Failure of the managing agent to obtain authorisation: when a legal action by the owners' association is annulled

Imagine: you are the owner of a flat in Nogent-sur-Seine, and you receive a court summons from your owners' association. You are summoned before the court over a matter of unauthorised works or unpaid service charges. But a question nags at you: was the managing agent properly authorised by the general meeting to bring this action?

This is the question that every owner who is sued asks. And the answer is not straightforward: the managing agent's lack of authorisation may invalidate the entire proceedings, but not everyone can challenge that authorisation.

The Cour de cassation, in a judgment of 15 May 1992 (No. 89-18.021), ruled: if the managing agent acts without authorisation from the general meeting, this is a substantive irregularity that any defendant (the owner sued, but also a third party) may raise. However, challenging the validity of the authorisation decision itself is reserved solely for owners who voted against or were absent. A breakdown.

The facts: a story that happens every day

Mr Dupont, owner of a flat in Bar-sur-Seine, is in dispute with his owners' association over private works he carried out without authorisation. The managing agent, Mr Martin, decides to sue Mr Dupont to restore the common parts. But Mr Dupont challenges the proceedings: according to him, the managing agent was not authorised by the general meeting to bring this action.

The case comes before the Tribunal de grande instance of Troyes. The managing agent produces a resolution of the general meeting authorising him to act. But Mr Dupont argues that this resolution is invalid: the vote was not carried by the required majority, and some owners were not properly summoned. The managing agent retorts that only an opposing or absent owner may challenge the validity of the general meeting, and that Mr Dupont, who voted in favour, is not entitled to do so.

The tribunal rules in favour of the managing agent: the action is declared admissible. Mr Dupont appeals, but the Cour d'appel of Reims upholds the decision. He then appeals to the Cour de cassation. The Cour de cassation must decide: who may challenge the managing agent's lack of authorisation? And who may challenge the validity of the authorisation itself?

The court's reasoning — explained

The Cour de cassation distinguishes two different situations. First, the lack of authorisation of the managing agent: if the managing agent brings legal proceedings without having been authorised by the general meeting, this is a substantive irregularity (i.e., a serious defect affecting the very validity of the action). This irregularity may be invoked by any defendant to the action, whether an owner or not. This is logical: if the managing agent has no power to act, the action is void, and anyone can have that declared.

Second, challenging the validity of the authorisation decision itself (for example, an irregularity in the summons, the vote, or the quorum): this is reserved for owners who voted against (opponents) or who were absent or failed to vote. Why? Because those owners did not accept the decision. Conversely, an owner who voted in favour cannot subsequently challenge the decision they approved. This is the principle of estoppel (one cannot contradict oneself to the detriment of another).

In this case, Mr Dupont voted in favour of the resolution authorising the action. He could not therefore challenge its validity. The Cour de cassation dismisses his appeal. But it makes clear that if the managing agent had had no authorisation at all, Mr Dupont could have raised that.

What few people know is that this distinction was taken up by the Law of 10 July 1965 on co-ownership (Article 55): the managing agent may not bring legal proceedings without authorisation from the general meeting, except for preservatory actions (such as a freezing order) or actions to recover service charges. But even in those cases, the managing agent must inform the managing council.

What this means for you — practically

If you are an owner sued by your association, first check whether the managing agent was authorised by a general meeting decision. If not, you can raise the substantive irregularity before the court, and the action may be annulled. You can even do so if you are a third party (for example, a tenant or neighbour). But beware: if you are an owner and voted in favour of that authorisation, you cannot challenge its validity.

Take a concrete example: in Bar-sur-Seine, a managing agent sues an owner for unpaid service charges. The general meeting did authorise the action, but the summons was not sent within the legal time limits. Only owners who were absent or opposed can challenge this irregularity. If you were present and voted in favour, you cannot complain.

For property professionals (agents, notaries, managers), this decision reminds them of the importance of verifying the managing agent's powers before taking action. A simple omission can lead to the annulment of the entire proceedings, with costs borne by the association (and therefore the owners).

If you are in this situation, you should: 1) ask the managing agent for a copy of the general meeting decision authorising the action; 2) check the voting conditions (majority, quorum); 3) if you are an opponent or absent owner, challenge the irregularity within two months of notification of the minutes (time limit for appeal).

Four tips to avoid this type of dispute

• Check the managing agent's powers before any action: before suing an owner, ensure the general meeting has given express and valid authorisation. Keep the minutes.
• Comply with legal majorities: for legal proceedings, the majority under Article 25 of the 1965 Law is often required (majority of votes of all owners). Check that the vote was carried by the correct majority.
• Inform the managing council: even if you have authorisation, keep the managing council informed. This avoids internal disputes.
• If in doubt, seek legal advice: if you are an owner being sued, do not wait. Consult a lawyer lawyer to check the validity of the action. In Nogent-sur-Seine, Maître Zakine can help you.

Further reading: related case law and developments

This 1992 decision has been confirmed by several later judgments. For example, the Cour de cassation ruled in 2004 (No. 02-16.785) that lack of authorisation is a procedural bar (substantive irregularity) and not a procedural exception, meaning it can be raised at any stage of the proceedings. In 2010, it clarified that the managing agent must produce the authorisation at the first request in court, on pain of inadmissibility.

However, note that if the general meeting ratifies the action afterwards (i.e., after the summons), regularisation is possible. But it cannot retroactively cure a nullity already pronounced.

The trend of the courts is to protect owners against abusive or poorly prepared actions. But it also imposes rigour on managing agents: a simple procedural error can cost the association dearly.

Key points to remember

• Q: Can I challenge an action by the managing agent if I was not summoned to the general meeting? A: Yes, if you are an absent or opposing owner. You can challenge the authorisation itself.
• Q: What should I do if the managing agent sues me without authorisation? A: Raise the substantive irregularity immediately. The judge will annul the action.
• Q: Can a tenant challenge the lack of authorisation? A: Yes, because it is a substantive irregularity that any defendant may invoke.
• Q: What is the time limit to challenge a general meeting? A: Two months from notification of the minutes (Article 42 of the 1965 Law).
• Q: Can the managing agent act urgently without authorisation? A: Yes, for preservatory actions (e.g., freezing order), but he must inform the managing council and convene a general meeting as soon as possible.

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 →