The role of the union council
THE INSTITUTION OF THE UNION COUNCIL
Optional character
The institution of a union council in a co-ownership is not obligatory, but constitutes a simple faculty. In case the institution of a union council is requested, it can be done at any time by a decision of the general meeting of co-owners. The point relating to the institution of the trade union council must appear specifically on the agenda sent with the convocation. The required majority is that of the majority of the members of the union representing at least three quarters of the votes (reinforced absolute majority). In this case, the general meeting must also determine, by the same majority, the rules concerning the organization and functioning of the union council, in particular the number of members and the duration of their term of office.
Composition
The law does not provide for a limit on the maximum or minimum number of union council members. Who can be a member of the union council? They are the co-owners, their spouses or their legal representatives. Neither the trustee, nor his spouse, nor his servants could be part of it, even if they were co-owners. The term of office of the members of the union council can not exceed 3 years renewable. Union Council members perform their duties without entitlement to remuneration. However, the operating costs of the union council are considered as administrative expenses and must be borne by the co-owners. Nothing prevents the general assembly from appointing substitute members who automatically take the place of the regular members who have ceased to sit on the union council, as vacations occur, in the order of their election if there are more than one, and until the expiry date of the mandate of the titular member they replace. The union council is no longer regularly constituted if more than a quarter of the seats become vacant. The trade union council certainly remains established, but the deliberations of the remaining members would no longer be valid. In this case, the syndic will have to convene a general meeting to fill the vacant seats.
Designation of members
The union council can be designated in three ways: 1. Designation by the regulation of co-ownership. It happens that the rules of co-ownership, while establishing a union council, also designates the members. The general assembly may revoke them, before that term, by a majority of the members of the union representing at least three quarters of the votes.2. Designation by the general assembly. This is the normal mode of designation of the union council. The votes must have the majority of the votes of all the co-owners (absolute majority). The appointment of the union council must be included in the agenda which is attached to the convocation. However, any applications do not need to be submitted in advance. The required majorities are as follows: - if they have been appointed by the same decision of the general assembly which instituted the union council, by a majority of the members of the union representing at least three quarters of the votes (reinforced absolute majority); - if they were appointed at another general meeting, by a majority of the votes of all the co-owners (absolute majority); in case this majority is not reached, the majority of the co-owners present or representatives (relative majority) is sufficient during a second general meeting convened for this purpose. Designation by the president of the district court. In the absence of the General Assembly's initiative, or if a decision of the general assembly does not meet the required majority, the designation of a trade union council may be requested from the president of the district court in which the general meeting is held. 'building. Recourse to the president of the district court can only be made for the appointment of the members of the union council, not for the institution of the latter which remains the exclusive competence of the general assembly if a trade union council is not provided for in the co-ownership regulations. The members of the union council appointed by order of the president of the court of prescription may also be dismissed at any time by the latter.
THE MISSIONS OF THE UNION COUNCIL
The functions of the trade union council are as follows: Assistance of the syndic The function of "assistance" of the syndic by the union council is nowhere defined. This assistance mission, which is the responsibility of the union council, is mainly based on an advisory role on the various aspects of management. Control of the management of the syndic The control of the management of the syndic by the union council concerns its regularity. This control is not limited to certain aspects of management, but covers the entire management, including the trustee's accounting, the distribution of expenses, the conditions under which contracts are made and executed, and all other contracts. It must also relate to the execution by the syndic of the decisions taken by the general assembly or the follow-up of the decided work. The legislation does not expressly provide that the union council must verify the accounts before the general assembly called to the approve, but it is difficult to see how he could do otherwise if he is to properly fulfill his mission. To ensure its control, the union council can ask the syndic to submit all the documents necessary for their assessment (contracts, specifications, invoices, bank statements, letters, etc.) and ask him for explanations. However, if the control of the union council concerns the regularity of the trustee's acts as well as the veracity of its written documents, it does not have to judge the appropriateness of its decisions or acts. This assessment is the exclusive competence of the general meeting. No text provides that the trustee is obliged to bring the documents in question to the place where the union council intends to meet. If need be, the latter must consult the documents on the spot at the trustee's. One or more members of the union council may consult at the trustee's office all documents, documents, correspondence, records