Vote at General Meeting: Calculation of 'For' Votes by Difference Validated by the Court of Cassation

Picture the scene: you own a flat in Antibes, in a residence with a sea view. Tonight is the general meeting of co-owners. On the agenda, a crucial vote: the façade renovation, with a budget of €150,000. The managing agent announces the results: 800 votes 'against', 200 abstentions, and concludes: 'The resolution is rejected for lack of a majority.' But you wonder: how many votes were 'for'? The managing agent did not count them. Is this legal?

This question, asked every year by thousands of co-owners on the Côte d'Azur, from Nice to Grasse, was decided by the Court of Cassation in a judgment of 11 May 2000 (No. 98-17.029). And the answer is clear: no, the managing agent does not have to explicitly count 'for' votes. They can be calculated by difference. A decision that has direct consequences on the validity of your votes in co-ownership.

In this article, we will break down this case law, understand what it changes for you, and give you practical tips to avoid disputes. Whether you are a buy-to-let landlord in Nice, a co-owner in Antibes, or a property professional, what you are about to read could save you a lot of trouble.

The Facts: A Story Like Many Others

Mr. X owns a flat in a co-ownership in Antibes. In 1996, the general meeting voted on several resolutions, including one concerning insulation works. The minutes mention the names of the co-owners, their shares (quotities of common parts), and the details of 'against' votes, abstentions, and non-voters. But nowhere does the number of 'for' votes appear. Mr. X challenges the validity of the meeting before the Tribunal de Grande Instance (TGI) of Grasse, arguing that Article 17 of the Decree of 17 March 1967 requires the counting of 'for' votes. The TGI of Grasse rules in his favour: without this count, the minutes are irregular, and the resolutions are annulled.

The co-ownership appeals. The Court of Appeal of Aix-en-Provence reverses the judgment: according to it, Article 17 does not require an explicit count of 'for' votes; it suffices that the minutes allow them to be known by difference. Mr. X appeals to the Court of Cassation. He argues that the wording is clear: the minutes must indicate the result of each vote, which requires a separate count of 'for' votes.

The Court of Cassation, in its judgment of 11 May 2000, dismisses the appeal. It confirms the position of the Court of Appeal: Article 17 of the Decree of 17 March 1967 does not require the counting of 'for' votes. The number of votes in favour of a resolution can be calculated by subtracting the total votes of the meeting (determined from the attendance sheet) from the total votes of co-owners who declared themselves 'against', non-voters, or abstainers.

The Reasoning of the Court — Analysed

To understand this decision, we must delve into Article 17 of the Decree of 17 March 1967 (the text governing co-ownership). This article provides that the minutes of the general meeting 'mention [...] the result of each vote.' So far, nothing very precise. The question was: must the result necessarily include the number of 'for' votes?

The Court of Cassation answers no. It relies on a literal and teleological (purposive) interpretation of the text. Literal: Article 17 does not say 'the number of votes for and against', but only 'the result'. However, the result can be deduced if the minutes indicate the total votes of the meeting and the details of contrary votes, abstentions, and non-participations. Teleological: the purpose is to allow any co-owner to verify that the required majority has been achieved. If the minutes allow this calculation by difference, the objective is met.

Note, however: this solution assumes that the attendance sheet (a document listing all co-owners present or represented, with their shares) is correctly completed. Without it, it is impossible to know the total votes of the meeting. In the case decided, the attendance sheet was complete: names, surnames, addresses, and shares of each co-owner. This detail is crucial.

What few people know is that this case law has been confirmed several times (Civ. 3e, 18 December 2002, No. 01-03.951; Civ. 3e, 8 June 2011, No. 10-18.503). It is now part of positive law (current law). In short, if your managing agent only mentions 'against' votes and abstentions, the vote is valid, provided the attendance sheet is exhaustive.

