Trustee without authority: nullity of the action in co-ownership, who can invoke it?

Imagine: you are a co-owner of a building in Cherbourg-en-Cotentin, near the port. Your trustee brings legal proceedings against a contractor who has carried out work poorly. But the trustee had not been authorised by the general meeting to act. The contractor points this out, and the judge annuls the action. Problem: what if another defendant, such as the SCI (property investment company) owning the common parts, also wanted to rely on this nullity? Can it do so? This is precisely the question decided by the Court of Cassation on 12 May 1993.

This decision, often overlooked, is nevertheless essential for understanding the procedural rules in co-ownership. It answers a simple question: who can complain that the trustee did not have the authority to bring legal proceedings? The answer is not "everyone", but only those who have a direct interest in doing so. In other words, if you are a contractor accused, you can invoke this lack of authority to have the action against you annulled. But if you are another defendant, you cannot rely on it to protect a third party.

Behind this legal technicality lies a rule of common sense: each party defends its own interests. The nullity for lack of authority is a substantive exception (a defence relating to the validity of the act) which benefits only the person who invokes it. The Court of Cassation forcefully reiterated this in this judgment, upholding the reasoning of the Court of Appeal which treated two contractors differently even though they were in the same situation.

The facts: a story like any other

The case begins in Paris, but could have taken place in Coutances or Cherbourg-en-Cotentin. A co-owners' association, dissatisfied with work carried out by several contractors, decides to sue a property investment company (SCI) and two companies, including the company OTH. The problem? The trustee had not received express authorisation from the general meeting to bring this action. This is a classic substantive irregularity, provided for in Article 117 of the Code of Civil Procedure (which lists the causes of nullity for substantive defects).

Before the Court of Appeal, the company OTH raises this irregularity and requests the annulment of the action against it. The other contractor says nothing on this point. The Court of Appeal grants OTH's request: the action is annulled in respect of it. But it rejects the same request made by the SCI, considering that the nullity only has effect for the person who invokes it. Result: the association obtains judgment against the SCI and the other contractor, but not against OTH.

The SCI appeals to the Court of Cassation. It argues that the substantive irregularity should benefit all defendants, because the action is null in its entirety. But the Court of Cassation dismisses its appeal. It approves the Court of Appeal: "if each defendant is entitled to rely on the substantive irregularity arising from the lack of authority of the trustee to bring legal proceedings, the Court of Appeal, which, after noting that only one contractor was relying on the irregularity, correctly held that it only has effect in respect of the person who invokes it, legally justified its decision to grant the claims of a co-owners' association against a property investment company while dismissing its claim against one contractor and granting it against another."

The reasoning of the court — dissected

The Court of Cassation relies on Articles 117 and 118 of the Code of Civil Procedure. Article 117 states that substantive irregularities include, in particular, the lack of authority of a legal person (such as the trustee). Article 118 provides that these nullities may be raised by any person who has an interest in doing so, but they are not automatic: the party invoking them must still suffer prejudice. In clear terms, nullity is not an automatic sanction: it depends on the interest of the person raising it.

In this case, the Court of Cassation considered that the substantive irregularity does not affect the existence of the action itself, but only its validity in respect of the person who relies on it. This is a subtle but crucial distinction. In other words, the trustee's lack of authority does not result in the nullity of the entire proceedings, but only the annulment of the acts against the party raising the exception. The other defendants, who have not invoked it, cannot benefit from it.

What few people know is that this solution is based on a logic of the personality of nullities: each party defends its own rights. If a defendant does not complain about the lack of authority, it implicitly accepts the regularity of the action in respect of it. The Court of Cassation thus rejected the argument of the SCI which wanted to benefit from the exception raised by OTH. In doing so, it reminded that the judge cannot raise a substantive nullity of his own motion (except in legal exceptions), and that each party must look after its own interests.

