwritten, nevertheless refused to annul the general meeting's decision. Its reasoning: as long as the clause had not been declared unwritten by a judge, it continued to apply. In other words, the AGM decision was valid because it was taken in accordance with regulations still in force.

Mr X appealed to the Court of Cassation. In its judgment of 28 April 2011, the Court of Cassation censured the court of appeal. It recalled a fundamental principle: "Does not draw the legal consequences of its own findings and violates Articles 24 and 43 of the Law of 10 July 1965, together with Article 15 of the Decree of 17 March 1967, the court of appeal which, after having declared a clause in a co-ownership regulation unwritten, refuses to annul the general meeting decision taken in application of that clause." In other words, once the judge has found that the clause is unwritten, the decision based on it must be automatically annulled.

The reasoning of the court — analysed

To understand the judgment, two key concepts must be grasped: the "unwritten" clause and the retroactive effect of such a declaration.

An unwritten clause (Article 43 of the 1965 Law) is a clause that contravenes the mandatory provisions of the co-ownership law. It is deemed never to have existed, as if it had never been included in the regulations. This means it is void ab initio (from the beginning), and not merely from the date of the judgment. Consequently, any decision taken in application of that clause is itself without legal basis and must be annulled.

The court of appeal had erred in considering that the clause "must continue to apply as long as it had not been declared unwritten". This reasoning is contradictory: if the clause is unwritten, it has never had legal existence. One cannot declare it unwritten and at the same time say that it produced effects until that declaration. It is as if one said: "This rule is prohibited, but since it was in the regulations, we apply it until a judge says it is prohibited." The Court of Cassation restores logic: the nullity of the clause entails the nullity of the act derived from it.

In other words, a co-owner challenging an AGM decision based on an unlawful clause does not have to wait for the clause to be first declared unwritten. He can directly seek annulment of the decision, and the judge, if he finds the clause unlawful, must draw the consequences and annul the decision.

This principle is constant in case law. It applies to all clauses in the co-ownership regulations that are contrary to law. For example, it is found with clauses limiting the voting rights of co-owners, or those imposing abusive charges.

What this means for you — practically

This decision has immediate practical implications for co-owners.

For the co-owner who challenges: If you believe that a decision of your general meeting was taken in application of an unlawful clause in the co-ownership regulations, you can directly seek the nullity of that decision, without first bringing an action against the clause itself. For example, if your regulations provide that the votes of co-owners in arrears are suspended (which is unlawful), and the AGM refused to let you vote, you can seek annulment of the resolution without waiting. However, note: the time limit to challenge a general meeting decision is two months from its notification (Article 42 of the 1965 Law). After this period, the decision becomes final, even if based on an unlawful clause.

For the managing agent or the co-ownership council: You must be particularly vigilant when drafting or amending the co-ownership regulations. An unlawful clause, even if never challenged, can be struck down at any time by a judge, with retroactive consequences on all decisions taken. It is therefore advisable to regularly check the regulations' compliance with the law, and to propose an amendment at a general meeting if necessary.

Concrete example in Saint-Paul-lès-Dax: Imagine a building where the regulations provide that the chairman of the meeting is always the co-owner holding the most units. This clause is unlawful because the chairman must be elected (Article 15 of the 1967 Decree). At an AGM, the largest owner (a SCI) presides and puts a budget to the vote. A co-owner challenges the resolution within two months. The court, if it finds the clause unwritten, will annul the decision. Result: the budget must be voted again at a new meeting.

For property professionals: This principle also applies to commercial leases or sale contracts when they contain unfair terms. In a property sale in Mont-de-Marsan, if a clause in the reservation contract is contrary to law (for example, an excessive withdrawal clause), the buyer can seek annulment of the sale on that basis.

Four tips to avoid this type of dispute

• Check your co-ownership regulations. Obtain the regulations and carefully read the clauses relating to the functioning of meetings: appointment of scrutineers, chairman, quorum, etc. If a clause seems suspicious (e.g. "the managing agent alone appoints the scrutineers"), consult a lawyer lawyer. In Saint-Vincent-de-Tyrosse, notaries can also help you with this check.
• Act quickly if you challenge. The two-month deadline to challenge an AGM decision is mandatory. As soon as you receive the minutes, examine the points that trouble you. If you suspect an unlawful clause, do not delay in consulting. undefined, I have seen cases where co-owners let the deadline pass, and could no longer do anything.
• Have the disputed clauses amended. If you are a member of the co-ownership council, propose a resolution at a general meeting to remove or amend non-compliant clauses. The law allows modification of the co-ownership regulations by the majority under Article 26 (majority of votes of all co-owners). This avoids future litigation.
• Keep a record of your challenges. If you cannot act within two months, write to the managing agent to report the problem and request that an item be placed on the agenda of the next AGM. This may be useful in future litigation, particularly to demonstrate your good faith and diligence.

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Further reading: related case law and developments

The solution reached by the Court of Cassation in 2011 is part of a consistent line of case law. Already, in a judgment of 9 July 2009 (No. 08-17.887), the Court had held that clauses in co-ownership regulations that contravene the mandatory provisions of the Law of 10 July 1965 are deemed unwritten, and their nullity can be invoked without any time condition. That judgment notably concerned a clause imposing a heavier majority than that provided by law for certain decisions.

Since 2011, case law has continued to affirm this principle. For example, in a judgment of 13 December 2018 (No. 17-26.854), the Court of Cassation specified that a clause requiring a co-owner to bear charges for services from which he does not benefit is unwritten, and AGM decisions applying it are void.

What this means for the future: judges are increasingly strict about the compliance of co-ownership regulations. Clauses that restrict the rights of co-owners or contradict the law are systematically sanctioned. It is therefore essential for managing agents and co-ownership councils to ensure compliance of the regulations, at the risk of seeing AGM decisions annulled years later, with significant financial consequences (e.g., annulment of voted works).

Frequently Asked Questions

1. What is an unwritten clause? It is a clause that is contrary to law and is deemed never to have existed. In co-ownership, this often concerns clauses that limit voting rights, impose abusive charges, or set majority rules different from the law.
2. Can I challenge a general meeting decision after two months if it is based on an unwritten clause? No, the two-month deadline is a limitation period (barring deadline). After this period, the decision becomes final, even if illegal. You must act quickly.
3. What is the cost of legal action to annul an AGM decision? Costs vary depending on complexity and lawyer. At first instance (Tribunal Judiciaire), expect between €1,500 and €3,000 for a standard case. If successful, costs may be awarded against the co-ownership.
4. What if the co-ownership regulations contain an unwritten clause but I have not challenged decisions within two months? You can ask the general meeting to amend the regulations to remove the clause. If the majority refuses, you can take the matter to court to have the clause declared unwritten, which will only have effect for the future (past decisions remain valid).
5. Does this case law apply to residential leases? Yes, by analogy. For example, a clause in a lease that prohibits the tenant from hosting close relatives (an abusive clause) can be declared unwritten, and a notice to quit based on that clause would be void. But the legal framework is different (Law of 6 July 1989).

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