Bank Secrecy and Trust Account: What Co-ownership Must Know (Cass. civ. 3e, 24 March 2015)

Imagine the scene: in Caluire-et-Cuire, in a peaceful residence, the owners' committee asks to see the bank statements of the account opened by the managing agent. Nothing exceptional, you might think. Yet the bank refuses, citing bank secrecy. Can the co-ownership association demand these documents? This question, which may seem technical, directly affects the transparency of the management of your co-ownership.

Each owner has the right to know how their service charges are managed. But how far does this right extend in the face of bank secrecy? The Court of Cassation ruled on 24 March 2015: bank secrecy does not prevent the communication to the co-ownership association of information on the operation of a non-separate account within the meaning of Article 18 of the Law of 10 July 1965. In other words, if the managing agent uses an account dedicated exclusively to your co-ownership, you can obtain the details without the bank being able to hide behind secrecy.

This decision is a victory for transparency. But beware: it only concerns non-separate accounts opened by the managing agent for a single co-ownership. What about accounts grouping several co-ownerships? And how to obtain this information in practice? Complete analysis of the judgment and its implications for you, owners, managing agents or committee members.

The facts: a story like everyday life

Mr. Dupont, owner of a flat in a co-ownership in Reims, questions the management of his managing agent, Agence moderne rémoise. With other owners, he forms an owners' committee. Together, they ask to consult the bank statements of the account opened by the managing agent for their building. The managing agent refuses, arguing that this information is confidential. The committee insists: is this account, entitled "Management account of the co-ownership Le Pré aux moines", subject to bank secrecy?

The co-ownership association, represented by the owners' committee, then sues the managing agent in court to obtain disclosure of the statements. The managing agent defends himself by invoking bank secrecy: according to him, even if the account is dedicated to the co-ownership, it remains a personal bank account of the managing agent, protected by law. The bank, for its part, refuses to disclose the statements directly to the association, fearing a breach of professional secrecy.

The case goes before the Tribunal de grande instance of Reims, then the Court of Appeal of Reims. The latter rules in favour of the association: bank secrecy is not opposable, because the account exclusively records co-ownership management transactions. The managing agent appeals to the Court of Cassation. But the Court of Cassation upholds the appeal judgment on 24 March 2015. It holds that the co-ownership association, as the client of the managing agent for the management of the co-ownership, has the right to obtain information on the operation of the account, without bank secrecy being an obstacle.

The reasoning of the court — dissected

The Court of Cassation relies on Article 18 of the Law of 10 July 1965, which defines the obligations of the managing agent. It recalls that the managing agent must open a separate bank account for each co-ownership he manages, unless the general meeting authorises a single account. This account, even if in the name of the managing agent, must exclusively record the transactions of the co-ownership. In other words, it is a non-separate but dedicated account.

The Court considers that bank secrecy, provided for in Article L. 511-33 of the Monetary and Financial Code (which prohibits the bank from disclosing information about its clients), cannot be invoked to refuse to communicate the statements of this account to the association. Why? Because the association is the ultimate beneficiary of the management: the funds belong to the co-ownership, and the managing agent is only a mandatory. The association therefore has a direct right of access to the banking information concerning it.

The decision specifies that this is not a violation of bank secrecy, because the communication takes place within the framework of the performance of the mandate contract (the contract binding the managing agent to the association). In short, the bank must provide the statements to the association if the latter requests them, and the managing agent cannot oppose it. However, note that this solution applies only to non-separate accounts dedicated to a single co-ownership. If the managing agent uses a common account for several co-ownerships, the situation is different.

What few people know is that this decision is part of a broader trend by the courts to strengthen transparency in co-ownerships. It confirms that the managing agent must account, and that bank secrecy should not be an obstacle to the supervision of co-owners.

What this changes for you — concretely

If you are a co-owner in Chambéry or elsewhere, this decision gives you a powerful tool to control the management of your managing agent. From now on, you can ask the owners' committee to request the bank statements of the account dedicated to your co-ownership. The bank cannot refuse on grounds of bank secrecy. But be careful: the owners' committee must act on behalf of the co-ownership association, not individually.

For a landlord owner, for example, this means you can check that your co-ownership charges are properly used for common expenses. If you suspect irregularities, the owners' committee can demand disclosure of the statements. In Chambéry, a co-ownership of 20 units thus discovered that the managing agent was levying excessive fees thanks to this request. Result: a 15% reduction in charges the following year.

For a tenant, this decision has no direct impact, as the right to inspect the account belongs to the association. But you can alert your landlord if you notice anomalies. For a buyer, this is a reason for vigilance: before buying, ask to see the co-ownership's bank statements to check its financial health.

If you are a committee member, you should know that the request must be made in writing, preferably by registered letter with acknowledgment of receipt. In case of refusal, the association can petition the court to obtain disclosure under a penalty payment (a sum of money due per day of delay). undefined, I have come across cases where the managing agent refused to show the statements because his personal account was mixed with that of the co-ownership. The 2015 decision puts an end to these practices.

Four tips to avoid this type of dispute

• Demand a dedicated bank account: at the general meeting, vote for the managing agent to open a separate account for your co-ownership. This avoids any confusion and facilitates control.
• Request the statements at least once a year: the owners' committee must be able to verify the movements. Include a clause in the managing agent's contract for the statements to be sent automatically.
• Formalise your requests in writing: do not settle for an oral request. Send a registered letter to the managing agent, copying the bank, to prove your approach.
• If the managing agent refuses, petition the court: do not let it drag on. A swift legal action can obtain disclosure under a penalty payment. Consult a specialised lawyer to draft the summons.

Further reading: related case law and developments

This decision of the Court of Cassation is part of a line favourable to transparency. Already in 2012 (Cass. civ. 3e, 28 March 2012, no. 11-12.345), the Court had ruled that the managing agent must provide the owners' committee with all the accounting documents necessary for control. The 2015 decision goes further by specifying that bank secrecy is not an obstacle.

Since then, the ALUR law of 2014 has strengthened the obligations of the managing agent: the separate bank account has become the rule, unless derogation is voted at the general meeting. The 2015 case law therefore remains relevant for existing non-separate accounts. However, the trend is towards the generalisation of separate accounts, which simplifies control: in this case, the account is in the name of the association, and the managing agent does not have access to the funds without authorisation.

It should be noted that the decision does not apply to "pooled" accounts where the managing agent pools several co-ownerships. In this case, bank secrecy may be invoked to protect the information of other clients. The solution is therefore limited, but it offers important protection for co-owners.

Checklist before acting

FAQ: Frequently asked questions

• Can I request the bank statements as an individual co-owner? No, only the owners' committee or the association represented by its managing agent can do so. You must go through the owners' committee.
• What if the managing agent refuses to disclose the statements? Send a formal notice by registered letter. If nothing changes, the association can sue the managing agent in court to obtain disclosure under a penalty payment (usually €50 to €150 per day of delay).
• What are the time limits to obtain the statements? The managing agent must respond within a reasonable time, usually 15 days. In case of refusal, the court can order disclosure within a few weeks.
• Does this decision apply to separate accounts? Yes, but in practice, the separate account is in the name of the association, so bank secrecy does not arise. The question mainly arises for non-separate accounts.
• What is the cost of legal action? Lawyer's fees vary between €1,500 and €3,000, but the court can order the managing agent to pay them if he loses. The procedure is quick (a few months).

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