The association of co-owners facing a defaulting co-owner: authority to start a real property seizure

A co-owner has stopped paying his service charge calls for several quarters. The debt grows, the building's budget becomes unbalanced, and the other co-owners end up advancing the unpaid sums through additional calls for funds. Faced with this deadlock, the property manager (syndic) has an arsenal of recovery measures ranging from a simple formal notice (mise en demeure) to the forced sale of the unit. One question remains that causes a great deal of hesitation in practice: to start a real property seizure, must the syndic first obtain a resolution of the general meeting, and by what majority? This article sets out the regime of the syndic's authorisation for a real property seizure, the applicable majority, and above all the strategic choice between the statutory mortgage (hypothèque légale) of the association of co-owners (syndicat) and the seizure itself.

The service charge debt, the foundation of recovery

Before discussing seizure, one must pin down the nature of the debt that the syndicat is seeking to recover. Co-ownership service charges (charges) fall into two broad groups: the advance payments called under the forecast budget voted each year (Article 14-1 of Law No. 65-557 of 10 July 1965 laying down the status of co-ownership of built buildings) and expenditure outside the forecast budget (works voted, façade renovation, roof repair).

Each co-owner must contribute to these charges in proportion to his shares (tantièmes). Where he does not pay, the syndicat des copropriétaires becomes the holder of a debt which, to be enforced by seizure, must meet three cumulative conditions: it must be certain, liquidated and due. That is the meaning of Article L.111-2 of the French Code of Civil Enforcement Procedures, which makes any measure of compulsory enforcement subject to a liquidated and due debt and an enforceable instrument (titre exécutoire).

The central role of the enforceable instrument

The syndicat cannot seize a co-owner's unit on the strength of its statement of charges alone. It needs an enforceable instrument, that is, a court decision ordering the debtor to pay. In practice, the syndic follows one of these routes:

• the order for payment (injonction de payer), a quick and inexpensive procedure suited to undisputed debts;
• proceedings on the merits before the judicial court (tribunal judiciaire), where the debtor disputes the statement or raises the nullity of a general meeting resolution;
• the accelerated recovery of Article 19-2 of the 1965 Act, which allows, after a formal notice that has remained unsuccessful for more than thirty days, the advance payments of the forecast budget not yet due to be made immediately payable and an instrument to be obtained by order.

This last mechanism is often under-used. It turns a debt payable by instalments into a global debt that is immediately recoverable, which considerably speeds up the obtaining of the instrument needed for a seizure. All the stages of recovery, from the formal notice to obtaining the instrument, are set out in our article on the syndic's procedure for recovering unpaid charges.

Is the authorisation of the general meeting needed to seize?

This is the question that shapes the whole of the syndic's strategy. The general principle appears in Article 55 of Decree No. 67-223 of 17 March 1967: the syndic may not bring proceedings in the name of the syndicat without having been authorised by a decision of the general meeting. Without a mandate, the action is inadmissible.

But the second paragraph of that same Article 55 provides for notable exceptions. Prior authorisation is not required, in particular, for actions to recover a debt. In other words, to obtain a judgment against the debtor co-owner and the enforceable instrument, the syndic acts as of right, without going through a vote.

Does real property seizure fall within recovery?

The whole difficulty lies in the characterisation of real property seizure. Is it an ordinary legal action requiring authorisation, or a mere method of enforcement extending the recovery already begun?

The prevailing position holds that real property seizure, as a measure of compulsory enforcement aimed at payment of the charges, forms an extension of the recovery action and therefore benefits from the exemption from authorisation in Article 55. Case law largely accepts this reading: once the enforceable instrument has been obtained, the syndic may start the appropriate enforcement measures, including seizure of the unit, without seeking a further vote.

This solution nonetheless remains debated, because real property seizure is the most serious of the enforcement measures: it leads to the forced sale of the property. Some commentators argue for a specific authorisation, given its consequences. In practice, a prudent syndic has every interest in placing on the agenda of a general meeting a resolution expressly authorising proceedings for real property seizure against the co-owner named.

This prudence serves three concrete purposes. It secures the admissibility of the procedure against any challenge by the debtor. It gives the syndic reinforced legitimacy vis-à-vis the other co-owners, who bear the financial risk of the procedure. Finally, it allows the budget of the action to be validated, in particular lawyers' fees and procedural costs, part of which will be charged to the debtor under Article 10-1 of the 1965 Act.

By what majority does the general meeting decide?

Where a resolution of authorisation is put to the vote, the rule is that of the majority of Article 24 of the Law of 10 July 1965, known as the simple majority. The decision is carried by a majority of the votes cast by the co-owners present, represented or having voted by correspondence. Abstentions are not counted as votes against.

This majority applies to all decisions of day-to-day administration and, more broadly, to all those for which the law does not impose a reinforced majority. Authorising legal proceedings or an enforcement measure is one of them. There is therefore no need to look to the majority of Article 25 (absolute majority of the votes of all the co-owners) or that of Article 26 (double majority), which are reserved for other decisions such as certain works or amendment of the co-ownership rules (règlement de copropriété).