However, note: this decision does not call into question the principle that the trustee must be authorised by the general meeting to bring legal proceedings. If none of the parties raises the irregularity, the action may succeed. But as soon as a defendant does so, the action is annulled in respect of it. This is a sword of Damocles for poorly advised co-owners' associations.

What this changes for you — concretely

If you are a co-owner in Cherbourg-en-Cotentin or elsewhere, this decision reminds you of the importance of checking the trustee's powers before any legal action. Concretely, before suing a contractor or a neighbour, the co-owners' council must ensure that the general meeting has voted an express authorisation, specifying the subject of the dispute and the parties involved. Failing this, the action may be annulled at the request of each defendant who wishes to do so.

For a contractor like those in Coutances, this decision is a weapon: if you are sued by an association, immediately check whether the trustee had the authority to act. If not, you can request the annulment of the action against you, and the association will have to start over, with the additional costs that this entails. For example, a dispute over 10,000€ of poorly done work could be blocked for months while the general meeting votes on the authorisation.

For an SCI or another co-owner defendant, the lesson is different: you cannot rely on another defendant to raise the irregularity on your behalf. If you want to rely on the lack of authority, you must do it yourself. undefined, I have come across cases where an SCI owning units missed this opportunity, and ended up being jointly and severally liable with the faulty contractor, when it could have been released if it had raised the exception.

Finally, for property professionals (agents, notaries, property managers), this case law imposes increased vigilance regarding mandates. A trustee who acts without authority may incur professional liability. And if the association is unsuccessful, the co-owners might seek compensation from the trustee for the damage suffered.

Four tips to avoid this type of dispute

• Check the trustee's powers before any action: Before initiating proceedings, ask the trustee to provide you with the minutes of the general meeting authorising it to act. If it is not clear, do not commence the action.
• If you are a defendant, examine the trustee's authorisation: Upon receipt of the claim, check whether the trustee had an express mandate. If in doubt, raise the irregularity in your first submissions, otherwise it will be deemed waived.
• Have a broad but precise authorisation voted: At the general meeting, the trustee must request authorisation to "bring legal proceedings against any person responsible for the defects", citing the names of potential defendants. A formulation that is too vague could be challenged.
• Consult a lawyer lawyer before suing: A property lawyer will verify the regularity of the procedure and advise you on the chances of success. In Cherbourg as elsewhere, prevention is better than cure.

Further analysis: related case law and developments

This 1993 decision is part of a consistent line of the Court of Cassation, which distinguishes substantive nullities from procedural nullities. For example, in a judgment of 10 July 1996 (No. 94-18.542), the Court held that the lack of authority of the trustee is a substantive nullity that cannot be cured by subsequent ratification by the general meeting. In other words, even if the general meeting votes authorisation after the fact, this does not regularise the action already commenced. This is a strict rule, which protects defendants against hasty actions.

More recently, the Court of Cassation specified in a judgment of 18 March 2021 (No. 19-22.413) that the trustee must justify an express and specific authorisation for each action. A general authorisation given at the beginning of the mandate is not sufficient. This development reinforces the need for co-owners' associations to properly prepare their general meetings.

In practice, the trend is towards stronger requirements for transparency and precise mandates. The courts are increasingly vigilant about compliance with procedural rules in co-ownership. For defendants, this is an opportunity; for claimants, an additional constraint.

Key points to remember

• Who can invoke the trustee's lack of authority? Each defendant individually, but only on their own behalf. A defendant cannot rely on an exception raised by another.
• What to do if you are sued by an association? Immediately check whether the trustee had an express authorisation from the general meeting. If not, raise the irregularity in your first submissions.
• What are the risks for the trustee? Bringing an action without authority exposes the trustee to liability claims from the association, and even to damages.
• Can it be regularised afterwards? No, according to case law, the authorisation must pre-exist. Subsequent ratification does not cure the nullity.
• What is the practical interest of this decision? It allows a contractor to defend itself alone, without being affected by the attitude of other defendants. It secures the positions of each party.

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 →