Provisional Managing Agent Appointed by the By-Laws: Can It Be Changed Before the First General Meeting?

Imagine: you have just bought a new apartment in Bordeaux, in a development still under construction. The developer sold you the property off-plan (VEFA - vente en l'état futur d'achèvement">VEFA - vente en l'état futur d'achèvement). You sign the sale deed, and in that document, a clause requires you to mandate the developer to appoint a provisional professional managing agent. A few months later, you receive the notices: a first general meeting is to elect the permanent managing agent. But the provisional managing agent has already been appointed by the developer, without the co-owners having a say. Is this legal?

The Court of Cassation ruled on this question in a judgment of 27 March 2013 (No. 12-13.328). It clearly states: if the by-laws appoint a provisional managing agent before the first general meeting, that appointment can only be changed by the general meeting itself, convened by that managing agent. In short, the developer cannot, by a clause in the sale deed, substitute itself for the will of the co-owners. In other words, the clause is ineffective. What few people know is that this decision protects buyers against potential abuses.

But what exactly does this change for you, as a property owner in Bordeaux or elsewhere? And if you are a developer or managing agent, how should you react? Let us delve into the details of this case, which pitted co-owners of a development in Langon against their developer.

The facts: a story that happens every day

Mr. X and Ms. Y are owners of units in a condominium located in Langon, Gironde. The developer, Proimo, sold the units off-plan. The by-laws, established on 30 July 2003, appointed Proimo as provisional managing agent until the first general meeting, which would be responsible for appointing the permanent managing agent. So far, nothing unusual: this is common practice in condominiums under construction.

However, in the individual sale deeds, a clause was inserted: "The buyer mandates Proimo to appoint a provisional professional managing agent, who shall have full powers to proceed, on behalf of the buyer, with the verification of the completion of the common parts." Pursuant to this clause, Proimo appointed a professional managing agent (Syndic 33) before the first general meeting. The co-owners, dissatisfied, challenged this appointment, arguing that it violated the by-laws and their rights.

The case was brought before the Tribunal de Grande Instance of Bordeaux, then the Bordeaux Court of Appeal, and finally the Court of Cassation. The co-owners won at first instance and on appeal, but the developer appealed. The Court of Cassation dismissed the appeal, confirming that the clause was ineffective. The judges' reasoning: the by-laws are a contract binding all co-owners; their modification can only occur by a decision of the general meeting, not by an individual clause in a sale deed. In short, the developer cannot circumvent the rule.

The court's reasoning — dissected

The Court of Cassation relies on Article 1134 of the Civil Code (now Article 1103), which provides that legally formed agreements stand as law to those who have made them. In other words, the by-laws, signed by all co-owners, are binding on all. They provide that the provisional managing agent is appointed until the first general meeting, and that it is this meeting that must elect the permanent managing agent. Any modification of this appointment can therefore only result from a decision of the general meeting, not from an individual clause.

The Court dismisses the developer's argument that the clause in the sale deed constituted a mandate given by each buyer to appoint a provisional managing agent. The judges consider that this mandate is contrary to the by-laws, which are of a contractual public order nature. Indeed, the by-laws are a document that governs relations between all co-owners; it cannot be modified by particular agreements between a developer and a buyer. This is a matter of protecting co-owners: preventing the developer, who is the sole master of the game before the first general meeting, from imposing a managing agent of its choice without control.

What few people know is that this decision is part of a consistent line of Court of Cassation case law aimed at protecting co-owners against abusive clauses in off-plan sales. undefined, I have encountered cases where developers tried to impose friendly managing agents for periods exceeding the legal provisional mandate. Here, the Court recalls that the first general meeting is the key moment when co-owners regain control.

What this changes for you — concretely

For you, as an owner of a unit in a new condominium in Bordeaux or elsewhere, this decision is a protection. If your by-laws appoint a provisional managing agent (often the developer itself or a related company), no clause in your sale deed can allow the developer to appoint another managing agent on your behalf. Only the general meeting of co-owners, convened by the provisional managing agent appointed by the by-laws, can decide to replace it. undefined you can challenge any unilateral appointment by the developer.

Let us take a concrete example: in Langon, a development of 30 units. The developer appoints a professional managing agent, charging €5,000 per year, whereas the co-owners believe they can obtain a rate of €3,500. Thanks to this judgment, they can require that the first general meeting be held with the initial provisional managing agent (the developer) and vote for another managing agent. However, note: if the by-laws already appoint a professional managing agent as provisional managing agent (which is rare), then that managing agent must convene the meeting. In any case, the developer cannot short-circuit the by-laws.

If you are an off-plan buyer, read your by-laws carefully. If they appoint a provisional managing agent, any contrary clause in the sale deed is void. You can refuse to sign a deed containing such a clause, or challenge it afterwards. If you are a managing agent or developer, this decision requires you to scrupulously respect the by-laws: do not attempt to appoint a managing agent by a clause in the sale deed, as nullity may result.

Four tips to avoid this type of dispute

• Check the by-laws before signing the sale deed. Look at who is appointed as provisional managing agent and until when. If a clause in the sale deed gives you a mandate to the developer to appoint another managing agent, ask for its removal before signing.
• Do not sign minutes of a first general meeting that was convened by a managing agent not appointed by the by-laws. If the developer has appointed a professional managing agent via a clause in the sale deed, that appointment is ineffective. Require that the notice come from the provisional managing agent provided for by the by-laws.
• Keep all documents: by-laws, sale deed, correspondence. In the event of a dispute, these documents will be essential to prove that the clause is contrary to the by-laws.
• Consult a lawyer specialising in property law at the first signs of conflict. In Bordeaux, a lawyer can help you challenge an irregular appointment before the Tribunal Judiciaire. The cost of legal action is often less than the additional management costs of an imposed managing agent.

Further reading: related case law and developments

This Court of Cassation decision confirms earlier case law. In particular, a judgment of 11 December 2008 (No. 07-21.192) had already held that the appointment of a managing agent by the by-laws can only be changed by the general meeting. The Court reaffirms this principle forcefully. However, a more recent judgment of 14 November 2019 (No. 18-22.044) clarified that if the by-laws do not appoint any provisional managing agent, the developer may appoint one provisionally, until the first general meeting. But as soon as the by-laws appoint one, that one prevails.

The trend of the courts is therefore clear: to protect co-owners against abuses by developers. For the future, one can expect judges to continue to sanction any clause that attempts to circumvent the by-laws. If you are a co-owner, this case law is your shield.

Checklist before acting

• Do I have by-laws that appoint a provisional managing agent? Yes: you are protected. No: the developer may appoint one provisionally.
• Does my sale deed contain a clause giving the developer a mandate to appoint a managing agent? If so, this clause is likely void. Consult a lawyer.
• Was the first general meeting convened by a managing agent other than the one appointed by the by-laws? If so, the notice is irregular. You can request annulment of the decisions taken.
• What are my remedies? Seise the Tribunal Judiciaire of Bordeaux to have the nullity of the clause and/or the appointment of the managing agent declared. Time limit: 5 years from the signature of the sale deed.
• What cost? Legal action may cost between €1,500 and €5,000 in legal fees, but costs may be awarded against the developer if you win.

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