Notification of the Minutes of the General Meeting: the Time Limit Runs Even Without Receipt

Imagine: you own a flat in Biscarrosse, and you receive a notice of attempted delivery for a registered letter. You go on holiday, you forget to collect it. The result? Three months later you learn that the general meeting of your co-ownership property voted for roof repairs costing €15,000 each. Too late to challenge, you are told. Is this legal? The Court of Cassation has just answered yes, in a judgment of 29 June 2023. Explanations.

This decision is causing a stir among co-owners and managing agents. How far does the principle of legal certainty go? Can one really be deprived of the right to challenge a decision because one did not collect a letter? Is the right to a fair trial (Article 6 of the European Convention on Human Rights) thereby violated? The Court of Cassation has ruled: no, because the rule is proportionate to the objective of securing the functioning of co-ownership properties.

In this article, I will tell you the story behind this judgment, dissect the judges' reasoning, and above all give you practical advice to avoid finding yourself in this situation. Whether you are a co-owner in Capbreton or a managing agent in Mont-de-Marsan, these rules directly concern you.

The facts: a story that happens every day

Mr X is a co-owner in a building located in Biscarrosse. On 30 March 2015, the general meeting of co-owners was held and adopted several decisions, including approval of accounts and voting on works. The minutes were prepared and notified to all co-owners by registered letter with acknowledgement of receipt, in accordance with Article 64 of the Decree of 17 March 1967.

But Mr X did not collect the letter. He therefore never received the minutes. A few months later, he learned of the meeting and challenged the decisions before the court. The co-ownership association raised a procedural bar: the two-month time limit for acting (provided for in Article 42 of the Law of 10 July 1965) started running the day after notification, and it had expired. Mr X argued that, having not received the minutes, the time limit could not have started.

The Court of Appeal ruled in favour of the association. Mr X appealed to the Court of Cassation, alleging in particular a violation of Article 6 of the European Convention on Human Rights (right of access to a court). He argued that the rule was disproportionate: it prevented him from challenging decisions of which he had not been given the opportunity to know.

The Court of Cassation dismissed his appeal. It upheld the reasoning of the Court of Appeal: notification by registered letter starts the time limit running, whether or not the addressee has collected the item. The objective is legitimate: to prevent a co-owner, by refraining from collecting his post, from preventing the time limit from running and thereby undermining the implementation of the decisions of the general meeting. The measure is not disproportionate because the co-owner has other means of keeping himself informed (attending the meeting, consulting the minutes, etc.).

The reasoning of the court — dissected

The central question is this: does notification of the minutes of a general meeting by registered letter with AR start the time limit for challenging decisions running, even if the addressee does not collect the letter? Article 64 of the Decree of 17 March 1967 answers yes, without ambiguity. But is this provision compatible with the European Convention on Human Rights?

The Court of Appeal, seized of a ground based on Article 6 of the Convention (right to a fair trial), carried out a proportionality review. It noted that the rule pursues a legitimate objective: securing the functioning of co-ownership properties. Indeed, if a co-owner could, by not collecting his post, prevent the time limit from running, he could indefinitely delay a challenge, making general meeting decisions precarious. The law therefore protects the collective interest of the co-ownership.

Next, the court checked whether this restriction on the right of access to a court was proportionate. It noted that the co-owner is not helpless: he can attend the general meeting, consult the minutes at the managing agent's office, or be represented. Notification by registered letter is a reliable and traceable method of communication. If the co-owner has difficulty collecting his post (absence, change of address, etc.), it is up to him to arrange for the receipt of his post. The Court of Cassation approved this reasoning: there is no unjustified interference with the right of access to a court.

What few people know is that this solution is not new. The Court of Cassation had already affirmed it in a judgment of 19 May 2016 (No. 15-18.167). The 2023 judgment therefore confirms settled case law. In other words, the judges are holding the line: legal certainty prevails over the individual situation of the negligent co-owner.

undefined, I have come across cases where co-owners, having gone on an extended trip, did not collect their registered letter. They lost their right to challenge voted works, sometimes for significant sums. The lesson is clear: you must be vigilant.

