Provisional managing agent appointed in the by-laws: can he be removed without a general meeting?

Imagine the scene: you have just bought a flat in a small co-ownership in Lyon, Brotteaux district. You receive the by-laws, and there, surprise: a provisional managing agent is appointed. The problem is that this managing agent has not convened any general meeting for months and refuses to present his accounts. What can you do? Take the matter to court? But which court, and how?

This question was put to the French Supreme Court by a co-owner in 1986. And the answer is not so simple. The ruling of 2 July 1986 (no. 85-12.513) reminds us of a fundamental rule: even if a provisional managing agent is appointed in the by-laws, the judge cannot remove him without adversarial proceedings. In other words, a court decision cannot be obtained without the other party having been able to explain their side.

But then, how do you break the deadlock? Do you have to wait for the first general meeting? Or can you act more quickly? This article dissects the ruling and gives you practical keys to managing this type of situation, whether you are a co-owner in Lyon, Bron or elsewhere.

The facts: a story that happens every day

Mr. X, owner of a unit in a co-ownership in Bron (in the Lyon metropolitan area), finds himself faced with a provisional managing agent appointed directly in the by-laws. This managing agent, appointed before the first general meeting, seems to have forgotten his obligations: no general meeting convened, no report, no presentation of accounts. In short, opaque management that frustrates the co-owners.

Mr. X decides to react. Rather than waiting for the general meeting (which never comes), he petitions the president of the High Court (tribunal de grande instance, TGI) by way of an application for the appointment of a provisional administrator. His request: that the judge appoint a third party to manage the co-ownership in place of the defaulting managing agent. But note: the application is made in a non-adversarial form, i.e. without the managing agent being informed or heard.

The provisional managing agent challenges this procedure. He argues that the judge cannot rule without hearing him, because the appointment of a managing agent by the by-laws is an act that binds the community. The case goes up to the French Supreme Court, which must decide: can a co-owner obtain by way of interim proceedings (référé) the appointment of a provisional administrator, without adversarial proceedings, against a managing agent appointed in the by-laws?

The reasoning of the court — dissected

The French Supreme Court dismisses Mr. X's appeal and upholds the decision of the court of appeal. Its reasoning is simple but fundamental: the provisional managing agent, although appointed in the by-laws, is an organ of the co-ownership. He has rights and obligations. The complaint that he does not convene a general meeting and does not present his accounts is serious, but it does not justify overriding the principle of adversarial proceedings.

Specifically, the Court recalls that Article 17 of the Law of 10 July 1965 (law on co-ownership) provides that the managing agent is elected by the general meeting of co-owners. However, here the managing agent was appointed by the by-laws, which is an exception permitted by law for the period prior to the first general meeting. But this exception does not remove his status as managing agent. He can therefore be challenged, but only by adversarial proceedings (i.e. by suing him in court, not by a simple application).

In other words, the judge cannot appoint a provisional administrator without hearing the managing agent. The application must be examined in the presence of both parties. What few people know is that this rule applies even if the managing agent is clearly in default. The adversarial principle (the right of each party to be heard) is a fundamental principle of civil procedure, set out in Article 14 of the Code of Civil Procedure.

In this case, the Court validates the reasoning of the court of appeal which had held that Mr. X's application had to be examined in adversarial proceedings. It does not rule on the merits (did the managing agent really fail?), but only on the form: the unilateral application is not the right route.

What this changes for you — practically

This decision has important practical implications for all co-owners, but also for managing agents and real estate professionals.

For co-owners: If you are faced with an inactive provisional managing agent, you cannot ask the judge to replace him by a simple letter or application without notifying him. You must sue him in court, which means respecting adversarial proceedings. Concretely, this means that you will have to instruct a lawyer and initiate a standard procedure (summons before the president of the TGI in interim proceedings). Timeframes: allow 2 to 3 months for a hearing, and 1 to 2 additional months for the judgment. Cost: between €1,500 and €3,000 depending on complexity. Example: in Bron, co-ownership of 10 units, the provisional managing agent no longer responds. The co-owners must act together, but respecting the procedure.

For managing agents: This decision protects you against abusive procedures. A dissatisfied co-owner cannot remove you without hearing you. On the other hand, if you neglect your obligations (no meeting, no accounts), you risk legal action that will result in your replacement. So be rigorous.

For purchasers: Before buying, check the by-laws. If a provisional managing agent is appointed, enquire about his mandate and actions. A provisional managing agent may remain in place until the first general meeting, but that meeting must be convened within a reasonable time (generally one year after the creation of the co-ownership).

Four tips to avoid this type of dispute

• Check the by-laws before buying. If a provisional managing agent is named, ask for information about his actions and the planned date of the first general meeting. A provisional managing agent should not remain in place indefinitely.
• Demand a general meeting within the year following completion. The law requires at least one meeting per year. If the provisional managing agent does not convene it, put him on formal notice by registered letter with acknowledgement of receipt.
• Gather the co-owners. If there are several of you in the same situation, act collectively. A joint action is stronger and shares the costs. In interim proceedings, the judge may appoint a provisional administrator if the majority of co-owners request it.
• Consult a lawyer before starting proceedings. A simple application, as Mr. X attempted, can be rejected for procedural defect. A lawyer will advise you on the appropriate procedural route: interim proceedings, summons, or mediation.

Further reading: related case law and developments

This 1986 decision is part of a consistent line of case law on adversarial proceedings and the provisional managing agent. An earlier French Supreme Court ruling of 19 November 1981 (no. 80-14.123) had already held that the appointment of a managing agent in the by-laws is not irrevocable, but that his removal must respect the majority rules of the general meeting.

More recently, the French Supreme Court recalled in a ruling of 13 September 2018 (no. 17-22.456) that the provisional managing agent must convene the first general meeting within a reasonable time, failing which any co-owner may apply to the court to have a provisional administrator appointed, but always by way of adversarial proceedings.

The trend is therefore towards strengthening judicial control over provisional managing agents, but never at the expense of the adversarial principle. In the future, judges can be expected to be stricter about the obligations of the provisional managing agent, particularly regarding the convening of meetings and the rendering of accounts.

In practice: what to do

FAQ:

1. What if the provisional managing agent does not convene the general meeting? Send him a formal notice by registered letter with AR. If nothing happens within 2 months, consult a lawyer to start interim proceedings. The judge may order the convening or appoint a provisional administrator.

2. Can I remove the provisional managing agent by a general meeting? Yes, but you must wait for the first general meeting. If it is not convened, you are stuck. The solution is to ask the court to order the convening.

3. What is the cost of proceedings to replace a provisional managing agent? Allow between €1,500 and €3,000 in lawyer's fees, plus court costs (summons, bailiff). If there are several co-owners, the costs are shared.

4. What are the timeframes for obtaining a decision? In interim proceedings, the hearing takes place within 2 to 3 months after the summons. The judgment is given within the following month. If the managing agent appeals, allow an additional 6 to 12 months.

5. Can the provisional managing agent remain in place indefinitely? No, the law requires an annual general meeting. If the managing agent does not convene it, he is at fault. But he can only be replaced by a court decision or a general meeting.

Checklist: what to do if your provisional managing agent is in default

1. Gather evidence: absence of meetings, absence of accounts, unanswered letters.
2. Put the managing agent on formal notice by registered letter with AR, with a copy to the other co-owners.
3. Consult a lawyer specialised in property law.
4. Bring together the co-owners to share the costs.
5. Initiate interim proceedings before the president of the TGI, by way of an adversarial summons.
6. Ask the judge to appoint a provisional administrator or to order the convening of a 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 →