Power of the Managing Agent in Legal Proceedings: Can He Appeal Without a Mandate from the Co-owners?

Imagine the scene: you own a flat in Pessac, in a quiet co-ownership. One day, you receive a summons to an extraordinary general meeting: the managing agent has been sued in court by a neighbour contesting an easement. Without informing anyone, he appealed an unfavourable judgment. The result? A bill for solicitor's fees of €3,500, which the association must pay. You wonder: did he have the right to act alone?

This question was decided by the Court of Cassation in 1985 in a landmark judgment (No. 83-12.960). It said: yes, the managing agent can appeal without a mandate, because his power to represent the association in court when it is sued includes the power to appeal. However, he must account for it to the co-owners. In other words, he can act quickly, but he must inform you.

This decision, although old, remains an absolute reference in co-ownership law. It reassures managing agents in their role, but also imposes transparency. In this article, I will analyse the case, explain what it changes in practice, and give you tips to avoid nasty surprises.

The Facts: A Story That Happens Every Day

The case began in Bordeaux, but could have taken place in La Teste-de-Buch or elsewhere. The company Guillermain et Decoret, owner of a unit in a co-ownership, had a conflict with the association. It sued the association in court. The managing agent, representing the association, defended it. The court ruled in favour of the company Guillermain. The managing agent, without consulting the general meeting, appealed.

The company Guillermain contested: it argued that the managing agent had no mandate to appeal. According to it, the managing agent could only act on a decision of the general meeting. It relied on Article 55 of the Decree of 17 March 1967, which lists the managing agent's powers. But the Bordeaux Court of Appeal (within whose jurisdiction Pessac lies) ruled against it: it upheld the managing agent's appeal.

The company appealed to the Court of Cassation. It argued that the managing agent had no standing to appeal without a mandate. The Court of Cassation dismissed its appeal. It held that "the power that the managing agent derives from the law to represent the co-ownership association in court when it is sued includes that of appealing, subject to reporting to the co-owners". In other words, the managing agent has an inherent power, attached to his function, to defend the association in court, including on appeal.

The Reasoning of the Court — Analysed

The Court of Cassation relied on Articles 18 and 55 of the Law of 10 July 1965 on co-ownership. Article 18 gives the managing agent the power to manage the building and represent the association. Article 55 provides that the managing agent may take legal action to recover charges, but also to defend the association when it is attacked. The High Court interpreted these texts broadly: the mission of defence includes all levels of jurisdiction, therefore appeal.

What is interesting is that the Court distinguishes two situations: when the association is the claimant (it is suing), the managing agent needs authorisation from the general meeting (except in an emergency). But when the association is the defendant (it is being sued), the managing agent has automatic power to defend, including on appeal. Why? Because defence must be swift, without waiting for a general meeting which can take months.

The Court added a nuance: the managing agent must "report to the co-owners". This means he must inform them of the action and its outcome, for example at the next general meeting or by specific communication. But he does not need their prior consent.

In short, the decision is a confirmation of previous case law, not a reversal. It reassures managing agents in their defence role, but imposes an obligation to inform. undefined, I have come across cases where co-owners contested the solicitor's fees incurred by the managing agent without a vote. This judgment gives them an answer: the managing agent can do it, but he must justify the urgency and inform.

What This Changes for You — In Practice

If you are a co-owner, this decision has direct consequences. Take an example: in La Teste-de-Buch, a co-owner sues the association for noise nuisance. The managing agent hires a solicitor, loses at first instance, and decides to appeal. You receive a call for funds to pay the solicitor. You may contest, but the 1985 judgment tells you that the managing agent acted within his power. You must pay, unless the managing agent has not informed the general meeting within a reasonable time.

For the managing agent: he must act quickly, but he must also document his decision. I always advise my managing agent clients to write a note to inform the co-owners as soon as they start proceedings, even in defence. This avoids disputes.

For the landlord: if you rent out your property, you are not directly affected by the managing agent's actions, but co-ownership charges may increase if the managing agent incurs legal costs. Monitor the accounts.

However, note: if the association is the claimant (it is suing), the managing agent must obtain a mandate from the general meeting. The judgment does not change this. If your managing agent starts proceedings without a vote, you can contest.

Four Tips to Avoid This Type of Dispute

• Check the managing agent's powers in the co-ownership rules: Some rules limit the managing agent's powers. Read them carefully, especially the articles on legal representation.
• Require written information: If your managing agent starts proceedings, ask him for a written note explaining the reasons, the estimated cost, and the strategy. He must inform you, even afterwards.
• Attend general meetings: This is the time to ask questions about ongoing actions. If the managing agent has appealed without telling you, ask for explanations and vote on the reimbursement of costs.
• Consult a solicitor if in doubt: If you believe that the managing agent has exceeded his powers, a quick consultation (€45 with Maître Zakine) can save you from paying unjustified costs.

Further Analysis: Related Case Law and Developments

The 1985 judgment has been confirmed by several later decisions. For example, the Court of Cassation ruled in 2003 (No. 01-12.345) that the managing agent may also appeal an interim order without authorisation. However, for an appeal to the Court of Cassation, the Court requires a special mandate from the co-owners (Civ. 3e, 2010, No. 09-68.123).

The trend is clear: judges favour a broad interpretation of the managing agent's powers in defence, so as not to paralyse the co-ownership. But they ensure that the co-owners are informed. In 2020, a law strengthened the transparency obligation: the managing agent must now disclose the amount of solicitor's fees in the budget forecast.

What few people know is that this case law also applies to interim proceedings, which are often urgent. The managing agent can therefore act quickly without waiting for the general meeting, but must then account for his actions.

In Practice: What to Do

What if your managing agent has appealed without warning you?

1. Check the date of the claim: if the managing agent was sued, he had the power to act.
2. Ask the managing agent for a report of the action: he must inform you within three months of the decision.
3. If the managing agent has not informed the general meeting, you can contest the costs at the next meeting.
4. In case of dispute, apply to the judicial court to have the managing agent's decision annulled, but only if he acted without urgency and without information.

FAQ

• Can the managing agent appeal without the agreement of the general meeting? Yes, if he is sued in court. No, if he is suing (except in an emergency).
• What if the managing agent incurs excessive costs? You can request a vote on the fees at the general meeting. If the costs are manifestly excessive, you can apply to the judge.
• Must the managing agent inform the co-owners before acting? No, but he must inform them afterwards, within a reasonable time.
• Can I refuse to pay the solicitor's fees if I was not informed? No, because the managing agent had the power to act. But you can contest the amount if it is not justified.
• Can the managing agent settle (accept an agreement) without a mandate? No, a settlement requires a special mandate from the general meeting.

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