CONVENING OF A GENERAL MEETING AND MANDATE OF THE SYNDIC
On the sole means:
Considering article 7 of the decree of March 17, 1967, together article 42, paragraph 2, of the law of July 10, 1965;
Whereas, subject to special provisions, the general meeting is called by the trustee;
Whereas, according to the judgment under appeal (Paris, December 20, 2001), that a judgment of March 8, 2000 annulled the general meeting of the co-owners of a building in co-ownership of June 7, 1999, having renewed the company Foncia Franco -Switzerland (the company) in the function of trustee; that a general meeting, convened by the latter, being held on October 21, 1999, Mr. X …, co-owner, on December 15, 1999, requested its cancellation;
Whereas to dismiss Mr X … of this request, the judgment retains that the judgment annulling the decision to renew the mandate of the trustee had not intervened when the assembly was convened of October 21, 1999; that the decisions taken at the meeting of June 7, 1999, had remained enforceable until its cancellation; that at the date of convocation to the second meeting, the company was invested with the functions of trustee and had the power to convene it;
That e n ruling thus, since Mr X … had brought his action within two months from the notification of the decisions of the general meeting and while by the effect of the cancellation, the company no longer had the quality of trustee at the time of the convening of the second assembly, the court of appeal violated the aforementioned texts;
FOR THESE REASONS :
BREAK AND CANCELED, in all its provisions, the judgment rendered on December 20, 2001, between the parties, by the Paris Court of Appeal; returns, consequently, the cause and the parts in the state where they were before the aforementioned judgment and, to be done right, returns them before the court of appeal of Versailles;
Chairman: M. Weber
Rapporteur: Mme Boulanger, referendum advisor
General Advocate: M. Guérin
Lawyer (s): Me Le Prado, SCP Laugier et Caston
Publication: Bulletin 2004 III N ° 77 p. 71
Rental review, June 2004, n ° 848, p. 383-386, Thierry DUBAELE Contested
decision: Paris Court of Appeal, 2001-12-20
Case law precedents: In the same sense as: Civil Chamber 3, 1988-12-07, Bulletin, III, n ° 179, p. 97 (cassation). On the retroactive effect of the cancellation of the appointment of the trustee, in the same sense as: Civil Chamber 3, 1999-07-07, Bulletin, III, n ° 163, p. 114 (rejection); Civil Chamber 3, 2001-10-03, Bulletin, III, n ° 112, p. 86 (cassation).
02-15.091
Judgment n ° 283 of 3 March 2004
Cour de cassation – Third civil chamber
Rabat of arrest and cassation
Plaintiff (s) in cassation: Syndicate of co-owners of the Le Caillou shopping center
Defendant (s) in cassation: Société civile immobilière SCI Prestex Cauderan 1
Considering the judgment n ° 1389 FS rendered on December 10, 2003 by the third civil chamber of the Court of Cassation, welcoming appeal n ° 02-15.091, formed on May 27, 2002 by the syndicate of co-owners of the Le Caillou shopping center, of which the registered office is 49/51, boulevard Pierre 1er, 33110 Le Bouscat, against a judgment n ° 00/02515 rendered on March 11, 2002 by the first chamber B of the Bordeaux Court of Appeal, for the benefit of the real estate company Prestex Cauderan 1 and breaking this judgment in all its provisions;
Considering the judgment n ° 1130 F of the third chamber of October 28, 2003 rejecting the appeal n ° 02-15.090 formed on May 27, 2002 by the union of the co-owners of the Le Caillou shopping center whose registered office is at 49/51, boulevard Pierre 1er , 33110 Le Bouscat, against a judgment n ° 00/02516 rendered on March 11, 2002 by the first chamber B of the Bordeaux Court of Appeal, in favor of the real estate company Prestex Cauderan 2;
Whereas the decisions n ° 1130 F of October 28, 2003 of rejection and n ° 1389 FS of December 10, 2003 of cassation rendered on identical grounds are irreconcilable, so that it is appropriate to report judgment n ° 1389 FS of 10 December 2003 to re-examine this case;
On the sole means:
Considering article 42, paragraph 2, of the law of July 10, 1965;
Whereas the actions, which are intended to contest the decisions of the general assemblies, must, on pain of forfeiture, be brought by the opposing or defaulting co-owners within two months from the notification of said decisions;
Whereas to dismiss the syndicate of co-owners of the Le Caillou shopping center, its request for payment of an arrears of co-ownership charges formed on April 10, 1999, against the real estate company Prestex Cauderan 1 (SCI), co-owner , the judgment under appeal (Bordeaux, March 11, 2002 n ° 00/02515) holds that the appointment of the liquidator, by the general meetings of April 23, 1996 and October 12, 1998, is tainted with irregularity since his mandate, started October 15, 1991, expired October 15, 1994; that no general meeting was held from October 15, 1991 to April 23, 1996 and that it is necessary to note the irregularity of general meetings subsequent to the
That by so ruling, while the convening of a general meeting by a trustee whose mandate has expired, having the sole effect of rendering this meeting void without making it null and void as of right, the court of appeal, which has noted that the SCI had contested the validity of the mandate of the trustee and which did not find that this co-owner had formed a request for cancellation of the general meetings of April 23, 1996 and October 12, 1998, violated the aforementioned text;
FOR THESE REASONS :
REPORTS the judgment of the third civil chamber n ° 1389 FS of December 10, 2003;
STATUS again,
BREAK AND CANCELED, in all its provisions, judgment n ° 00/02515 rendered on March 11, 2002, between the parties, by the Bordeaux Court of Appeal; returns, consequently, the cause and the parts in the state where they were before the aforementioned judgment and, to be done right, returns them before the court of appeal of Poitiers;
Chairman: M. Weber
Rapporteur: Mme Gabet, adviser
General counsel : M. Gariazzo
Lawyer (s): SCP Waquet, Farge and Hazan, SCP Defrenois and Levis
