Nullity of AG in co-ownership: the expired mandate of the syndic is not enough

Imagine: you receive a notice for the general meeting of your co-ownership in Canet-en-Roussillon. You attend, you vote, decisions are made. Then, a few months later, you discover that the syndic who convened the meeting had a mandate that expired three weeks ago. Your first reaction? Ask for the annulment of the entire meeting, of course! But the courts answer: not so fast. This is exactly what the Court of Cassation recalled in a judgment of 7 September 2011 (No. 10-18.312). This decision, often overlooked, protects the stability of collective decisions in co-ownership, but on one condition: that the co-owner who challenges the meeting was an opponent at the meeting. Explanations.

The facts: a story that happens every day

Mr. X owns a flat in a co-ownership located in Collioure. In 2006, his syndic, the company Perrin et Chaffoteaux, convenes the general meeting of 14 October. The syndic's mandate, which was due to expire on 30 September, had therefore already ended two weeks earlier. However, Mr. X is present at the meeting, represented by an agent. He does not vote against the resolutions, but approves them or abstains. Later, he learns of the nullity of the syndic's mandate and sues the co-owners' association for nullity of the general meeting and all its decisions.

The Court of Appeal rules in his favour: it annuls the general meeting on the ground that the syndic no longer had the capacity to convene the meeting. But the co-owners' association appeals to the Court of Cassation. The Court of Cassation sets aside the appeal judgment on the basis of Article 42, paragraph 2, of the Law of 10 July 1965. What does this text say? It provides that actions for nullity of a general meeting must be brought within two months of the notification of the minutes, and above all, that only opposing or defaulting co-owners may bring such an action. However, Mr. X was present and represented, and had not voted against the resolutions. He was therefore not an opponent. The Court of Cassation deduces that he had no standing to seek nullity of the meeting, regardless of whether the syndic's mandate had expired.

The court's reasoning — broken down

The reasoning of the Court of Cassation is based on a strict interpretation of Article 42, paragraph 2, of the Law of 10 July 1965. This text provides that "actions for nullity [...] must, on pain of forfeiture, be brought by opposing or defaulting co-owners within two months of the notification of the minutes of the meeting." In other words, only co-owners who voted against a resolution (opponents) or who were absent (defaulting) may challenge the meeting. Those who voted in favour or abstained are deemed to have accepted the decisions.

In short, the Court of Cassation considered that the Court of Appeal had violated this text by annulling the meeting without verifying that Mr. X was an opponent. The expiry of the syndic's mandate is certainly an irregularity, but it is not of such a nature as to allow any co-owner to seek annulment. The applicant must have an interest in bringing proceedings, and this interest only exists if he has expressed his opposition at the meeting. However, be careful: this solution does not mean that the expiry of the mandate is without consequence. An opposing or defaulting co-owner can perfectly well invoke this ground to obtain annulment. But for those who voted in favour or abstained, it is too late.

What few people know is that this case law is part of a logic of legal certainty. The courts are keen to avoid general meetings being challenged years later on the basis of minor procedural defects. undefined, I have come across cases where co-owners tried to annul decisions taken three years earlier, on the pretext that the syndic had not been properly appointed. The Court of Cassation puts a stop to these attempts, unless the co-owner immediately expressed his opposition.

What this changes for you — concretely

This decision has very concrete practical implications for co-owners, whether they are landlord owners, occupants or buyers.

For the co-owner who votes against a resolution: you have every interest in making it known by voting against, and expressly mentioning it in the minutes. If you believe that the meeting is tainted by an irregularity (syndic without mandate, late notice, lack of quorum), your opposition opens the way for an action for nullity within two months of notification of the minutes. Example: in Collioure, a co-owner who challenges the renewal of the syndic must vote against and act quickly.

For the absent co-owner: you are considered defaulting, which also gives you the right to act. But be careful: if you are represented and your proxy votes in favour or abstains, you lose this right. It is therefore crucial to give precise instructions to your proxy.

For the co-owner who voted in favour or abstained: you will not be able to seek annulment of the meeting, even in the event of a serious irregularity such as the expiry of the syndic's mandate. You must therefore be vigilant from the notice onwards and, if you have any doubt, do not vote in favour. If you discover the irregularity afterwards, it is often too late.

For the buyer of a unit: before buying, check that recent general meetings have been validly convened. If the syndic had an expired mandate, but all co-owners present voted in favour, the decisions are final. You will not be able to challenge them afterwards.

In figures: an action for nullity of a general meeting costs on average between €1,500 and €3,000 in lawyer's fees, not including legal costs. If you lose, you may be ordered to pay the other party's costs. Better to be sure of your standing to act.

Four tips to avoid this type of dispute

• Always vote against if you suspect an irregularity: whether it is the expiry of the syndic's mandate, late notice or lack of quorum, your opposition is the key to being able to act later. Do not remain passive.
• Check the syndic's mandate before each meeting: the minutes of the previous meeting mention the end date of the mandate. If it has passed, notify the syndic before the meeting and request a postponement. In Canet-en-Roussillon, a vigilant co-owner can avoid a lot of trouble.
• Give written instructions to your proxy: if you cannot attend the meeting, draft a precise proxy indicating your vote on each resolution. Do not let your proxy vote as he sees fit, as his vote binds you.
• Act within two months: the deadline to challenge a general meeting is two months from notification of the minutes. After this deadline, you are time-barred (you lose any right to act). Note the date of receipt and act quickly.

Further reading: related case law and developments

This decision is part of a consistent line of case law from the Court of Cassation. Already, in a judgment of 13 December 2006 (No. 05-15.811), the Court had held that only the opposing or defaulting co-owner can bring an action for nullity. The 2011 judgment merely reaffirms this principle with a strict application: even an irregularity as fundamental as the lack of mandate of the syndic does not allow a non-opposing co-owner to act.

However, the Court of Cassation has been more flexible in other contexts. For example, for decisions that affect the rights of co-owners (such as the modification of the distribution of charges), case law admits that any co-owner can act, even if he voted in favour. But this is not the case for procedural defects relating to the convening of the meeting. Therefore, a distinction must be made: if the irregularity goes to the substance (e.g., abuse of majority), the status of opponent is not always required. But for a mere procedural irregularity in the convening, it is.

This trend of requiring a prior opposition has been strengthening in recent years. The courts want to avoid "silent" co-owners challenging collective decisions afterwards. undefined you must be reactive and make yourself known at the meeting.

Checklist before acting

FAQ: 5 practical questions

1. Can I challenge a general meeting if I was absent but my proxy voted in favour? No, because your proxy's vote is binding on you. You are considered to have approved the decisions. You must give contrary voting instructions.
2. What should I do if I discover the expiry of the syndic's mandate after the meeting? If you voted against or were absent, you have two months to act. Otherwise, you can do nothing, unless the irregularity is exceptionally serious (which is rare).
3. Does the two-month period run from the meeting or from notification of the minutes? From notification of the minutes. The date of notification is the date of receipt of the registered letter or hand delivery.
4. What is the cost of an action for nullity? Expect between €1,500 and €3,000 in lawyer's fees, plus legal costs (stamp, service). If you win, costs may be ordered against the co-owners' association, but this is not automatic.
5. Can I seek annulment of all resolutions or only some? You can seek annulment of the entire meeting or only certain resolutions. But if the meeting is annulled, all decisions fall.

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 →