What this changes for you — practically

This decision has direct implications for all co-ownership stakeholders. Here is what changes in practice.

For co-owners: you must imperatively collect your post, especially after a general meeting. If you receive a notice of attempted delivery, collect the registered letter without delay. The two-month time limit for challenging a decision runs from the day after notification, even if you do not collect the item. After this time limit, you are time-barred (you lose the right to act). Example: in Capbreton, a co-owner received a notice of attempted delivery on 5 June for the minutes of the AG of 15 May. He only collects it on 20 August. The time limit started on 6 June, so it expired on 6 August. His challenge is inadmissible.

For managing agents: this case law confirms the practice of notification by registered letter. You can continue to use it without fear. However, note: if the co-owner is absent and the letter is returned, you must keep proof of notification (the unsigned acknowledgement of receipt or the returned item). In the event of a dispute, this proof will allow you to demonstrate that the time limit has run.

For buyers: before purchasing a property in co-ownership, check that the seller has communicated all AG notifications to you. If minutes were notified by registered letter and not collected, the decisions have become final. You will be bound by them.

If you are in this situation, you must act quickly. As soon as you become aware of a decision that is detrimental to you, do not delay in consulting a lawyer. The two-month time limit is short and mandatory.

Four tips to avoid this type of dispute

• Collect your post regularly, especially after an AG. Check your mailbox every day for the two months following the meeting. If you receive a notice of attempted delivery, collect the registered letter as soon as possible. Do not rely on the managing agent to remind you.
• Attend general meetings. By being present or represented, you are informed of decisions in real time. You can vote and, if you disagree, prepare your challenge immediately. Absence is a risk.
• Give forwarding instructions if you are away. If you go on holiday or temporarily change address, have your post forwarded or give a power of attorney to a trusted person to collect your registered letters.
• Keep all notices of attempted delivery and proof of notification. In the event of a dispute, these documents can be decisive in proving the date on which the time limit started. The managing agent must also keep the ARs.

Further analysis: related case law and developments

This decision is part of a consistent line. As early as 2016, the Court of Cassation ruled that notification by registered letter starts the time limit running, even without collection (Civ. 3e, 19 May 2016, No. 15-18.167). More recently, it specified that this rule applies even if the co-owner has died and the notice is sent to his former address (Civ. 3e, 9 September 2020, No. 19-18.550).

On the other hand, the Court of Cassation tempered this strictness in a judgment of 12 July 2018 (No. 17-21.672): if the managing agent notifies the minutes to an incorrect address (for example, the co-owner's former address when the co-owner has notified his new address), the notification is ineffective and the time limit does not run. Therefore, the managing agent must be diligent in updating the address book.

The trend is therefore towards securing AG decisions, but requiring the managing agent to be rigorous in notifications. For the future, we can expect judges to continue to protect the stability of co-ownerships, while sanctioning the managing agent's negligence.

In practice: what to do

FAQ:

• What if I did not collect the registered letter and the time limit has passed? Unfortunately, you can no longer challenge the decision. But you can try to negotiate with the managing agent or obtain an amicable solution. Sometimes the managing agent may convene a new AG if the request is reasonable.
• Can I challenge a decision if I never received the minutes? Yes, if you prove that the notification was not made in accordance with the law (wrong address, no AR). But if the managing agent proves the sending, the time limit runs.
• What are the time limits for acting? The time limit for challenging is two months from notification of the minutes. This time limit is provided for in Article 42 of the Law of 10 July 1965. After this time limit, the action is inadmissible.
• What if I am in dispute with my managing agent? Consult a lawyer specialising in property law. An initial consultation can help you assess your chances and the steps to take.
• Can I request a copy of the minutes from the managing agent if I did not receive them? Yes, the managing agent is obliged to provide them to you upon request. But be careful: this request does not start a new time limit. The initial time limit is already running.

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