Trustee without authority: when the general meeting authorises the wrong body

Imagine: you own a flat in Montreuil, in a co-ownership of 30 units. For years, water infiltration has been damaging your ceiling. The general meeting (AG) passes a resolution to "authorise the syndic council to take legal action against the builder". The trustee is not mentioned. Yet it is the trustee who sues the builder. The result? The court of appeal declares the action inadmissible: the trustee did not have the power to act because the authorisation had been given only to the syndic council. The Court of Cassation confirmed this in 1991. A decision that may seem technical, but can nullify months of proceedings and thousands of euros in costs. So what can you do to ensure your co-ownership does not end up in this deadlock?

The facts: a story that happens every day

In this case, a co-ownership association (represented by the trustee, Z...) had brought an action for decennial liability (10-year guarantee of builders) against the builder of a building. The technical inspection was carried out by the bureau Véritas. But the general meeting had passed a resolution worded as follows: "authorisation is given to the syndic council to take any legal action against the builders". The trustee, believing he was mandated, sued the builder in his own name. The defendant (the builder) raised a "lack of authority": the trustee had not received authorisation from the AG, as it had been given to the syndic council. In short, the trustee acted without valid mandate. The court of appeal declared the action inadmissible, and the Court of Cassation confirmed. In law, this decision illustrates a fundamental principle: the trustee can only take legal action with express authorisation from the general meeting. And if the authorisation is given to another body (syndic council), the trustee does not have the power to act.

The reasoning of the court — dissected

The Court of Cassation relies on Article 55 of the decree of 17 March 1967 (now codified in Article 18 of the law of 10 July 1965): the trustee is the agent of the co-ownership, but to take legal proceedings (be a party to a lawsuit), he must be authorised by the general meeting. Here, the AG had authorised "the syndic council", not the trustee. However, the syndic council is not a body with legal personality to take legal action: it cannot be a party to the proceedings. Therefore, the authorisation was ineffective. The court of appeal therefore rightly concluded that the trustee lacked authority. The builder, as defendant, was perfectly entitled to raise this preliminary objection (defence that blocks the action without examining the merits). undefined that even if the co-ownership association is right on the merits (construction defects), the proceedings are annulled if the trustee does not have the correct mandate. The Court of Cassation thus reminds that formalism protects the rights of the defence: a defendant should not be sued by a person not authorised to do so. This decision is a classic in co-ownership law, regularly reaffirmed by the courts.

What this means for you — concretely

For co-owners: whenever the AG votes on legal action, check that the resolution clearly designates the trustee (or his representative) as being authorised to act. An ambiguous wording can cause everything to fail. For trustees: do not rush to sue if the authorisation is not clear. An example: in Bobigny, a trustee brought an action against the developer for defects; the AG had voted "authorisation to the syndic council to take all necessary measures". The court declared the action inadmissible, ordering the co-ownership association to pay the costs (legal fees) and to pay €3,000 to the defendant. For defendant builders: this is a formidable defence weapon. If the trustee sues you, immediately request a copy of the AG minutes to verify the authorisation.

Four tips to avoid this type of dispute

• Draft resolutions precisely: at the AG, the resolution should state: "authorises the trustee to take legal action against [name of defendant] for [subject]" — no vague "syndic council".
• Keep AG minutes: the trustee must attach the resolution to the claim to prove his authority. Without this, the action is inadmissible.
• Verify the mandate before suing: the trustee must ensure that the authorisation is express and concerns him. If in doubt, convene a new AG.
• If you are a defendant, request production of the minutes: in the first pleadings, raise the lack of authority if the authorisation is imprecise. You can have the action annulled.

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Further reading: related case law and developments

The Court of Cassation has reaffirmed this principle several times: for example, in a judgment of 9 November 1994 (no. 92-20.811), it held the trustee's action inadmissible when authorised only by the syndic council. More recently, the civil chamber specified that the authorisation must be "special" (Cass. 3e civ., 6 May 2015, no. 14-13.108). Conversely, if the AG authorises the trustee to act "against all responsible parties", that is sufficient. The trend is towards strengthening formalism: judges require a clear and unambiguous authorisation. This protects co-owners against rash actions, but can also block legitimate claims if the wording is clumsy.

Summary and next steps

FAQ:
Q: Can I challenge an action brought by the trustee without authorisation?
A: Yes, you can invoke the trustee's lack of authority. The judge will declare the action inadmissible.
Q: What if I am a co-owner and the AG authorised the syndic council?
A: Ask the syndic council not to act itself, and have a new resolution passed authorising the trustee.
Q: What is the time limit to raise this ground?
A: Before any defence on the merits, in the first pleadings. After that, the preliminary objection is waived.
Q: Can the trustee be personally liable?
A: Yes, if he acts without mandate, he incurs his professional civil liability.

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