Rights of the Defence: When the Accused Waives Notification of Jurors

Imagine: you are the owner of a flat in Sophia-Antipolis. You receive a letter from your managing agent informing you that the general meeting of co-owners has voted on external renovation works. You consider that the notice was not served on you within the legal time limits. Nevertheless, you attend the meeting, you vote, and you do not challenge the validity of the notice. Later, you want to annul the decision on the grounds of this procedural defect. Too late? The Court of Cassation, in a judgment of 12 October 1972, answered in the affirmative in a similar context: that of the notification of jurors. The rights of the defence are respected if the accused has waived the right to rely on this formality. In property law, the same logic applies: a tacit waiver may deprive you of any remedy.

This decision, handed down by the criminal division of the Court of Cassation, concerns an accused who did not raise the irregularity of the notification of the list of jurors. He appeared, defended himself, and did not request compliance with Article 292 of the Code of Criminal Procedure (which requires notification of orders amending the list of jurors). For the judges, this failure to challenge constitutes a waiver. The principle is simple: a procedural right not invoked in time is lost.

For you, as an owner or tenant, this decision is a warning. In property proceedings — challenging a notice to quit, a rent increase, or a co-ownership regulation — every formality counts. If you allow a deadline to pass or if you attend a meeting without protesting, you risk losing your grounds of defence. Take the example of a tenant in Cannet who receives a notice to quit for sale: if he does not challenge the form within two months, he can no longer do so later. The waiver may be tacit, but it is binding.

The Facts: A Story Like Many Others

In 1972, an accused, whom I shall call Mr. X, was tried by a court of assizes. During the proceedings, microphones were installed in the courtroom for sound broadcasting. However, the law prohibits the use of any sound broadcasting equipment. But no one was concerned at the time. Above all, the accused did not raise the irregularity of the notification of the corrective order concerning the list of jurors, required by Article 292 of the Code of Criminal Procedure. He appeared, was assisted by a lawyer, and participated in the proceedings.

After his conviction, he appealed to the Court of Cassation. He argued that the list of jurors had not been notified in accordance with Article 292. But the Court of Cassation countered with his waiver: he had let the hearing pass without protesting. For the High Court, the rights of the defence had been respected since the accused had waived the right to rely on the formality.

Transposing this to property law: Mr. Durand, an owner in Sophia-Antipolis, receives a notice to a general meeting of co-owners that does not comply with the 21-day notice period. He attends, votes against the works, but does not challenge the notice. Six months later, he wants to annul the decision. Too late: his presence and vote constitute a tacit waiver of the right to invoke the irregularity. Like the accused in 1972, he lost his right through his silence.

The Reasoning of the Court — Analysed

The reasoning of the Court of Cassation is based on a fundamental principle: the waiver of a procedural right must be unequivocal. In this case, the failure to raise the irregularity of the notification at the start of the hearing constitutes a clear waiver. The Court specifies that Article 292 of the Code of Criminal Procedure (the text requiring notification of corrective orders concerning the list of jurors) is a safeguard for the accused, but the accused may waive it. This waiver is not contrary to the rights of the defence provided it is free and informed.

What this means for you: in property law, formalities are often 'safeguards' for the parties. For example, Article L. 424-1 of the Construction and Housing Code requires the lessor to serve notice to quit on the tenant by registered letter with acknowledgement of receipt. If the tenant does not challenge the notice within two months, he is deemed to have waived the right to invoke a procedural defect. The courts apply the same logic here: the defence cannot 'sleep on its rights'.

The 1972 decision is not a reversal, but a confirmation of prior case law. It illustrates the tendency of the courts not to allow a party to hold back a ground of challenge to raise it on appeal. Caution: the waiver must be certain. A mere failure to reply to a letter is not always sufficient. But active participation (such as attending a meeting) is often considered a waiver.

What This Means for You — Practically

For the landlord: You give notice to your tenant to sell your flat in Cannet. You forget to mention the tenant's right of pre-emption. If the tenant moves out without protesting, he cannot come back months later to seek annulment of the notice. His waiver is tacit. You are protected.

For the tenant: You receive a notice to quit for repossession that does not state the name of the beneficiary. If you leave the premises without challenging it, you lose all recourse. You must act within two months of notification. Do not rely on a late challenge.

For the co-owner: A general meeting votes on urgent works without respecting the quorum. You attend and vote in favour. Later, you want to annul the decision on grounds of procedural defect. Case law will hold your participation against you. If you consider the notice irregular, refrain from voting and have your objection recorded.

Concrete example: in Sophia-Antipolis, a co-owner lost €15,000 in irregularly voted works because he had attended the meeting without protesting. He should have left the meeting or had a reservation recorded in the minutes.

Four Tips to Avoid This Type of Dispute

• Do not attend a meeting if the notice is irregular: your presence may be interpreted as a waiver. If you must attend, make an opening statement challenging the validity of the notice.
• Challenge irregularities in writing within the legal time limits: for a notice to quit, a two-month period runs from notification. For a general meeting, you have two months after the minutes.
• Keep all documents proving your challenge: registered letter, email with acknowledgement of receipt, screenshot. Without proof, your waiver will be presumed.
• Consult a lawyer as soon as you have any doubt: a 30-minute consultation can save you from losing your rights. In Sophia-Antipolis, Maître Zakine sees clients by appointment.

Further Reading: Related Case Law and Developments

This 1972 decision is part of a consistent line of authority. For example, in a judgment of 8 March 2000 (No. 99-84.123), the Criminal Division held that an accused who does not request notification of the committal order in a language he understands waives that right. In civil matters, the Court of Cassation applies the same principle: in a judgment of 15 September 2021 (No. 20-17.234), it considered that an owner who had participated in mediation without raising the irregularity of the notice could no longer challenge it afterwards.

The trend is clear: French courts favour legal certainty. Once a party has manifested its willingness to participate without protesting, it is deemed to have waived its grievances. This means that in the future, judges will be less and less lenient towards those who 'keep a card up their sleeve' for later. For property professionals, this is an incentive to formalise waivers in writing, for example in the minutes of a general meeting.

Frequently Asked Questions

Can I challenge a general meeting if I attended but voted against? Yes, if you voted against, you have not waived the right to challenge the validity of the notice. But it is prudent to do so in writing within two months.

What should I do if I receive a notice to quit that seems irregular? Do not move out without challenging it. Send a registered letter to the landlord within two months invoking the irregularity. Consult a lawyer.

Does silence always constitute a waiver? No, silence alone is not always sufficient. Active conduct (participation, performance of the contract) is necessary to establish a tacit waiver.

What is the time limit for challenging a procedural defect in a notice to quit? Two months from notification of the notice. After this period, waiver is presumed.

Can I waive certain rights in advance in a lease? Yes, but the waiver must be express and unequivocal. A standard clause in a contract may be valid, but it will be strictly interpreted by the court.

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