Election and role of the co-ownership council

A property manager (syndic) who refuses to provide works invoices, a contract tacitly renewed without competitive tender, a general meeting rushed through in an hour without any question of substance being asked: in a co-ownership (copropriété), these situations almost always reflect the absence of an active, or properly elected, co-ownership council (conseil syndical). This body, often seen as a formality, is nevertheless the only permanent counterweight to the property manager between two meetings. Its members must still have been properly appointed and know the exact extent of their prerogatives. This guide sets out the eligibility conditions, the arrangements for electing the members of the co-ownership council, the role of the council vis-à-vis the property manager, the contribution of the delegation of powers resulting from the 2019 reform, and the means of challenging an irregular election.

The co-ownership council, counterweight to the property manager

The co-ownership council is governed by Article 21 of Law No. 65-557 of 10 July 1965 establishing the status of co-ownership of built properties, supplemented by Articles 22 et seq. of Decree No. 67-223 of 17 March 1967. Its primary function comes down to two verbs: it assists the property manager and oversees his or her management.

A common confusion must be dispelled at the outset. The co-ownership council does not administer the co-ownership: it has neither legal personality, nor the power to sign contracts on behalf of the co-ownership association (syndicat des copropriétaires), nor the status of legal representative. It is the property manager who carries out the decisions and represents the association. The council monitors, advises and raises alerts. Its legitimacy rests entirely on the fact that it emanates from the co-owners themselves, elected at a general meeting.

Establishing a co-ownership council is in principle mandatory in every co-ownership association. The general meeting may nevertheless decide not to establish one, but only by the majority of Article 26 of the 1965 Act (a majority of the members of the association representing at least two thirds of the votes), which reflects the exceptional nature of this exemption. In practice, only very small co-ownerships or those with a non-professional property manager sometimes choose this route.

Who can be elected to the co-ownership council: eligibility conditions

Article 21 of the 1965 Act sets out the list of eligible persons. The following may sit on the co-ownership council:

• the co-owners themselves, whether individuals or legal entities
• the partner in an allocation company or the holder of a real right giving entitlement to ownership
• the spouse or PACS partner of a co-owner
• the ascendants or descendants of a co-owner
• the usufructuary or bare owner of a lot
• the legal representative of a co-owner, for example the manager of an SCI (French property holding company) that owns one or more lots

A landlord co-owner holding several lots remains perfectly eligible: the status of co-owner is sufficient, regardless of actual occupation of the dwellings. A mere tenant, on the other hand, may not sit, lacking the status of co-owner.

The text above all lays down a structuring incompatibility, a guarantee of independence: the property manager, his or her spouse, his or her PACS partner, his or her ascendants and descendants, and his or her employees (préposés), may not be members of the co-ownership council. The logic is obvious: one cannot oversee the management of a person to whom one is directly linked. An election that disregarded this prohibition would be exposed to annulment. This rule also applies to a non-professional property manager: a co-owner who himself or herself performs the functions of volunteer property manager may not, at the same time, sit on the co-ownership council. The status, prerogatives and liability of this non-professional property manager are detailed in our article on the rights and obligations of the volunteer property manager.

Election of the members of the co-ownership council at the general meeting

The election of the members of the co-ownership council falls exclusively to the general meeting of co-owners. No appointment by co-optation or by the property manager is permitted: each member must receive a direct mandate from the co-owners assembled at the meeting.

The applicable majority

Appointment is made by the majority of Article 25 of the 1965 Act, that is the absolute majority of the votes of all the co-owners, whether present, represented or absent. Each candidate is put to the vote individually, and not en bloc, so that each co-owner may approve or reject any given name. The rules governing the representation of absent co-owners are set out in our article on the maximum number of proxies at a general meeting.

The mechanism of Article 25-1 applies where the first vote fails. If a candidate does not obtain the absolute majority but gathers at least one third of the votes of all the co-owners, the meeting may immediately hold a second vote, this time by the majority of Article 24 (a majority of the votes of the co-owners present, represented or having voted by post). This bridge prevents a co-ownership council from never being constituted for want of reaching the strengthened majority.

Where no candidate meets the required conditions, or no co-owner stands as a candidate, the minutes must record the impossibility of appointing a co-ownership council. In that case, any co-owner may apply to the court to have the members appointed, or the meeting will reconsider the question at a later meeting.

Number of members and term of office

The law sets neither a minimum nor a maximum number of members. This number is determined by the co-ownership regulations (règlement de copropriété) or, failing that, by the general meeting. It is prudent to provide for sufficient numbers to absorb resignations and absences, while remaining operational: an oversized council has difficulty meeting.

The term of office of council members may not exceed three years, under Article 22 of the Decree of 17 March 1967. The term is renewable, with no limit on the number of renewals. Nothing prevents the meeting from fixing a shorter term, one year for example, to allow an annual review of the members. On expiry of the term, a council member who is not re-elected immediately loses that status: he or she may no longer consult the co-ownership's documents or bind the council.

