Syndic in court: can he defend the co-ownership without a vote at the general meeting?

Picture the scene: in Loos, in a peaceful residence, a water leak from the common parts damages Mrs D's flat. She sues the co-owners' syndicate for damages. The syndic, without waiting for the green light from the general meeting, instructs a lawyer and disputes the syndicate's liability, while also bringing a third-party claim against the building's insurer. But did he have the right to act in this way? Each owner wonders: can our syndic incur legal costs without our consent? The answer from the Cour de cassation is clear: yes, to defend and to bring a third-party claim, the syndic does not need prior authorisation from the general meeting.

The facts: a story like any other day

In this case, a co-owner, owner of a unit in Tourcoing, suffers water damage originating from the common parts. He sues the co-owners' syndicate before the Tribunal de grande instance of Lille to obtain compensation for his loss. The syndic, without convening a general meeting, entrusts the defence to a lawyer and, in parallel, brings a third-party claim against the co-ownership's insurer. Why this double approach? The syndic considers that the loss is covered by the insurance policy taken out by the syndicate. He therefore wants the insurer to bear any potential awards. But some co-owners challenge this initiative: according to them, the syndic could neither defend nor bring a third-party claim without a prior vote of the general meeting. The Lille court rules in their favour on the third-party claim, but the Douai Court of Appeal partially reverses that judgment. The case goes up to the Cour de cassation.

The reasoning of the court — analysed

The Cour de cassation relies on Article 55 of the Decree of 17 March 1967 (which governs the operation of co-owners' syndicates). This provision states that the syndic cannot take legal action on behalf of the syndicate without having been authorised by a decision of the general meeting. But the court distinguishes two situations: the claim (the syndic who attacks) and the defence (the syndic who defends). For the defence, no prior authorisation is necessary. Why? Because the syndic has a duty to protect the interests of the syndicate without delay. Waiting for a general meeting would risk compromising the syndicate's rights, particularly by missing procedural deadlines (such as the deadline to file submissions or to bring a third-party claim). In this case, the syndic was merely responding to a claim already brought against the syndicate. Moreover, the third-party claim against the insurer is considered an accessory to the defence: it aims to have the insurer bear a potential award. The court clarifies that this third-party claim is not a new action requiring authorisation, but a simple protective measure. The judges therefore reject the co-owners' argument and validate the syndic's approach. This solution is consistent with the prior case law of the Cour de cassation (Civ. 3e, 10 March 2016, No. 14-29.094), which had already accepted that the syndic may defend without authorisation.

What this changes for you — concretely

For co-owners, this decision means that your syndic can react quickly in the event of a dispute without consulting you. Concretely, if a third party (neighbour, tenant, company) sues the syndicate, the syndic can instruct a lawyer and incur legal costs without waiting for a general meeting. He will, however, have to inform you at the next meeting and you can then discuss how to proceed. For landlord owners, if your tenant suffers damage attributable to the common parts, the syndic will be able to defend the co-ownership without your vote. In Tourcoing, a concrete example: a loss of €8,000 in repairs, with legal fees of €2,500. Without this decision, the syndic would have had to convene a meeting, delaying the defence by several months, with the risk of the court entering judgment against the syndicate by default. Now, the defence is immediate. For buyers, check in the minutes of the general meeting whether the syndic has reported on actions taken: this is a legal obligation. Finally, for syndics, this decision gives you room for manoeuvre: you can act quickly, but you must account for your actions. Caution: if you wish to bring a claim (for example, to sue a neighbour for nuisance), authorisation from the general meeting remains mandatory.

Four tips to avoid this type of dispute

• Draft a precise syndic contract: include a clause authorising the syndic to incur legal costs for the defence of the syndicate up to a certain amount (for example, €5,000) without a prior vote. This avoids any challenge.
• Require a litigation activity report at each general meeting: the syndic must detail the actions taken, costs incurred and results obtained. If this report is missing, ask questions.
• Check the co-ownership's insurance cover: a good 'legal protection' policy may reimburse defence costs. Ensure the policy covers defence actions and third-party claims.
• If in doubt, consult a specialist lawyer before the syndic acts. A simple 30-minute consultation can clarify the syndic's powers and avoid internal conflict.

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Going deeper: related case law and developments

This decision is part of a jurisprudential trend favourable to the syndic's freedom of action for the defence of the syndicate. Already, in a judgment of 10 March 2016 (No. 14-29.094), the Cour de cassation had held that the syndic could appeal without authorisation. More recently, the same chamber extended this logic to third-party claims (Civ. 3e, 9 July 2020, No. 19-15.552). However, for claims (attacks), authorisation remains required, except in cases of proven urgency. This distinction is now well established. For the future, we can expect the court to further clarify the contours of this exception: for example, could a counterclaim (a claim made by the syndicate in the context of the defence) be assimilated to a defence? The question remains open.

In practice: what to do

What to do if you are a co-owner and the syndic takes legal action without your consent:

1. Check whether the action is a defence or an attack. If it is a defence, the syndic has the right to act.
2. Ask the syndic to provide you with the procedural documents (writ, submissions).
3. Ensure that the syndic will report to the next general meeting. If not planned, demand an update.
4. If you believe the syndic has exceeded his powers (for example, by incurring excessive costs), you can challenge his management at the general meeting or apply to the judicial court.

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 →