Appointment of an ad hoc representative to convene a meeting in a SCI: who must be a party to the proceedings?

Imagine: you are a member of a family SCI in Saint-Doulchard, and for months the manager — your sister — has refused to convene a general meeting to vote on the sale of a property that is deteriorating. You want to apply to the court to appoint an ad hoc representative (an independent person responsible for convening the meeting of members). But against whom should you bring the action? Against your sister, against the company, or both? This question, which may seem technical, has immediate practical consequences: if you get the party wrong, your application may be rejected without consideration of the merits, causing you to lose time and money.

The Court of Cassation, in its judgment of 20 December 2023 (No. 21-18.746), provides a clear answer: only the company — and not the management or the other members — must be a party to the proceedings. This solution, based on Article 39 of Decree No. 78-704 of 3 July 1978 (which governs the operation of civil companies), puts an end to procedural uncertainty.

For a blocked member, this clarification is crucial. It simplifies the judicial route and avoids costly procedural errors. Let us analyse this decision together and see concretely what it changes for you.

The facts: a story like many others

Mr X and his sister Y are members of a family SCI created in 2005 to manage a building located in Aubigny-sur-Nère. In 2009, a protocol was signed: Y promised to transfer her shares to Mr X, but the transfer was never completed. The manager — initially Mr X, then replaced by Y — refused to convene a meeting to regularise the situation. Mr X, fed up, sues the SCI and Y in court to obtain the appointment of an ad hoc representative.

The Bourges High Court, in a first judgment, granted the application. But Y appeals, arguing that the action should have been brought only against the SCI, and not against her personally. The Bourges Court of Appeal, in a judgment of 20 May 2021, sets aside the judgment: it declares Mr X's application inadmissible on the grounds that manager Y was not a party to the proceedings, whereas in its view, the action necessarily concerns the company and its operation, but also the management.

Mr X appeals to the Court of Cassation. He argues that the appointment of an ad hoc representative is intended to temporarily replace the defaulting management body, and that only the interest of the company is at stake. The Court of Cassation agrees with him, quashing the appeal judgment. It recalls that, under Article 39 of the 1978 Decree, a member's application for the appointment of a representative responsible for convening a meeting of members concerns the company and its operating procedures. It follows that only the company is necessarily a party to the proceedings.

The reasoning of the court — analysed

The Court of Cassation bases its decision on a literal and teleological interpretation of Article 39 of Decree No. 78-704 of 3 July 1978. This article provides that, if a member applies to court for the appointment of a representative to convene a meeting, the application is brought before the president of the commercial court (or the judicial court for SCIs) sitting in summary proceedings. The text does not expressly specify who must be the defendant.

But the Court of Cassation deduces from its purpose that the application aims to replace the defaulting management body (manager, board of directors) to enable the company to function. Therefore, the action directly concerns the company, which is the only entity whose operation is at issue. The managers or members are not necessary parties, because they are only the organs or members of the company. In contrast, the company, as a legal person, holds rights and is subject to its own obligations. It must therefore be brought into the proceedings so that the decision is binding on it.

This solution is a confirmation of previous case law, notably a judgment of 4 July 2012 (No. 11-20.888), which had already established the principle. But it is important because it applies this principle to a situation where the manager was also a member and a party to the transfer protocol. The Court of Cassation rejects the argument that the manager should have been personally joined because of her role in the blockage. For the high court, regardless of whether the manager is the cause of the refusal: only the company is the legitimate party.

What this changes for you — concretely

For a minority member of an SCI, this decision considerably simplifies the procedure. If you are blocked by a manager who refuses to convene a meeting (for example, to vote on the sale of a property, approval of accounts, or amendment of the articles of association), you can now sue only the company, without having to personally join the manager. This reduces the risk of nullity of the claim and speeds up the processing of your application.

Take a concrete example: in Aubigny-sur-Nère, an SCI owns a commercial premises leased to a craftsman. The manager, who is also the majority member, refuses to convene a meeting to vote on urgent works. The minority member, who holds 30% of the shares, applies to the court. Before this judgment, he might have hesitated as to whom to sue: the manager, the company, or both? Now, he knows that he must sue the SCI alone. The saving in time and money is real: a simplified claim, fewer bailiffs, and a faster hearing.

For real estate professionals (notaries, lawyers, property managers), this clarification is also welcome. It secures procedures and avoids sterile procedural debates. On the other hand, for managers, the decision implies that they are not personally parties to the dispute, which may be seen as protection against abusive actions. But beware: if the manager has committed a personal fault (for example, an abuse of majority), he may be sued on another basis (notably Article 1240 of the Civil Code, which sanctions fault).

If you are in this situation, you must: verify that your application is indeed aimed at convening a meeting of members; sue the company, represented by its legal representative (the manager); and set out the reasons for the blockage. The summary judge decides quickly, often within a few weeks.

Four tips to avoid this type of dispute

• Draft clear articles of association: Provide for the procedures for convening meetings, especially in case of disagreement between members. For example, stipulate that any member holding more than 10% of the shares can request a meeting, and that the manager must respond within 15 days.
• Use the amicable route first: Before taking legal action, send a registered letter with acknowledgment of receipt to the manager reminding him of his legal and statutory obligations. Often, this simple letter resolves the situation.
• Anticipate conflicts through mediation: Insert a mandatory pre-litigation mediation clause in the articles of association. This allows disputes to be resolved without going to court, which is faster and cheaper.
• Keep all evidence: Preserve proof of your requests for a meeting, any refusals, emails, and minutes of previous meetings. These documents will be essential to convince the judge of the blockage.

Further reading: related case law and developments

The Court of Cassation had already ruled on this point in a judgment of 4 July 2012 (No. 11-20.888), but in a different context: it was a public limited company. The solution was the same: only the company must be a party. The 2023 judgment confirms this position for SCIs, thus clarifying the scope of Article 39 of the 1978 Decree.

A more recent decision, of 24 January 2024 (No. 22-15.123), extended this reasoning to the application for removal of a manager for just cause: here again, only the company is a necessary party. The jurisprudential trend is therefore clear: actions concerning the internal functioning of the company must be brought against the legal person, not against its organs or members personally.

For the future, it can be expected that this rule will be applied to other similar actions, such as the application for the appointment of a management expert or a provisional administrator. This strengthens legal certainty for members and simplifies collective procedures.

Checklist before acting

• Have I correctly identified the company? Check its name, SIRET number, and registered office. The claim must be served at its address.
• Do I have proof of the blockage? Gather letters of refusal to convene, emails, or any document showing that the manager is not responding.
• Have I respected a reasonable notice period? Generally, it is prudent to have sent a written request at least 15 days before applying to the judge.
• Have I consulted a lawyer? Even if the procedure is simplified, a lawyer specialising in real estate law can verify the admissibility of your application and draft the claim effectively.

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 →