What This Changes for You — Concretely

For the co-owner: you can no longer challenge a vote solely on the ground that the minutes do not mention 'for' votes. If the managing agent has properly noted the 'against' votes and abstentions, and the attendance sheet is complete, the vote is regular. Concrete example: in Nice, a meeting votes on lift works for €200,000. The managing agent announces 500 'against' votes, 100 abstentions, total meeting votes 1,200. By difference, there are therefore 600 'for' votes (1,200 - 500 - 100). Absolute majority (more than half of the votes of all co-owners) or relative majority (depending on the type of resolution), the calculation is possible.

For the managing agent: this decision simplifies your task. You do not need to count each 'for' vote during the meeting. You can simply record the oppositions and abstentions, then deduce. But be careful: if you omit to mention the 'against' votes or abstentions, the minutes become irregular. A co-owner could then request the annulment of the resolution.

For the buy-to-let landlord: if you mandate a tenant or a third party to represent you, ensure that the mandate is attached to the attendance sheet. Otherwise, the representative's votes could be challenged.

undefined, I have encountered cases where co-owners challenged votes based on the absence of mention of 'for' votes. Since this judgment, such challenges are bound to fail, unless the attendance sheet is incomplete. One tip: keep the attendance sheet and minutes carefully. In case of a dispute, they are your best evidence.

Four Tips to Avoid This Type of Dispute

• Check the attendance sheet before the vote: Before the start of the ballot, review the attendance sheet. Ensure that all co-owners present or represented are listed with their exact shares. If an error is detected, request immediate correction.
• Require detailed minutes: Even if the law does not require it, ask the managing agent to explicitly mention the number of 'for' votes in the minutes. This avoids any future challenge. Many managing agents already do this for transparency.
• Keep all documents: Keep the attendance sheet, minutes, powers of attorney, and mandates for at least 5 years (limitation period for challenging a meeting). In case of a dispute, these documents are essential.
• Consult a lawyer if in doubt: If a resolution seems questionable, do not rely solely on your own impressions. A lawyer specialising in property law, such as Maître Cécile Zakine, can analyse the minutes and tell you whether a challenge is justified.

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

Further Analysis: Related Case Law and Developments

Before the 2000 judgment, some lower courts (first instance courts) required an explicit count of 'for' votes. For example, the TGI of Grasse, in the initial case, annulled the resolutions on this ground. The Court of Cassation put an end to this divergence in 2000, unifying case law in the direction of flexibility.

Since then, other judgments have clarified the obligations regarding the minutes. Thus, the Court of Cassation ruled that the minutes must indicate the number of votes of each co-owner (Civ. 3e, 9 November 2011, No. 10-25.713) and that the absence of the chairperson's signature may lead to nullity (Civ. 3e, 4 February 2016, No. 14-28.133).

The trend is therefore towards a pragmatic interpretation of the texts: the essential thing is that the minutes allow verification of the regularity of the vote, without excessive formalism. But this flexibility has limits: if the attendance sheet is incomplete or the minutes are deficient, nullity remains possible.

In Practice: What to Do

FAQ:

1. What if the minutes do not mention 'for' votes? Check the attendance sheet. If it is complete, the vote is valid. If not, challenge the minutes within 2 months of notification of the meeting (time limit under Article 42 of the Law of 1965).
2. Can I ask the managing agent to add the 'for' votes? Yes, at the next meeting, you can propose a resolution for the managing agent to systematically mention 'for' votes. This is good practice, but not mandatory.
3. What is the risk if the managing agent only notes 'against' votes? No risk if the attendance sheet is correct. However, if the managing agent omits abstentions and non-voters, the calculation by difference becomes impossible, and the vote could be annulled.
4. How to verify the calculation of 'for' votes? Take the total votes of the meeting (column 'total shares' on the attendance sheet). Subtract the 'against' votes, abstentions, and non-voters (if indicated). The result is the number of 'for' votes.
5. What to do in case of an error in the shares? An error in the shares can vitiate the vote. If you notice an error, act quickly: the time limit to challenge is 2 months from notification of the minutes.

In summary, the decision of the Court of Cassation of 11 May 2000 clarified the voting rules in co-ownership. The managing agent does not have to explicitly count 'for' votes, provided the attendance sheet is exhaustive. But to avoid any dispute, transparency remains key.

In a similar situation? A 30-minute initial consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →