Secondary Co-ownership Syndicate: A Deemed Unwritten Clause Does Not Erase the Past

Imagine: you own a flat in Toulouse, in a large co-ownership that decided, thirty years ago, to create secondary syndicates to manage each building. One day, a co-owner challenges the clause in the regulations that allowed this creation. The court agrees: the clause is deemed unwritten. But what becomes of the decisions taken by these secondary syndicates over all those years? The general meetings, the voted works, the collected charges… is all of it void? This is the crucial question that the Court of Cassation answered on 20 May 2009, in a ruling that reassures co-owners in Muret and throughout France.

This decision, little known to the general public, is nevertheless essential for all those who live in co-ownership. It sets out a simple but strong principle: even if a clause is annulled, past acts carried out on its basis remain valid. In other words, the past is not called into question. What few people know is that this solution protects both co-owners and third parties who contracted with the secondary syndicate (companies, suppliers, etc.).

So, how should you react if you are faced with a disputed clause in your co-ownership regulations? And above all, what are your rights if you have already suffered from decisions of a contested secondary syndicate? Let us delve into the details of this landmark ruling.

The facts: a story like many others

The case begins in Toulouse, in a co-ownership located on Avenue d'Italie. For more than thirty years, this co-ownership has been organised into several secondary syndicates, each managing a group of lots. These syndicates were created on the basis of Article 33 of the co-ownership regulations, which provided for this possibility. Throughout these years, they operated normally: general meetings, budget votes, works, collection of charges… Until a SCI (real estate company) and several co-owners, joint owners of certain lots, decided to challenge the validity of Article 33. Their argument? The clause would be contrary to the mandatory provisions of the Law of 10 July 1965 on co-ownership, which strictly regulates the creation of secondary syndicates.

The Tribunal de Grande Instance of Toulouse agreed with them: by judgment of 3 May 2004, it declared Article 33 deemed unwritten. But the question that then arose was the consequences of this nullity on the past acts of the secondary syndicates during the previous thirty years. The claimants wanted everything to be annulled, as if the syndicates had never existed. The Court of Appeal of Toulouse, in a judgment of 25 October 2007, refused this retroactivity: it considered that the abolition of the secondary syndicates only applied for the future. The co-owners and the SCI appealed to the Court of Cassation.

The Court of Cassation, in its judgment of 20 May 2009, dismissed the appeal. It confirmed that 'the abolition of the syndicates, which had acquired from their constitution a legal personality opposable to third parties, only operates for the future.' In other words, the secondary syndicates legally existed for thirty years: their decisions and acts are valid. It is impossible to go back.

The reasoning of the court — explained

To understand this ruling, it is first necessary to recall the legal framework. The Law of 10 July 1965, which governs co-ownership, provides that the co-ownership regulations may establish secondary syndicates (Article 27). However, this power is regulated: it must not infringe the rights of co-owners or the proper management of the building. If a clause in the regulations establishes a secondary syndicate in violation of these principles, it may be declared unwritten by a judge. That is what happened here.

But the Court of Cassation went further. It distinguished between two things: the clause (Article 33) and the secondary syndicate itself, which had acquired a real legal existence. From its creation, the secondary syndicate has legal personality (the ability to act in court, contract, hold a bank account). This personality is opposable to third parties (suppliers, co-owners, banks). Even if the founding clause is annulled, this past existence cannot be erased. The judges refer to 'legal personality opposable to third parties': this means that the acts performed by the secondary syndicate (signing contracts, collecting charges, voting at meetings) are valid for the period during which it existed.

However, this does not mean that anything is permitted. If a co-owner has suffered harm due to the operation of the secondary syndicate (e.g., excessive charges or abusive decisions), he may still claim damages on the basis of Article 1240 of the Civil Code (liability for fault). But the nullity of the clause does not automatically invalidate all past acts. This is a common-sense solution: imagine the chaos if a company that carried out work for the secondary syndicate had to be reimbursed thirty years later, or if the charges collected had to be returned…

What few people know is that this decision is part of a consistent line of case law from the Court of Cassation, which refuses to give retroactive effect to the annulment of clauses in co-ownerships. It protects legal certainty and the stability of contractual relations.

What this changes for you — practically

For a co-owner living in a co-ownership with secondary syndicates, this ruling means that decisions taken by these syndicates are final, unless you challenged them in due time. If you believe that the clause creating the syndicate is illegal, you can seek its annulment, but this will not erase the charges you have paid or the works voted.

Let us take a concrete example in Muret: you own a lot in a development of 50 units, divided into two secondary syndicates (Building A and Building B). The secondary syndicate of Building A voted in 2018 for renovation works costing €50,000, which you paid through your charges. In 2024, you discover that the clause creating this secondary syndicate may be illegal. You can challenge it, but you will not be able to recover the €50,000 already paid. However, for the future, the secondary syndicate will be abolished, and management will be centralised at the main syndicate level.

For a buyer purchasing a lot in a co-ownership with secondary syndicates, this is a point of vigilance: check that the co-ownership regulations comply with the law. If you buy a property in Toulouse, ask your notary to examine the clauses relating to secondary syndicates. If they are contestable, you can seek their annulment, but you will be bound by past decisions.

For a professional (syndic, developer), this ruling provides security: contracts concluded with a secondary syndicate remain valid, even if its constitutive clause is subsequently annulled. You can therefore continue to work with these syndicates without fear of retroactive challenge.

Four tips to avoid this type of dispute

• Check your co-ownership regulations: If you are a co-owner or a syndic, read the clauses relating to secondary syndicates carefully. Ensure they comply with the conditions of Article 27 of the 1965 Law (e.g., the need for separate management for autonomous buildings).
• Do not delay in challenging: If you believe a clause is illegal, act quickly. The nullity of a clause can be sought without delay, but the longer you wait, the harder it will be to challenge past acts. undefined, I have encountered cases where co-owners waited too long and could only obtain annulment for the future.
• Keep all AG minutes and charge receipts: In the event of a dispute, these documents are essential to prove what was decided and paid. They also help demonstrate that the secondary syndicate operated properly and that its legal personality was opposable.
• Consult a specialised lawyer before any action: Legal proceedings to have a clause declared unwritten are complex. A lawyer will help you assess your chances and choose the best strategy (challenging the clause, claiming damages, etc.).

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

Further reading: related case law and developments

This judgment of 20 May 2009 is not isolated. The Court of Cassation has already ruled on similar situations. For example, in a judgment of 12 July 2001 (No. 99-11.123), it held that the nullity of a clause in co-ownership regulations cannot invalidate acts performed by the main syndicate, unless the clause was contrary to public policy. More recently, in a judgment of 4 February 2016 (No. 14-26.420), the Court specified that the legal personality of the secondary syndicate persists until it is dissolved by a judicial decision or a general meeting.

The trend of the courts is therefore clear: legal certainty prevails. One cannot go back on decisions taken in good faith over many years. This also means that co-owners must be vigilant from the start: once the secondary syndicate has operated, it is very difficult to erase its consequences.

For the future, the ALUR Law of 24 March 2014 strengthened transparency rules in co-ownerships, but it did not change the regime for secondary syndicates. The case law therefore remains relevant.

Frequently asked questions

1. Can I request a refund of charges paid to a secondary syndicate if its clause is annulled? No, because the nullity only applies for the future. Charges collected during the period when the syndicate existed are deemed due.
2. What should I do if I discover that my co-ownership regulations contain an illegal clause on secondary syndicates? You can take the matter to the Tribunal Judiciaire to have the clause declared unwritten. But act quickly to prevent the situation from becoming permanent.
3. Can a secondary syndicate be created without a clause in the regulations? No, it must be provided for in the co-ownership regulations. Otherwise, its creation is illegal.
4. What is the cost of legal proceedings to challenge a clause? Costs vary depending on complexity, but expect between €1,500 and €5,000 for proceedings before the Tribunal Judiciaire, excluding lawyers' fees.
5. Can I challenge a decision of a secondary syndicate if I was not summoned to the general meeting? Yes, you can seek annulment of the decision within two months of notification of the minutes. Failure to summon is a serious defect.

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 →