Appointment of the chair

The co-ownership council elects its chair from among its members. This appointment is for the council members alone, meeting among themselves, and not for the general meeting. The chair convenes and leads the meetings, serves as the property manager's main contact and signs requests for the communication of documents. The role is central: it is often the chair who gives the council its dynamism or, conversely, lets it fall asleep.

The role of the co-ownership council: assisting and overseeing the property manager

The role of the council operates on three complementary fronts: oversight of management, assistance and opinions, and the competitive tendering of the property manager's contract.

The mission of overseeing management

Article 21 gives the co-ownership council a general mission of overseeing the property manager's management. This oversight covers in particular the association's accounts, the allocation of expenses among co-owners, the conditions in which contracts and procurement are entered into, and the preparation of the forecast budget, which it follows during the financial year.

To exercise this oversight, the co-ownership council has an extensive right to information. It may inspect and copy, after giving notice to the property manager, any document relating to management and, more generally, to the administration of the co-ownership. This right includes invoices, supply and maintenance contracts, bank statements of the association's separate account, quotes and calls for funds. A property manager who refuses or delays in providing these documents risks having his or her management called into question before the meeting, and may even incur liability.

Take a concrete example. A co-ownership council notes, on examining the statements of the separate bank account, that several transfers have been made to a maintenance contractor without the corresponding contract ever having been approved at a meeting. The council then asks the property manager for the supporting documents, places the matter on the agenda of the next meeting and proposes a resolution to regularise or challenge. This is exactly the kind of vigilance that justifies the existence of the body.

The mission of assistance and opinions

The co-ownership council assists the property manager in preparing decisions. It gives its opinion on all questions concerning the association on which it is consulted or which it takes up of its own accord. This power to take up matters of its own motion is essential: the council need not wait for a request from the property manager to look into a subject.

Article 21 moreover makes consultation of the co-ownership council mandatory for any contract exceeding an amount set by the general meeting. This rule gives the council a prior right of review over significant expenditure, for example a facade renovation contract or the replacement of a lift. The meeting must therefore remember to set this threshold, failing which the consultation obligation remains theoretical.

The co-ownership council may also seek the opinion of any professional of its choice on any question concerning the association. It may for example consult an architect before approving a works project, or a lawyer before bringing proceedings. The corresponding fees are ordinary expenses of the association.

Competitive tendering of the property manager's contract

The law provides for periodic competitive tendering of the property manager's contract. Every three years, a proposal to put several contracts in competition must in principle be placed on the agenda of the meeting, unless the meeting decides otherwise. The council plays a driving role here: it may solicit competing contracts, compare them and present its analysis to the co-owners. An active council turns this obligation into a genuine lever for negotiating fees and the scope of services. On the procedure to follow where this tendering leads to a replacement, see our article on changing property manager and the applicable time limits.

Strengthened powers: delegation of powers to the co-ownership council

Ordinance No. 2019-1101 of 30 October 2019, which entered into force on 1 June 2020, introduced into the 1965 Act Articles 21-1 to 21-5, which allow the general meeting to delegate certain powers to the co-ownership council. This is a major development: the council, until then confined to oversight and opinions, may now take certain decisions itself.

The general meeting may delegate to the co-ownership council, by the majority of Article 25, the power to take all or some of the decisions falling under the majority of Article 24, that is decisions of day-to-day management and maintenance. This delegation is subject to a strict framework. It may not cover the approval of the accounts, the setting of the forecast budget, or decisions falling under the strengthened majorities of Articles 25 and 26. It is limited in duration, two years at most, renewable, and the meeting must set the maximum amount of money the council may commit under it.

In practical terms, a co-ownership may delegate to the council the task of deciding on minor maintenance works or on taking out certain contracts, within a financial ceiling voted by the meeting. The council then reports on the exercise of this delegation at each meeting. Where the delegation exceeds a certain amount, the co-ownership council must be covered by specific civil liability insurance, which calls for particular vigilance before any vote.

This power of delegation changes the balance of powers vis-à-vis the property manager. A council with delegated powers is no longer only an overseer: it becomes a decision-making actor for day-to-day matters, which speeds up management but also increases its responsibilities.

The liability of members of the co-ownership council

The functions of council member are performed on a voluntary basis. This absence of remuneration does not mean absence of liability. A council member may incur civil liability if he or she commits a personal fault causing loss to the association or to a co-owner.

Case law accepts that the liability of a member of the co-ownership council requires proof of a characterised fault, a loss and a causal link. The mere fact of having misjudged a situation, in the course of overseeing management, does not in itself give rise to liability, since the council has only an advisory role in most areas. The position changes where the council exercises a delegation of powers: by committing expenditure on behalf of the association, it acts as a decision-maker and its liability may be sought more widely.

This is why taking out civil liability insurance covering the members of the co-ownership council is strongly recommended, and becomes necessary where a delegation exceeds the regulatory thresholds. It is for the council to check that the co-ownership's insurance policy does extend its cover to its members.

