Discussion between owners in co-ownership: what if you disagree with a decision to your detriment taken at the general meeting of co-owners?
Reconciling the - sometimes - conflicting interests of co-owners within a co-ownership is not an easy balancing act. It is therefore logical that this task falls to the general assembly of the association of co-owners (VME). Within this body, each co-owner is represented, and decisions are taken by (defined) majority.
This does not preclude a decision to your detriment.
Although decisions of the general meeting are binding - and can sometimes have far-reaching consequences - the legislature has nevertheless provided for an appeal against decisions that are irregular, fraudulent or unlawful are (Article 577-9 §2 Civil Code). Under this article, any co-owner who suffers a personal disadvantage from such decision may challenge it and ask the court to annul or modify the decision.
An irregular decision is a decision arrived at with the violation of substantial regulations, compliance with which is imposed by law or by statute.
Examples of irregularities include:
- a problem with the notice, composition or representation of the general meeting;
- vote of a non-agenda item;
- a violation of majority rules;
- excess of jurisdiction by an interference with the individual property right or such modification of the common parts as substantially reduces the use and enjoyment of the private parts.
A fraudulent decision is a decision which is regular in form but which is tainted by deceit or an abuse of power. You must then prove that there was fraud on the part of the VME, the trustee or any other co-owner.
Examples of cheating include:
- the decisions awarding allowances and supplementary fees to a co-manager and trustee because they were hidden under the item of execution of works;
- a trustee who does not inform all parties equally about the nuisance regarding intended works.
An unlawful decision is one in which there is a disproportion between the objectives pursued by the majority, on the one hand, and the disadvantages arising therefrom for the minority, on the other: the most harmful solution is chosen, while several options are open, or there is disproportion between the advantage gained and the harmful consequences caused.
Examples of illegalities include:
- the decision made with the abuse of majorities;
- made the decision with the sole intent to harm;
- the decision made without reasonable and sufficient interest, while causing harm;
- the decision assigning the administrative and accounting management of the co-ownership to a "provisional trustee.
- the decision to install a railing that is unsafe for a resident;
- abuse, by the general assembly, of its right to refuse approval for aesthetic reasons, when no such comment had ever been made at a meeting.
The appeal must be - by writ of summons - registered within a period of 4 months from the date on which the general meeting took place.
Feel free to contact us with further questions or co-ownership issues.
Mr. Christophe VAN MECHELEN
May 5, 2020