A useful point: the debtor co-owner is not deprived of his right to vote at the general meeting merely because of his debt. He takes part in and votes on the resolution that concerns him. On the other hand, if he is also the syndic or is connected with the syndic, the rules on conflicts of interest and the prohibition on the syndic receiving a proxy to vote on certain questions apply.

Drafting the resolution precisely

An effective resolution does not rest content with a vague formula such as "authorise the syndic to act". It must identify the debtor co-owner, refer to the unit concerned, state the amount of the debt and its basis, and expressly authorise the syndic to have a payment order operating as a real property seizure (commandement de payer valant saisie immobilière) issued and then to pursue the sale. This precision limits the risk of challenge and frames the mandate given.

The statutory mortgage of the syndicat, a weapon often neglected

Before triggering a seizure, the syndic has a powerful security tool: the statutory mortgage of the syndicat des copropriétaires. Article 19 of the Law of 10 July 1965 secures the syndicat's claims on a unit by a statutory mortgage. This security requires registration at the land registry (service de publicité foncière), a formality that the syndic has carried out by a notary.

Alongside this statutory mortgage under the ordinary rules, Article 19-1 creates a special security. Historically described as a special real property privilege (privilège immobilier spécial), it was converted into a special statutory mortgage by Ordinance No. 2021-1192 of 15 September 2021 reforming the law of security interests, which entered into force on 1 January 2022. This security covers the charges for a limited period defined by law (the current financial year and a number of past years) and enjoys a particularly favourable ranking, without registration always being a condition of that ranking. The conditions of registration, the ranking and the enforcement of this security on the sale of the unit are analysed in our article on the special statutory mortgage of the syndicat.

The value of the statutory mortgage lies in the fact that it secures the syndicat's ranking among the co-owner's creditors. It does not force the sale of the unit, but it guarantees that the syndicat will be paid in preference out of the price, whether the sale takes place at the initiative of the debtor, of another creditor or of the syndicat itself. The apportionment of charges between seller and buyer on the transfer of a unit is dealt with in a separate article on the settlement of co-ownership charges on a sale.

Strategic choice: statutory mortgage or real property seizure?

This is the heart of the decision. Mortgage and seizure do not pursue the same objective and are not mutually exclusive: the first secures, the second recovers. The right reflex is rarely to seize immediately.

What the statutory mortgage allows

Registering a statutory mortgage is quick, relatively inexpensive and discreet in its immediate effects. It has several advantages:

• it fixes the syndicat's ranking, which prevents a later creditor (bank, tax authority, another co-ownership) from taking priority over the syndicat on the sale price;
• it puts real pressure on the debtor, whose unit becomes harder to sell or refinance freely;
• it prepares for the future: if the debtor sells his unit, the notary will have to pay the syndicat before releasing the funds;
• it leaves time for an amicable solution, such as a payment schedule, without immediately incurring heavy procedural costs.

The mortgage is particularly suitable where the debt is still recent, where the debtor shows signs of solvency, or where the local property market makes a forced sale unattractive.

What real property seizure involves

Real property seizure aims at the sale of the unit in order to pay the syndicat. It is a heavy procedure, governed by the Code of Civil Enforcement Procedures. It begins with service of a payment order operating as a real property seizure (Article R.321-1 of the Code of Civil Enforcement Procedures), published at the land registry, which makes the property unavailable. It continues before the enforcement judge (juge de l'exécution, JEX) at an orientation hearing (audience d'orientation) where the judge checks the regularity of the procedure and rules on challenges. It ends with an amicable sale authorised by the judge or a forced sale by auction (adjudication) on the basis of a conditions of sale document (cahier des conditions de vente) and a reserve price.

This route makes sense only in specific situations: a large debt that has been unpaid for a long time, a debtor in default on any payment schedule, no other assets that can be mobilised, a unit forming the bulk of the seizable estate. It also assumes that the value of the property, once creditors of higher ranking have been paid (notably the bank holding a property loan secured by a contractual mortgage), leaves a sufficient balance to cover the charges debt. Seizing a heavily encumbered unit only to recover nothing would be a strategic and financial mistake.

Combining the two tools

In practice, the soundest strategy combines the two mechanisms. The syndic first has the statutory mortgage registered to secure the syndicat's ranking and apply pressure. In parallel, it obtains the enforceable instrument, by order for payment or on the merits. If the formal notice and the payment schedule fail, it then triggers the real property seizure, with the strength of a security already registered that optimises its position in the distribution of the price.

Another frequent configuration: where another creditor has already started a seizure of the same unit, the syndicat does not need to launch its own procedure. It is enough for it to declare its claim and assert its preferential ranking in order to be paid out of the auction price. This is precisely where the special statutory mortgage of Article 19-1 shows its full value.

Illustration

Imagine a co-ownership of about forty units in which a co-owner, owner of a single apartment financed by a bank loan that is still largely outstanding, accumulates two years of arrears. The value of his unit barely exceeds the capital remaining due to the bank. In that case, starting a real property seizure risks bringing the syndicat nothing after the bank has been paid. Registering a statutory mortgage and setting up a court-ordered payment schedule, backed by an enforceable instrument obtained by the accelerated route of Article 19-2, is a far more rational response. Seizure will be considered only if the debtor stops complying with the schedule and if his asset position changes.

