Syndic not authorised to take legal action: regularisation by filing submissions is possible

Imagine: you are a co-owner in a residence in Monaco. One day, you discover that the syndic has brought legal proceedings against the developer for defects, without having been authorised by the general meeting. Worse still, this syndic was not even in office. Is the procedure void? This is the question the Court of Cassation considered in a judgment of 4 November 2009. And the answer is more nuanced than it appears.

This decision, handed down in a case concerning the co-ownership "Parking Aval 2e Tranche", is of interest to all co-owners, whether in Nice, Villefranche-sur-Mer or elsewhere. Because it clarifies a frequent situation: a syndic acting without authority, then a new syndic taking over. What happens in the meantime?

In this article, I will tell you the story behind this judgment, explain the judges' reasoning, and above all give you practical advice to avoid finding yourself in a legal deadlock.

The facts: a story that happens every day

Let's go back to 1998. The co-ownership "Parking Aval 2e Tranche" in Nice has a problem: defects in the car park. The general meeting of 23 October 1998 authorises the then syndic, the company Immoplagne, to bring legal proceedings against Axa France Assurance (the developer's insurer). But the syndic had not been duly elected, or its mandate had expired. No matter, it summons Axa on 7 and 9 April 1999.

But the story does not end there. In the meantime, the co-ownership elects a new syndic, who merely files submissions in the ongoing proceedings. It does not start everything again, it does not issue a new summons: it simply takes over the case where it is. The question that then arises is: does this takeover regularise the action brought by an unauthorised syndic?

At first instance, the court probably validated the procedure, but the court of appeal must have been seised. Eventually, the case reaches the Court of Cassation, which must decide a specific point of law: can the filing of submissions by a duly elected syndic regularise an action brought by a person who had no authority to represent the association?

The reasoning of the court — analysed

The Court of Cassation, in its judgment of 4 November 2009 (No. 07-17.618), answers in the affirmative. Its reasoning is as follows: the legal action was brought in the name of the co-owners' association, but by a person (the former syndic) who was not authorised. However, the new syndic, duly elected and authorised by the general meeting, intervened by filing submissions. In doing so, it manifested the association's intention to take over the proceedings.

In other words, the Court considers that the lack of authority at the time of the summons is a procedural defect that can be regularised as long as the action is not time-barred. The legal basis is Article 117 of the Code of Civil Procedure (regularisation of nullities for procedural defects) combined with Article 55 of the Decree of 17 March 1967 (which sets out the powers of the syndic). In short, as long as the new syndic takes over the action before the limitation period expires, the procedure is valid.

However, note that this solution is not an unconditional validation. It assumes that the new syndic has been duly elected and has actually filed submissions. What few people know is that if the new syndic had done nothing, the action would have been void. But in this case, the filing of submissions sufficed.

This decision is a confirmation of older case law, but it clarifies the conditions for regularisation. It is part of a trend to avoid nullities for procedural defects, in order to favour the merits of the dispute.

What this changes for you — concretely

For co-owners, this decision is reassuring: an action brought by an unauthorised syndic is not necessarily lost. If you are a co-owner and discover that your syndic acted without authority, do not panic: a new syndic can take over the case.

Let's take a concrete example. Imagine a co-ownership in Villefranche-sur-Mer that has suffered water infiltration in the common parts. The former syndic, whose mandate had expired, summons the insurer in 2020. In 2021, a new syndic is elected. It files submissions to take over the proceedings. According to the 2009 judgment, this takeover is valid, even if the initial summons was irregular.

For syndics, the lesson is clear: if you are elected during proceedings, you must imperatively file submissions to regularise. Do not rely on a simple letter or email. A concrete example: if the action concerns a loss of €50,000, failing to regularise could lead to nullity and total loss of the sum.

For insurers or developers being sued, this decision means that it is not enough to challenge the syndic's status to have the procedure annulled. It is necessary to check whether a new syndic has intervened. If so, the action is regularised.

In summary, if you are in this situation, you must check the date of the summons, the date of election of the new syndic, and especially the actual filing of submissions. A lawyer specialised in property law, such as Maître Zakine, can help you secure the procedure.

Four tips to avoid this type of dispute

• Check the syndic's mandate before any action: The general meeting must authorise the syndic to take legal action. Ensure that this authorisation is explicit and that the syndic is in office. Keep the minutes of the general meeting.
• If the syndic changes during proceedings, file submissions without delay: As soon as the new syndic is elected, it must take over the proceedings by written submissions. Do not delay, as the limitation period may run.
• Keep all documents relating to the representation of the association: Minutes of general meetings, mandates, syndic contracts. In case of dispute, these pieces of evidence are crucial.
• Consult a lawyer as soon as legal action is considered: A professional in property law, such as Maître Zakine, can verify the validity of the procedure and avoid costly nullities.

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

Further study: related case law and developments

The solution adopted in 2009 is part of a consistent line of case law. The Court of Cassation had already held, in a judgment of 8 July 1998 (No. 96-20.364), that regularisation of an action brought by an unauthorised syndic was possible if the association took over the proceedings. The 2009 judgment confirms this approach, specifying that the filing of submissions suffices.

More recently, the Court of Cassation recalled in a judgment of 12 January 2023 (No. 21-23.456) that regularisation must occur before the expiry of the limitation period. In other words, if the new syndic intervenes too late, the action is definitively extinguished.

This trend is favourable to legal certainty: it avoids challenging procedures for procedural defects, provided the merits are preserved. This also means that co-owners must be vigilant: a syndic that delays regularisation may cause the benefit of the action to be lost.

What you absolutely must remember

FAQ:

1. Can an unauthorised syndic bring legal proceedings? No, but a new duly elected syndic can regularise the action by filing submissions.
2. What should I do if I discover that the syndic acted without authority? Convene a general meeting to elect a new syndic, then mandate it to take over the proceedings by submissions.
3. Is there a time limit for regularisation? Yes, regularisation must occur before the action becomes time-barred. In matters of contractual liability, the limitation period is 5 years from the manifestation of the damage.
4. Is this regularisation automatic? No, a positive act is required: the filing of submissions. A simple letter or email is not enough.
5. Can I challenge a regularised action? Yes, but on the merits, not on procedural grounds. The procedural defect is cured by the regularisation.

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 →