Managing agent without authorisation: legal action can be regularised after judgment

Imagine: you are the owner of a flat in Talence, in a co-ownership of 30 units. Your managing agent brings legal proceedings against a neighbour who has built a terrace encroaching on the common parts. The problem? The general meeting had not voted authorisation to act before the trial. The question that haunts every co-owner: is this action valid? The Court of Cassation ruled in 1985: yes, if authorisation is given before the court of appeal renders its decision. A pragmatic solution that avoids many deadlocks.

The facts: a story that happens every day

In this case, the managing agent of a co-ownership had initiated proceedings against a co-owner without having received prior authorisation from the co-owners' association. The dispute concerned works carried out by that co-owner in his unit, which encroached on the common parts. The Tribunal de grande instance of Bordeaux had given a first judgment, but the managing agent had appealed. In the meantime, the general meeting finally voted a resolution authorising the managing agent to act. The Bordeaux Court of Appeal then declared the action admissible, confirming the initial judgment. The dissatisfied co-owner appealed to the Court of Cassation, arguing that the managing agent did not have the power to act at the time the action was brought. But the Court of Cassation dismissed his appeal, validating the regularisation.

The reasoning of the court — broken down

The judges' reasoning is based on a simple principle: what matters is that the managing agent has the power to bring legal proceedings on the day the court rules. It does not matter that the authorisation was given after the first instance judgment. In short, the Court of Cassation held that the retroactive authorisation covers the managing agent's action, provided it is obtained before the case is decided on appeal. This is not a major development in the law, but a confirmation of procedural flexibility. The legal basis is Article 55 of the Decree of 17 March 1967 (which governs co-ownership), combined with Article 31 of the Code of Civil Procedure (which defines the interest to sue). The judges rejected the co-owner's argument that the managing agent should have had authorisation from the outset. In other words, a formal omission can be remedied.

What this means for you — concretely

For landlord owners, this decision means that the managing agent can react quickly in an emergency, without waiting for a general meeting. Concrete example: in Pessac, in a co-ownership of 50 units, a co-owner installs a swimming pool without authorisation on a common part. The managing agent brings an interim application (urgent procedure) and obtains an order. If the authorisation is only voted afterwards, the action remains valid. For co-owners, this is a guarantee: the managing agent cannot be paralysed by administrative delays. But beware: if authorisation is never given, the action is void. If you are in this situation, you must check that the general meeting has indeed voted the resolution before the closure of the debates on appeal.

Four tips to avoid this type of dispute

• Anticipate urgent actions: as soon as a dispute arises, call an extraordinary general meeting to vote on authorisation. Do not rely on late regularisation.
• Draft a clear resolution: the authorisation must specify the subject of the dispute (for example: “action against Mr X for encroachment on common parts”) and the limits of the mandate given to the managing agent.
• Keep evidence: keep the minutes of the general meeting and the extract from the register of decisions. In case of challenge, you will be able to demonstrate that authorisation was indeed given.
• Consult a lawyer before acting: if you are a managing agent, a lawyer lawyer will help you structure the procedure and obtain the necessary authorisations within the deadlines.

Further exploration: related case law and developments

This 1985 decision is part of consistent case law: the Court of Cassation has already ruled, in a judgment of 13 December 2012 (No. 11-27.819), that authorisation given by the general meeting after the introduction of proceedings but before the appeal judgment is valid. On the other hand, if authorisation is given after the closure of the debates on appeal, the action is inadmissible. The courts' trend is therefore towards tolerance, but with a strict time limit. For the future, this case law should remain stable, as it meets a practical need: allowing managing agents to act quickly without being hindered by formalities.

Summary and next steps

FAQ:

• Can a managing agent act without prior authorisation? Yes, provided that authorisation is given before the court of appeal's decision.
• What if authorisation is never given? The action is then inadmissible. Either start a new procedure after obtaining authorisation, or try mediation.
• What are the time limits? Authorisation must be voted before the closure of the debates on appeal. In practice, allow 2 to 4 months to call a general meeting.
• Can I challenge a managing agent's action? Yes, if authorisation was not given in time. You can raise inadmissibility before the judge.
• Can the managing agent act alone in emergencies? Yes, but he must obtain subsequent ratification from the general meeting.

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 →