Syndic of a Co-ownership: Authorisation to Take Legal Action Must Be Voted at a General Meeting

You live in Bischheim, in a quiet co-ownership, when suddenly a water leak damages the facade. The syndic announces that he is going to "sue the builder in court." You approve, relieved. But a few months later, the court declares the action inadmissible: the syndic did not have the authority to act. How is this possible?

Hundreds of co-owners ask this question every year. Can the syndic, elected to manage the building, decide alone to go to court? The answer is no, and the Court of Cassation forcefully reminded this in a judgment of 31 January 1996 (no. 93-19.421).

This decision, still relevant today, sets a golden rule: the authorisation to take legal action given to the syndic must result from an express vote of the general meeting. A mere agreement given to a request for repair does not constitute an authorisation. Analysis.

The facts: a story like many that happen every day

Imagine a co-ownership in Lingolsheim, in the Bas-Rhin. Defects affect the common parts: infiltration, cracks. The co-ownership council and the syndic agree to seek compensation from the builder (the SCIC) and its insurer. The syndic, thinking he is doing the right thing, initiates legal proceedings in the name of the co-ownership.

But the general meeting had only voted on a resolution "authorising the syndic to take all steps with the builder to obtain compensation for the defects." Not a word about legal action. The syndic went to court, won at first instance, and then on appeal. The Colmar Court of Appeal held the action admissible, considering that the authorisation to act necessarily implied the power to take legal proceedings.

The SCIC and its insurer then appealed to the Court of Cassation. Their argument: the syndic exceeded his powers. The general meeting had not explicitly voted for legal action, only for an amicable approach.

The reasoning of the court — analysed

The Court of Cassation quashed the appeal judgment. It relies on Article 55 of the Decree of 17 March 1967 (now codified in Article 18 of the Law of 10 July 1965): the syndic represents the co-ownership in court, but he can only act on express mandate of the general meeting. In other words, the vote must clearly mention the words "legal action" or "lawsuit." A vote for "seek compensation" or "take steps" is not enough.

The lower courts had made an error by implying an authorisation. The high court reminds that representation in court is a serious act, which financially commits the co-ownership (lawyer's fees, costs, risk of being ordered to pay costs). It cannot be presumed.

This is neither a change nor a reversal: it is a confirmation of a constant principle. As early as 1984, the Court of Cassation had ruled in the same sense (Civ. 3e, 10 October 1984). But the 1996 judgment has the merit of deciding a typical case where the syndic confuses an amicable claim and a judicial action.

Good to know: legal action covers both claiming and defending. If a co-ownership is sued, the syndic must also obtain authorisation to defend, except in urgent cases (imminent peril, Decree of 17 March 1967, art. 55 al. 2).

What this changes for you — concretely

This decision has practical consequences for all actors in a co-ownership.

For the co-owner: you must ensure that the general meeting resolutions are drafted precisely. A vague vote can cause everything to fail. Example: in Lingolsheim, if your syndic initiates a lawsuit without an express mandate, you risk having to reimburse the opponent's legal costs from your own funds, because the action will be inadmissible. That could be several thousand euros charged to the co-ownership.

For the syndic: do not settle for a "yes" in principle. Have a specific resolution placed on the agenda: "Authorisation given to the syndic to take legal action against [opposing party] before the competent court, and to choose a lawyer." If an emergency arises between two meetings, call an extraordinary general meeting (15-day notice) or use the urgent interim procedure (référé d'heure à heure) by justifying the urgency.

For the tenant: you are not directly concerned, but if your landlord is in a co-ownership, court decisions may affect the service charges (works, repairs). Stay attentive.

undefined, I have encountered cases where a co-ownership in Bischheim lost a latent defects claim because the syndic did not have the required authorisation. Result: €15,000 in unnecessary legal costs, and the co-owners had to vote for a new meeting to restart the procedure. A waste of time and money.

Four tips to avoid this type of dispute

• Draft clear resolutions: during the general meeting, have a resolution voted that explicitly mentions "legal action" and the name of the opposing party. Avoid vague terms like "all necessary steps."
• Keep the minutes: the general meeting minutes are proof of the mandate. Check that they are signed and certified as true. In case of litigation, they will be your shield.
• Anticipate emergencies: if a loss requires swift action, the syndic can apply to the interim relief judge without prior authorisation in case of urgency (Art. 55 Decree 1967). But he must then convene a general meeting to confirm the main action.
• Consult a lawyer before acting: before initiating proceedings, ask a lawyer lawyer to check that the mandate is valid. A simple 30-minute exchange can avoid a rejection for lack of authority.

Further reading: related case law and developments

The 1996 judgment is part of a consistent line. Already in 1984 (Civ. 3e, 10 October 1984, no. 82-17.029), the Court of Cassation had ruled that "the syndic cannot take legal action without authorisation from the general meeting, except in urgent cases." More recently, a judgment of 8 September 2016 (no. 15-19.607) specified that authorisation must be given for each proceeding. A general vote authorising the syndic to take legal action for all future disputes is void.

The trend is towards increased control: judges are becoming stricter on the form of resolutions. A simple vote to "give power to the syndic" is considered insufficient if the subject of the dispute is not specified.

For the future, we can expect that case law will also require that the amount of legal costs be voted on, or at least a cap. In the meantime, the rule is simple: no express mandate, no valid lawsuit.

What you absolutely must remember

FAQ:

• Can the syndic take interim relief proceedings without authorisation? Yes, in case of urgency (imminent peril) and subject to informing the next general meeting.
• What to do if the syndic has already acted without a mandate? The action will likely be inadmissible. Call a general meeting to ratify the action retrospectively (but case law is divided on retroactive effect).
• Can I challenge a legal action brought by the syndic? Yes, any co-owner can ask the court to declare the action inadmissible for lack of authority of the syndic.
• What are the financial risks? In case of inadmissibility, the co-ownership may be ordered to pay the opponent's legal costs (Article 700 of the Code of Civil Procedure), often several thousand euros.
• Do I need a lawyer to draft the resolution? It is not mandatory, but strongly recommended to avoid formal defects.

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 →