relating to the management of the trustee, and so general, to the administration of the co-ownership. They can even make copies. However, such consultation on the premises of the syndic is subject to two conditions: the member or members of the union council in question must be specially authorized by the union council to do so, and the trustee must have been given prior notice. It is accepted that the trustee has an obligation to inform the council union to administer the building and that therefore he must convene the union council to inform him of the measures he intends to take or has taken. The union council may be assisted by "any technician of his choice ", so by an expert like eg an architect, a chartered accountant or even a lawyer. This faculty is not limited to its sole supervisory role but applies to all missions of the union council. The fees of these technicians constitute an administration fee charged to the co-ownership. The union council must not wish to replace the general assembly. If he suspects or discovers irregularities or negligence, he must request the convening of a general meeting; if he assumes a control mission of the trustee, he does not have to give him injunctions or to impose sanctions on him. Lastly, the liability of the members of the union council may be incurred if any damage is caused by his fault either to the co-ownership in the event of negligent enforcement of control, or to the syndic, for example, because of unfounded accusations. . Notice The union council gives its opinion to the syndic or to the general meeting on the matters for which it is consulted or which it has seized itself. This is a purely advisory role: the opinion, even compulsory, of the union council does not bind the syndic or the general assembly. The opinions may relate to any matter, provided however that it relates to the co-ownership. In a particular case, the opinion of the union council is obligatorily provided: in case of urgency, when the trustee must proceed on his own initiative to perform the work necessary to safeguard the building, he can not request the payment of a provision without prior deliberation of the general meeting in order to the opening of the site and its first supply only if it first takes the advice of the union council. The requirement for an opinion of the union council does not therefore concern the start of work, but is limited to the request for payment of a provision. Authorization to be given to the trustee In only one hypothesis, a real authorization of the union council is required: this is the case where the trustee intends to resort to a written consultation of the co-owners instead of convening a general meeting. This option is limited to decisions relating to the maintenance and repair of common areas, including the replacement of an out-of-service item with a more sophisticated facility. The use of this process must be authorized in advance by the union council, if there is one. Convocation of the general meeting The union council has the right to ask the syndic to convene the general meeting; in this case the trustee is obliged to proceed. Other missions In addition to the missions described above, which are expressly provided for by law, the general meeting of the syndicate of co-owners may, by a decision taken by an absolute majority, assign to it other missions or delegations which in this case must to be specifically determined. Missions of the president of the union council The law on the co-ownership grants specific missions to the president of the union council in case of absence or deficiency of the trustee, namely: - in the event that the syndicate is deprived of trustee, the president of the council union or, failing that, any member of the trade union council, convenes the general meeting to appoint the trustee - always in the event that the union is deprived of a trustee of the decisions taken by the union council to accomplish the day-to-day management until the entry of the new trustee is executed by the president of the latter - if either the union council or one or more co-owners representing at least a quarter of the votes of all the co-owners request the convocation of a general meeting and that the syndic does not proceed, this summons is made by the president of the union council, if there is one, after formal notice of The syndic has been unsuccessful for more than eight days. It is therefore appropriate for the union council, once constituted, to appoint one of its members as chairman if the co-ownership by-law or the general meeting has not provided for this. respect. Limits of the powers of the union council The syndic, except the above hypothesis where a real authorization of the union council is required, is not bound by the agreement or the disagreement of the latter, the trade union council having only an advisory role. The trustee is exclusively liable to the general meeting outside any other body whatsoever. Moreover, the union council can neither replace the syndic nor disturb him. If the union council abuses the management of the syndic and thereby causes him harm, the latter may bring the responsibility of the union council into operation on the basis of article 1382 of the civil code. As for the syndicate of co-owners, neither the approval nor the disapproval of a decision of the syndic by the union council can bind the general meeting, which alone remains sovereign to assess the acts of its agent, the syndic. Note that the general meeting may grant a delegation of power to the union council (as well as to any other person and even to the trustee) for an act or an expressly determined decision, but such a delegation of power may not under any circumstances deprive the general meeting of its power of control over the administration of the building and the management of the trustee. Lastly, the union council can engage its contractual responsibility towards the syndicate of co-ownership, respectively its tortious or quasi-delictual liability towards a co-owner for the faults committed in the exercise of its functions.