Real estate law
What is the starting point of the time limit for appealing against a decision taken by the general assembly of co-owners?
A. General meetings of co-owners held in person
Where a general meeting of owners is held in person, any owner may lodge an appeal against one or more decisions taken during the general meeting, provided that they cause him/her personal prejudice.
This appeal must be lodged with the Justice of the Peace of the place where the condominium building is located.
The Justice of the Peace may or may not decide to annul or reform the irregular, fraudulent or abusive decision of the general assembly which causes personal prejudice to the co-owner who has lodged the application.
This possibility is enshrined in Article 3.92, §3 of the New Civil Code, which provides that:
" § 3. Any co-owner may ask the judge to annul or reform an irregular, fraudulent or abusive decision of the general assembly if it causes him personal prejudice.
This action must be brought within four months of the date on which the general meeting took place ".
For general meetings held in person, the four-month appeal period begins on the date of the meeting. day after the date on which the general meeting took place.
For example, if a general meeting of co-owners is held on 15 January, the time limit for lodging an appeal against one of the decisions voted at the meeting will be 15 May.
B. General meetings of co-owners held by written consultation
As a reminder, article 3.87, § 11 of the New Civil Code enshrines the possibility of taking decisions of the general meeting of co-owners unanimously and in writing, except for those decisions which must be taken by authenticated deed. The article states that:
" The members of the condominium corporation may unanimously and in writing take all decisions falling within the competence of the general meeting, except those which must be passed by authenticated deed. The managing agent draws up the minutes ".
However, the article does not specify whether an appeal is available against these decisions taken in writing and, if so, within what time limit.
The Constitutional Court, seized of a preliminary question by the Justice of the Peace of the Canton of Ixelles, settled the question by stating that :
" The recourse provided for in article 577-9, § 2 of the former Civil Code or article 3.92, § 3 of the Civil Code may be exercised against the decision of the general meeting of unit owners which is passed by a majority in accordance with the written procedure provided for in the relevant provision, which refers to article 577-6, § 11 of the former Civil Code. This appeal must be lodged within four months of the date on which the general meeting took place, i.e. from the expiry of the period within which the owners had to send in their votes "(C. Const., judgment no. 45/2022 of 17 March 2022).
Therefore, the Constitutional Court states that an appeal is available against such a decision and that the starting point of the appeal period is the day after the day of the expiry of the time limit for the co-owners to send in their vote.
The Justice of the Peace of the canton of Saint-Josse-ten-Noode recently applied this theory of the Constitutional Court in a case handled by our firm. In this case, the general meeting of co-owners was held by written consultation.
As a reminder, the use of the written procedure had been authorised by the legislator subject to the respect of reduced quorums during the covid period.
The invitations sent to the co-owners confirmed that they had until 5 May 2021 to submit their votes.
Following the example of the Constitutional Court, the Justice of the Peace considered that the starting point of the time limit for appeal was " the day after the last date for issuing the last vote to be taken into consideration "(J.P. Saint-Josse-ten-Noode, 21 December 2022, R.G. n° 21A1595).
In the present case, the Justice of the Peace declared the opposing party's application of 15 September inadmissible and out of time, since the time limit for appeal was 6 May 2021. The opposing party should therefore have filed its action before 6 September 2021.
Finally, this four-month period is a time limit that is subject to foreclosure both in the context of a face-to-face general meeting and by written consultation. In other words, any action introduced after this period is inadmissible.
For more information, please contact Laurent Verbraken (email@example.com), Caroline Compagnon (firstname.lastname@example.org) and Eline De Mol (email@example.com), lawyers, CEW & Partners.