Challenging an irregular election of the co-ownership council

A challenge to the election of the co-ownership council falls under the general regime for challenging general meeting decisions, the appointment of council members being a decision voted at a meeting.

Grounds of irregularity

Several defects may affect the election and justify its annulment:

• the election of an ineligible person, for example the spouse of the property manager or a mere tenant
• the absence of the required majority, where the minutes show that a candidate declared elected did not reach the majority of Article 25 or meet the conditions of Article 25-1
• a defect affecting the convening or conduct of the meeting, for example an appointment item not properly placed on the agenda
• an error in the counting of votes or in the transcription of the minutes

A frequent question concerns the en bloc vote on several candidates. Regularity requires a vote candidate by candidate: a global vote on a list may weaken the election if a co-owner wished to approve certain names and reject others.

The time limit and procedure

The action to challenge is governed by Article 42 of the 1965 Act. Dissenting or absent co-owners have two months from notification of the minutes of the general meeting to bring the matter before the judicial court (tribunal judiciaire) of the place where the building is situated. This time limit is strict: after two months, the decision becomes final and the election can no longer be called into question, even if tainted by irregularity.

This point deserves the attention of landlord co-owners active in governance. Notification of the minutes, sent by registered letter with acknowledgement of receipt or electronically where the co-owner has consented, starts the time running. It is therefore necessary to react quickly, without waiting for the next meeting.

Who may act

Only dissenting co-owners (those who voted against the disputed resolution) or absent co-owners (those who were absent and not represented) have standing to challenge. A co-owner who voted in favour of the appointment, or who abstained, cannot in principle challenge it afterwards. This is one more reason, for an attentive co-owner, to have his or her opposition recorded in the minutes.

Annulment of the election has delicate effects. Acts performed by the co-ownership council between its election and the annulment may be called into question, in particular where it was acting under a delegation of powers. Hence the value of securing the election from the outset rather than having to deal with the consequences of an annulment.

Conclusion

The co-ownership council is not an institutional decoration: it is the only body capable of keeping the property manager under permanent oversight and, since 2019, of taking over part of day-to-day management. Its strength depends on two cumulative conditions: an irreproachable election, complying with the eligibility conditions and the majorities of Article 25, and members who know and genuinely exercise their prerogatives of oversight and information. A council that merely validates the property manager's proposals does not fulfil its mission; a council that is too active but badly elected risks having its acts annulled.

For co-owners involved in governance, the recommendation is simple: before each meeting ruling on the composition of the council, check the eligibility of each candidate, require an individual vote candidate by candidate, and have any reservation recorded in the minutes. If an irregularity appears established to you, do not let the two-month period of Article 42 pass: instruct a French lawyer (avocat) without waiting for the next meeting.

Frequently asked questions

Is a co-ownership council mandatory in all co-ownerships?

In principle yes. Article 21 of the Act of 10 July 1965 provides for the establishment of a co-ownership council in every co-ownership association. The general meeting may nevertheless decide not to establish one, but only by the strengthened majority of Article 26, which makes this exemption exceptional. In the absence of a council, no permanent oversight of the property manager is ensured between two meetings.

What majority is needed to elect the members of the co-ownership council?

The election is by the majority of Article 25 of the 1965 Act, that is the absolute majority of the votes of all the co-owners. If a candidate obtains at least one third of these votes without reaching the absolute majority, a second vote may be held immediately by the majority of Article 24, under the mechanism of Article 25-1. Each candidate must be put to the vote individually.

Can a landlord co-owner sit on the co-ownership council?

Yes, without restriction. The only status required is that of co-owner, regardless of occupation of the lots. A landlord holding one or more let lots is therefore fully eligible. Also eligible are his or her spouse, PACS partner, ascendants or descendants, and the legal representative of a company that is an owner.

What is the term of office of a council member?

The term may not exceed three years, under Article 22 of the Decree of 17 March 1967. It is renewable with no limit on the number of renewals. The meeting may fix a shorter term, for example one year, to renew more frequently the confidence placed in the members.

Within what time limit can the election of the co-ownership council be challenged?

The time limit is two months from notification of the minutes of the general meeting, under Article 42 of the 1965 Act. Only dissenting or absent co-owners have standing to bring proceedings before the judicial court of the place of the building. After that period, the decision becomes final, even if the election was irregular.

Can the co-ownership council take decisions in place of the general meeting?

Only under a delegation of powers voted by the meeting, provided for by Articles 21-1 to 21-5 resulting from the Ordinance of 30 October 2019. This delegation may cover only decisions falling under the majority of Article 24, for a maximum of two years and under a financial ceiling set by the meeting. It excludes approval of the accounts and the vote on the forecast budget.

Can a member of the co-ownership council incur liability?

Yes, in the event of a personal fault causing loss to the association or to a co-owner, despite the voluntary nature of the functions. The risk is higher where the council exercises a delegation of powers and commits expenditure. Taking out civil liability insurance covering the members is strongly recommended, and becomes mandatory above the delegation thresholds set by the regulations.