Proof of Late Regularisation of the Managing Agent's Powers: Burden of Proof

Imagine for a moment: you are the owner of a flat in Betton, a small town in Ille-et-Vilaine. Your managing agent brings legal proceedings against a neighbour for unauthorised works. But you wonder: did he have the power to act in time? If the managing agent regularised his authorisation after the legal deadline, is the action valid? And above all, who must prove that this regularisation is late?

This apparently technical question has concrete consequences for thousands of co-ownerships. The Court of Cassation, in a judgment of 14 February 1996 (No. 93-17.667), ruled: it is for the person who raises the inadmissibility to prove that the managing agent did not have the necessary powers at the time of acting. In other words, if you are sued by a managing agent, you cannot simply claim that he did not have the authorisation of the general meeting: you must demonstrate that the regularisation occurred too late.

This decision, handed down nearly thirty years ago, remains highly relevant today. It recalls a fundamental principle: the burden of proof lies with the person who challenges, not the person who acts. But how does this translate in practice, particularly for co-owners in Redon or any other town? Analysis.

The facts: a story like many others

The case begins in a co-ownership, probably in the Rennes area. The managing agent, acting on behalf of the co-owners' association, summons two companies, Patech and Pelib, before the Tribunal de Grande Instance. The subject of the dispute? Defects or neighbourhood problems – the detail matters less than the procedure.

The defendant companies, challenging the validity of the action, raise a procedural bar: they argue that the managing agent had not been authorised by the general meeting of co-owners to bring legal proceedings. In co-ownership law, this is a mandatory prerequisite (Article 55 of the Decree of 17 March 1967, then in force). Without this authorisation, the managing agent cannot validly represent the association before the courts.

The managing agent, for his part, produces a resolution of the general meeting which, according to him, authorises him to act. But the companies Patech and Pelib retort that this authorisation was obtained after the expiry of the time limit for bringing the action. In short, the regularisation would have occurred too late, rendering the action inadmissible.

The Rennes Court of Appeal, seized of the case, rules in favour of the managing agent. It dismisses the companies' procedural bar on the ground that they did not prove that the regularisation was late. The companies then appeal to the Court of Cassation, arguing that it was for the managing agent to demonstrate that he had the necessary powers at the time of acting.

The Court of Cassation, in its judgment of 14 February 1996, dismisses the appeal. It confirms the reasoning of the Court of Appeal: the burden of proving the lateness of the regularisation lies with the person who invokes it. In other words, the companies Patech and Pelib had to prove that the authorisation given to the managing agent was after the limitation period for the action. Having failed to do so, their procedural bar was unfounded.

The reasoning of the court – explained

To understand this decision, we must return to the rules of civil procedure. Article 9 of the Code of Civil Procedure provides that "each party must prove the facts necessary for the success of his claim". This is the principle of the burden of proof. In this case, the defendant companies raised a procedural objection: the inadmissibility of the action for lack of authorisation of the managing agent. However, it is for the person who relies on a procedural bar to provide proof of it.

The Court of Cassation applies this principle without deviation. It recalls that the managing agent regularised his situation after the summons, which is possible as long as the limitation period has not expired (this is the theory of regularisation during proceedings, accepted by case law). But if the regularisation occurred after the limitation period, the action becomes inadmissible. However, the defendant must demonstrate that the time limit had expired at the time of regularisation.

In other words, the managing agent does not have to prove that he had the authorisation from the outset. It suffices that he produces a subsequent resolution, provided that the limitation period has not yet expired. And it is for the challenger to prove that this time limit was exceeded. A subtle but crucial nuance.

What few people know is that this judgment is part of a consistent line of case law from the Court of Cassation. As early as 1986, it had ruled that the regularisation of the managing agent's powers is possible even during proceedings (Civ. 3e, 12 March 1986). The 1996 judgment merely clarifies the burden of proof. There is no reversal, but a useful confirmation for practice.

undefined, I have encountered cases where co-owners tried to have an action by the managing agent annulled by arguing a lack of authorisation. Without proof of lateness, their argument failed. This judgment is therefore a valuable tool for managing agents and co-owners' associations, but also a warning for defendants: if you challenge, you must provide concrete evidence.

