Managing Agent Without Authorisation: When Legal Action Is Annulled for Lack of Vote

Picture the scene: you are a co-owner of a building in Metz, rue des Tanneurs. For months, water seepage has been ruining the common parts and the heating works erratically. The general meeting is held, discussions become heated, but finally an agreement seems to emerge: "We leave the managing agent to bring legal proceedings against the builder." The managing agent then initiates an action. Except that a few months later, the court annuls everything: the authorisation of the meeting was not valid. How is this possible? And above all, what can be done to avoid this pitfall?

This decision of the Court of Cassation of 11 January 1995 (No. 93-11.939) answers a crucial question for any co-owners' association: under what conditions can the managing agent bring legal proceedings? In simple terms, is a simple collective "yes", without a formal vote, sufficient? The answer is no. And the consequences can be serious: nullity of the action, wasted costs, and sometimes limitation (time limit to act) which has run in the meantime.

I will break down this decision, explain what it changes in practice, and give you practical advice to avoid finding yourself in this situation. Whether you are in Metz, Sarreguemines or elsewhere, the rules are the same.

The Facts: A Story That Happens Every Day

We are in a co-ownership, somewhere in France – let's say in Sarreguemines, to stick to our territorial anchor. For several years, the building has suffered from defects: water seepage through the roofs and facades, and a faulty communal heating system. The co-owners have had enough. During the general meeting, the managing agent explains the situation and proposes to bring legal proceedings against the developer or builder.

Discussions are heated. Some co-owners want to act, others do not, fearing the costs. Finally, after debates, a majority emerges to say "yes, the managing agent can act". But careful: no vote is formalised on this specific point. The minutes of the meeting merely state that "the meeting agrees that the managing agent should take the necessary actions". Nothing more.

The managing agent, confident, sues the builder before the Tribunal de Grande Instance (TGI) of Metz. The case proceeds, but the builder raises a plea of nullity (a defence aimed at having the action annulled): the managing agent did not have valid authorisation from the general meeting to act. The association replies that the minutes show a collective agreement.

The Metz Court of Appeal rules in favour of the builder: the action is null. The association appeals to the Court of Cassation. The Court of Cassation upholds the appeal decision: a simple verbal agreement or a vague mention in the minutes does not constitute an express and formal authorisation. The managing agent should have obtained a clear vote from the general meeting on the question of whether he could bring legal proceedings, and this vote should have been recorded in the minutes. Failing this, the action is inadmissible.

The Reasoning of the Court — Explained

The Court of Cassation relies on Article 55 of the Decree of 17 March 1967 (the regulatory text governing co-ownership), still in force today. This article provides that "the managing agent cannot bring legal proceedings on behalf of the association without having been authorised by a decision of the general meeting". This rule is a protection for co-owners: the managing agent must not initiate costly actions on his own initiative.

But what is a valid "authorisation"? The Court specifies that it must be express and result from a vote of the general meeting. A simple "agreement" mentioned in the minutes, without a formalised vote, is not sufficient. In other words, the managing agent must submit a question to the agenda, the co-owners vote (simple or absolute majority depending on the nature of the action), and the result is recorded in the minutes with the details of the votes.

In this case, the minutes only referred to a general "agreement", without a vote. The Court concludes that the managing agent had not received a mandate to act. The legal action is therefore null. This is not a mere procedural irregularity (which could be regularised), but a substantive irregularity (which affects the very validity of the action).

What few people know is that this nullity can be raised at any time during the proceedings, and even on appeal. The builder, well advised, therefore had the action annulled even before a judge ruled on the merits of the defects. Result: the association lost time and money, and had to start from scratch – if the limitation period (generally 5 years to bring a claim for contractual liability) had not already expired.

The decision is part of a consistent line of case law: the Court of Cassation ensures that the managing agent does not exceed his powers. It has already held, for example, that the managing agent cannot bring an action without prior authorisation, even if the action is urgent (except in cases of imminent danger, which is very rare).

What This Changes for You — In Practice

For Co-Owners

If you are a co-owner, this decision protects you: the managing agent cannot incur legal costs without your agreement. But it also requires you to be vigilant. During the general meeting, check that questions of legal actions are properly on the agenda and are voted on. Do not settle for a "we agree" at the meeting. Demand a formal vote, with the number of votes for, against and abstentions. If the minutes are vague, request a correction before they become final.