Conversely, a co-owner holding a unit free of any bank mortgage, whose charges debt reaches several thousand euros with no prospect of settlement, fully justifies a real property seizure: the proceeds of the sale will cover the debt and the costs.

Procedural precautions not to be neglected

Several points of vigilance determine the success of the approach. The enforceable instrument must be final or at least enforceable before any enforcement measure. The payment order operating as a seizure must comply with the statements required on pain of nullity by the Code of Civil Enforcement Procedures. The annexed statement of charges must be clear, broken down by financial year and consistent with the general meeting resolutions approving the accounts, failing which the debtor will challenge the liquidated nature of the debt.

The principle of proportionality deserves particular attention. Seizure of a debtor's home for a modest debt may be held disproportionate, and the enforcement judge has a power of appraisal. For limited debts, less radical routes exist, such as attachment of bank accounts (saisie-attribution) or attachment of earnings. Real property seizure must remain the measure of last resort, reserved for significant and lasting arrears.

Finally, the traceability of the mandate matters. Even if the exemption from authorisation in Article 55 applies to recovery, keeping a clear general meeting resolution, an up-to-date statement, the formal notices and the enforceable instrument is the best protection against challenges by the debtor.

Conclusion

Real property seizure is neither automatic nor the first response to non-payment. On authorisation, the prevailing position exempts the syndic from a prior vote, because the seizure extends the recovery action exempted by Article 55 of the Decree of 17 March 1967. But the seriousness of the measure justifies, as a matter of prudence, a specific general meeting resolution adopted by the simple majority of Article 24, naming the debtor and expressly authorising proceedings for seizure.

On strategy, the winning reflex is rarely to seize at once. The statutory mortgage secures the syndicat's ranking at low cost and prepares the ground, whereas seizure is justified only where the debt is heavy, the debtor is in default and the unit retains sufficient value after payment of the priority creditors. The right choice combines the two: secure first by mortgage, then recover by seizure if the amicable route fails.

Before any decision, have your lawyer carry out a solvency and ranking audit: value of the unit, registered bank mortgages, other creditors present. It is this picture of the debtor's assets, and not the amount of the debt alone, that will determine whether to register, seize, or both.

Frequently asked questions

Does the syndic need authorisation from the general meeting to start a real property seizure?

The prevailing position answers in the negative: real property seizure extends the action to recover a debt, which is exempt from authorisation by the second paragraph of Article 55 of Decree No. 67-223 of 17 March 1967. Case law largely accepts this reading. Given the seriousness of the measure, prudence nonetheless recommends putting a specific resolution of authorisation to the vote, which secures admissibility and the syndic's mandate.

By what majority does the general meeting authorise an action against a debtor co-owner?

The applicable majority is that of Article 24 of Law No. 65-557 of 10 July 1965, known as the simple majority. The decision is carried by a majority of the votes cast by the co-owners present, represented or having voted by correspondence, disregarding abstentions. The reinforced majorities of Articles 25 and 26 are not required for this type of decision.

What is the difference between the syndicat's statutory mortgage and real property seizure?

The statutory mortgage, provided for in Articles 19 and 19-1 of the 1965 Act, is a security that guarantees the syndicat's ranking for payment without forcing the sale of the unit. Real property seizure is a method of compulsory enforcement that leads to the sale of the property in order to pay the syndicat. The first secures, the second recovers; they are often combined, the mortgage being registered before the seizure is started.

Can the syndicat have the debtor co-owner's main home sold?

Yes, a main residence may be the subject of a real property seizure for charges debts, provided the syndicat holds an enforceable instrument and a liquidated and due debt. The enforcement judge nonetheless checks the regularity of the procedure and may assess the proportionality of the measure. For a modest debt, less radical routes such as attachment of bank accounts or attachment of earnings are preferable.

How long does a real property seizure procedure last?

The duration varies widely depending on the challenges raised, but a real property seizure is generally counted in months, from the payment order operating as a seizure to the auction or amicable sale. The orientation hearing before the enforcement judge, the advertising of the sale and any appeals lengthen the timetable. This slowness explains why the statutory mortgage, which is quicker to register, is often preferred as a first step.

Does the accelerated recovery of Article 19-2 dispense with an enforceable instrument?

No, it allows one to be obtained more quickly. Article 19-2 of the 1965 Act makes the advance payments of the forecast budget not yet due immediately payable after a formal notice that has remained unsuccessful for more than thirty days, and opens an accelerated procedural route to obtain judgment against the debtor. This instrument is then indispensable to start any enforcement measure, including real property seizure.

Can the debtor co-owner vote at the general meeting that authorises proceedings against him?

Yes, the charges debt does not in itself deprive the co-owner of his right to vote. He takes part in and votes on the resolution that concerns him, which is carried by the majority of Article 24. Restrictions exist only if he also holds other functions giving rise to a conflict of interest, notably where he is himself the syndic.