What this changes for you – practically

For a co-owner in Redon, this decision has direct implications. Imagine that your managing agent brings an action against a contractor who has carried out work poorly in the common parts. You believe that the managing agent did not have the authorisation of the general meeting. You might be tempted to raise the inadmissibility. But be careful: you will have to prove that the authorisation was given after the limitation period (for example, 5 years for latent defects). If you have no proof, your challenge will be rejected.

For the managing agent himself, this judgment is reassuring. He does not have to prove that he had the authorisation from the start. He can regularise during the proceedings, as long as the time limit has not expired. This gives him valuable leeway. But be careful: he must act quickly. If the limitation period expires before regularisation, the action is definitively inadmissible.

For a landlord owner in Betton, who rents out his property, the impact is indirect. If the managing agent sues your tenant for nuisances, the tenant might challenge the validity of the action. But he will have to prove that the managing agent did not have the power at the time of acting. A heavy burden, which protects the co-owners' association.

Finally, for a purchaser of a co-ownership unit, this case law concerns you if you inherit an ongoing dispute. Check that the managing agent was indeed authorised by the general meeting, but do not worry unduly: regularisation is possible. The key point is the date of the resolution in relation to the limitation period.

Concrete example: a managing agent brings an action in 2023 for defective works carried out in 2018. The limitation period is 5 years, i.e. until 2023. If the general meeting authorises the managing agent in 2022, that is within time. But if the authorisation only occurs in 2024, after the limitation period, the action is inadmissible. And it is for the defendant to prove that the authorisation is from 2024, not for the managing agent to prove that it is from 2022.

Four tips to avoid this type of dispute

• For the managing agent: Have an authorisation to bring legal proceedings voted as soon as possible, ideally at the general meeting following the birth of the dispute. Do not wait until the limitation period expires. Keep the minutes of the general meeting and the date of notification carefully.
• For the challenging co-owner: If you want to challenge the managing agent's action, gather evidence: ask for the date of the general meeting, check the applicable limitation period (2 years for actions between co-owners, 5 years for latent defects, etc.). If you do not prove the lateness, your challenge will be futile.
• For the co-ownership council: Monitor the actions brought by the managing agent. Ensure that the authorisation was indeed voted at the general meeting and that the limitation period is not close to expiring. Regular monitoring avoids last-minute regularisations.
• For any co-owner: Consult a lawyer lawyer as soon as a dispute arises. A lawyer can advise you on the limitation period and the burden of proof. In Redon or Betton, do not hesitate to make an appointment for an initial analysis.

Further analysis: related case law and developments

This 1996 decision is part of a line of case law from the third civil chamber of the Court of Cassation. In 1986 (Civ. 3e, 12 March 1986, No. 84-14.877), the Court had already admitted the regularisation of the managing agent's powers during proceedings. The 1996 judgment merely clarifies the burden of proof. More recently, a 2019 judgment (Civ. 3e, 5 September 2019, No. 18-19.592) recalled that the lack of authorisation of the managing agent to act is a procedural bar that can be regularised even on appeal, provided that the limitation period has not expired.

The trend is therefore liberal: case law favours regularisation and the preservation of actions, even if it means increasing the burden of proof on the challenger. This means that managing agents have an interest in regularising quickly, but they benefit from a certain flexibility. For the future, it is likely that this position will be maintained, as it meets a requirement of legal certainty: avoiding that valid actions are nullified by a simple procedural defect.

Key points to remember

FAQ: practical questions

1. Can I challenge a managing agent's action if the general meeting's authorisation is subsequent to the summons? Yes, but you must prove that this authorisation occurred after the expiry of the limitation period. Without proof, your challenge will be rejected.
2. What is the applicable limitation period? It depends on the subject of the dispute: 5 years for actions in contractual liability, 2 years for actions between co-owners (Law of 1965), 10 years for latent defects in construction law. Check with a lawyer.
3. Can the managing agent regularise on appeal? Yes, according to the most recent case law (2019), regularisation is possible as long as the limitation period has not expired, even on appeal.
4. What should I do if I am sued by a managing agent? Check the date of the general meeting that authorised the action. If it is subsequent to the summons, ask for the date of the resolution and compare it to the limitation period. Consult a lawyer to assess admissibility.
5. Who bears the costs if the procedural bar is rejected? Generally, the losing party bears the costs and may be ordered to pay an indemnity under Article 700 of the Code of Civil Procedure. In our judgment, the companies Patech and Pelib probably had to pay the managing agent's costs.

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. Make an appointment →