Nullity of General Meeting: When a Defect in Convening Does Not Suffice to Annul

Imagine: you own a flat in Arcachon, in a development managed by a SCI (Société Civile Immobilière, a French property holding company). One day, you learn that the general meeting has voted for roof works costing €50,000, but the non-member manager was not summoned. You think everything is void? Not so fast.

This decision of the Court of Cassation of 19 July 2000 answers a crucial question: can a defect in convening general meetings, even contrary to the articles of association, annul everything? The answer is no, provided that no mandatory law is violated. Explanations follow.

For landlord owners in Libourne as for co-owners in Bordeaux, this judgment is a breath of fresh air: it prevents minor procedural defects from overturning important decisions. But beware, not everything is permitted. Let us see together what must be remembered.

The facts: a story that happens every day

The SCI Le Plateau, based in Rennes, had two members: Mr X (statutory manager) and Mrs Y, each holding half of the shares. In 1988, a co-manager, Mr Z, was appointed. But in 1991, a general meeting removed both managers. Problem: Mr Z, a non-member manager, was not summoned to this meeting. The SCI's articles of association provided that all managers must be summoned.

Mr Z contested the validity of the meeting and the removal. He brought the matter to court, which ruled in his favour at first instance: the meeting was annulled. The SCI appealed. The Rennes Court of Appeal, on 27 January 1998, reversed the judgment: it refused to annul the meeting, considering that the defect in convening was not sanctioned by nullity. Mr Z appealed to the Court of Cassation.

But the Court of Cassation dismissed his appeal on 19 July 2000. It confirmed that the contractual stipulations on convening are not a cause of automatic nullity. Mr Z would have had to prove actual harm. This is a twist that changes everything for non-member managers.

The reasoning of the court — dissected

The Court of Cassation relies on a fundamental principle: in company law, nullity of general meeting resolutions is an exception. It is only pronounced if a mandatory provision (a law that applies to everyone, which cannot be contracted out) has been violated, or if the defect in convening caused harm (prejudice) to the person complaining.

Here, the SCI's articles of association required the summoning of all managers, but this rule is not a mandatory provision: it is a contractual clause freely chosen by the members. However, Article 44 of the Decree of 3 July 1978 (which governs SCIs) imposes certain rules on convening, but it does not provide for nullity in case of non-compliance. The Court deduces that non-compliance with a simple contractual clause does not automatically lead to annulment of the meeting.

The judges also recall that Mr Z, as a non-member manager, had no voting right. His presence at the meeting would not have changed the outcome. Therefore, no harm is demonstrated. The Court thus confirms constant case law: no nullity without a legal text or without prejudice.

What this changes for you — concretely

For landlord owners: if you are a member of an SCI and a meeting has a defect in convening, do not cry nullity too quickly. You must prove that this defect caused you harm. For example, if you were unable to vote on an important point and your vote would have changed the outcome, then yes, nullity is possible.

For non-member managers: this decision is a warning. You are not a member, so your convening is not always mandatory. If you believe your removal is abusive, you must demonstrate harm (e.g., loss of remuneration). In Libourne, a non-member manager removed without being summoned tried to obtain €15,000 in damages, but without proof of harm, he was dismissed.

For purchasers: before buying shares, check the articles of association and minutes. If meetings have been contested, ensure no nullity action is pending. Otherwise, you could inherit litigation.

For co-owners: be careful, in co-ownership the rules are different. Article 42 of the 1965 law provides that any irregularity in convening leads to nullity of the meeting, without needing to prove harm. Do not confuse with SCIs!

Four tips to avoid this type of dispute

• Check your articles of association: read the clauses on convening managers and members. If they impose strict formalities, follow them to the letter, even if nullity is not automatic. A lawsuit is expensive.
• Always summon all managers: even if the law does not require it, systematic convening avoids any challenge. Use registered letter with acknowledgement of receipt, and keep the proofs.
• Draft a precise minutes: mention those present, absent, votes. Have it signed by the chair of the meeting. Well-drafted minutes discourage appeals.
• Consult a lawyer before contesting: if you believe a meeting is irregular, seek advice before taking action. A challenge without solid grounds may cost you costs (court fees) and an indemnity for abusive proceedings.

Further analysis: related case law and developments

This decision is part of a consistent line: the Court of Cassation is reluctant to pronounce nullity of meetings for procedural defects. Thus, in a judgment of 12 May 1998 (no. 96-18.345), it had already ruled that disregard of the articles on the method of convening did not entail nullity. On the other hand, violation of mandatory rules of the 1978 Decree (such as the 15-day notice period for convening) can be sanctioned if harm is proved.

Since 2000, the trend is confirmed: judges favour the stability of collective decisions. For SCIs, the 2019 reform (Ordinance no. 2019-738) relaxed formalities, but the principles remain. Today, if you want to annul a meeting, you will need to demonstrate how the irregularity harmed you. An evolution that makes members and managers more responsible.

What you absolutely must remember

FAQ: 5 essential questions and answers

1. Does a defect in convening always annul the general meeting of an SCI? No, only if mandatory law is violated or if the claimant proves harm.
2. Can I contest a meeting if I was not summoned as a non-member manager? Yes, but you must demonstrate that your absence caused you harm (e.g., loss of remuneration).
3. What are the time limits for action? In an SCI, the action for nullity is time-barred after 3 years from the meeting (Article 1844-14 of the Civil Code).
4. What should I do if I discover a defect in convening? Gather evidence (unreceived summons, minutes) and consult a lawyer. Do not neglect: a defect can be regularised if no one reacts.
5. Can a non-member manager claim damages? Yes, if he proves harm. But mere removal without convening is not enough.

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 →