For Managing Agents

You must absolutely obtain express authorisation from the general meeting before suing anyone. Draft a clear resolution: "The general meeting authorises the managing agent to bring any legal action against company X, for the purpose of obtaining compensation for the defects of seepage and heating, and to appoint a lawyer." Have it voted on and record the result in the minutes. Without this, your action will be null, and you could incur personal liability (the managing agent may be ordered to reimburse unnecessary costs).

Concrete Example in Sarreguemines

Let's take a concrete case: a co-ownership of 20 units in Sarreguemines suffers from seepage. The managing agent brings an action without a formal vote. The builder raises the nullity. The court annuls the action after 2 years of proceedings. Lawyer's fees: €5,000. Expert fees: €3,000. All lost. And if the limitation period has expired (5 years from the completion of the works), the association will never be able to act again. The real cost can be tens of thousands of euros in unrepaired works.

If You Are a Buyer

Before buying a unit in a co-ownership, ask for the minutes of the last general meetings. Check if any legal actions are ongoing. If they were initiated without authorisation, they risk being annulled, and the necessary works may remain the responsibility of the co-ownership – therefore yours, through service charges.

Four Tips to Avoid This Type of Dispute

• Include any legal action on the agenda of the general meeting. The managing agent must propose a specific resolution, with the name of the defendant, the subject of the dispute and the estimated amount of costs. The co-owners vote with full knowledge of the facts.
• Require detailed minutes. The minutes must mention the text of the resolution, the number of votes for, against and abstentions, and the result (adopted or rejected). A simple sentence "the meeting gives its agreement" is insufficient.
• Do not rely on verbal agreements. Even if all co-owners present say "yes", without a formalised vote, the authorisation is null. Have a vote, even by a show of hands, and have it recorded.
• Consult a lawyer lawyer before acting. If you are a managing agent or co-owner, a property lawyer will check the validity of the authorisation and advise you on the procedure. In Metz, Maître Zakine can assist you.

Further Analysis: Related Case Law and Developments

This 1995 decision is part of a consistent line. Already in 1992, the Court of Cassation had held that "the managing agent cannot bring legal proceedings without authorisation from the general meeting, except in an emergency" (Civ. 3e, 24 June 1992, No. 90-19.123). More recently, in 2018, it recalled that the authorisation must be specific and cannot be general (Civ. 3e, 22 March 2018, No. 17-13.486).

The trend is therefore towards strengthening formal requirements. Courts are increasingly strict about the regularity of minutes and votes. undefined that managing agents must be very rigorous. For co-owners, this is a security: the managing agent cannot act in your name without your clear agreement.

In the future, it is possible that the law will evolve to simplify so-called "conservatory" actions (to prevent limitation), but for now, the rule remains firm. If you are in a situation where an action is urgent (for example, to interrupt the limitation period), request an urgent authorisation through a general meeting convened under an accelerated procedure, or apply to the interim relief judge for a conservatory measure.

Frequently Asked Questions

1. Is a vote by show of hands valid? Yes, as long as the result is clearly recorded in the minutes. But to avoid any challenge, it is preferable to use a secret ballot or a show of hands with a precise count.
2. What can be done if the managing agent has already initiated an action without authorisation? You can ask the court to declare the nullity of the action. But it is simpler to prevent the managing agent from acting in advance. If the action is already ongoing, the managing agent can try to regularise by convening a general meeting to vote on a retroactive authorisation. However, the nullity may be cured if the defendant does not raise it in due time.
3. Can the managing agent bring interim relief proceedings without authorisation? Yes, because interim relief (emergency procedure) is considered a conservatory measure. But for an action on the merits, authorisation is necessary.
4. What is the time limit to challenge an unauthorised action? The nullity can be raised at any time during the proceedings, as long as a final judgment has not been rendered. In practice, it should be raised as soon as possible, before any defence on the merits.
5. Can I bring an individual legal action if the managing agent refuses? Yes, each co-owner can act individually for the common parts if he has a personal interest (for example, if the seepage affects his unit). However, an individual action is limited and cannot substitute for the action of the association.

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 →