[The expert] Co-ownership: the mandate of the trustee
07 MAY 2019 | BY OUR REAL ESTATE EXPERT LEX THIELEN, COURT LAWYER
According to the amended law of 16 May 1975 on the status of co-ownership of buildings, co-ownerships are compulsorily represented and managed by a trustee. We will analyze below a number of the most important aspects of this trustee's mandate, namely his appointment and his remuneration, as well as the nature, duration and end of his mandate. Its tasks, the responsibility for its management and the scope of the discharge will be examined later, in separate articles.
Nature of the contract
The contract that binds the trustee to the syndicate of co-owners is a mandate contract. It implies a power to bind the principal ; thus, when the agent (in this case the trustee) contracts with a third party in the name and on behalf of his principal - the syndicate of co-owners - this contract is supposed to be concluded directly between this third party and the principal.
The mandate is an "intuitu personae" contract, that is, concluded because of the personal qualities of the other party. This implies that the trustee must personally carry out his mission. It can not therefore be substituted in its function or subcontract its mandate, even partially. But he can be represented by one of his agents.
Appointment of the trustee
Except in exceptional cases of appointment of a court trustee or provisional administrator, the trustee is compulsorily appointed by the general meeting of the syndicate of co-owners.
The majority required for the appointment of the trustee is the majority of all co-owners, ie. an "absolute" majority. This majority is 501 thousandths of the entire co-ownership, and not only 50% + 1 of the co-owners present or represented at the general meeting.
However, if this absolute majority is not reached, a new general meeting will be convened at which a majority of the co-owners present or represented is sufficient for his appointment, therefore a "relative" or "simple" majority, without quorum conditions.
Can the general assembly vote in a single vote on the trustee's appointment and the conditions of his mandate? In principle, each decision appearing on the agenda of the general meeting can only have one purpose. In addition, the decision on the appointment of the liquidator must be taken by an absolute majority, while its mandate, and in particular its remuneration, is determined by a relative majority.
Except in exceptional circumstances, such a single vote on the appointment of the trustee as on the terms of his contract will, however, in principle be recognized as valid by the judges in case of dispute, provided that the single vote meets the highest of the two required majorities. , namely the absolute majority.
Start of the mandate
The mandate, to come to life, requires the acceptance of both parties involved. A writing is not necessary to give birth to this contract. The trustee is appointed immediately and automatically at the same time as one of the parties has accepted the offer of the other. The physical signature of the contract is only the formalization of the contract and does not affect the very existence or the beginning of the mandate.
The trustee's mandate begins therefore:
> at the time when the general meeting expressed itself by a positive vote in the majority conditions required for the trustee, if the vote concerned an offer by the trustee;
> when the trustee has accepted the mandate proposed by the general meeting, if the latter has decided in the majority conditions required for a trustee who has not made a prior offer, or if the meeting The general court ruled in favor of conditions different from those proposed by the trustee.
The parties may, however, agree by mutual agreement to postpone the date of the assumption of office of the trustee by fixing it at a later date. In this case, the term of office will be counted from this effective date of office and not from the vote of the general meeting or the acceptance of the mandate by the trustee.
On the other hand, in spite of a contrary position adopted by certain authors, it seems to us difficult to be able to give a retroactive character to the mandate and to fix its beginning to a date preceding the general assembly. If a ratification by the general assembly of irregular acts due to an initially invalid mandate of the trustee is possible, on the contrary, a decision of the general assembly can not fix the date of entry into function of the trustee to a date prior to his regular appointment.
Mandate's duration
The duration for which the trustee is appointed can not exceed 3 years stack. It is important to note that a mandate granted by the general assembly for a duration greater than 3 years is not null; only the mandate ceases automatically on the precise day when the period of 3 years is over.
In principle, from the moment of expiry of the term of office, the trustee is dismissed and no longer has standing. However, the law of May 16, 1975 allows it to perform all acts of preservation in the interest of the union as long as its mandate has not been renewed or a new trustee has been appointed, and to convene the general meeting to fill the vacancy.
The trustee's mandate can not be tacitly renewed. The law on co-ownership is formal. A vote of the general meeting is required to meet the majority requirements to reinstate the trustee. A clause of tacit renewal in the trustee's contract would be null and void.
The mandate may however be renewed and this renewal may be repeated indefinitely for successive periods of up to 3 years. However, the renewal must be voted each time again by the general meeting, which, on this occasion, is also free to modify the terms of the contract, subject to the acceptance of the trustee.
Remuneration of the trustee
According to Article 1986 of the Civil Code, the mandate is in principle free, unless otherwise agreed. It is therefore necessary that before the acceptance of the mandate, there is an agreement of the trustee and the union of the co-owners on the fact that it is a remunerated mandate and it is necessary to specify also its amount as well as, preferably , the benefits to which this remuneration relates.
These details of the trustee's remuneration are necessary, not for the validity of the agency contract itself, but for the trustee's right to receive fees.
Thus, if special services must be invoiced separately from legal missions, the contract must expressly provide for this. Otherwise, the trustee may be refused the payment of these supplements, unless the syndicate of co-owners accepts them a posteriori. The same is true of the indexation of his fees, which can not be done if it is not expressly agreed.
Obligations of the trustee
The trustee has certain obligations to fulfill as part of his mandate. In particular, he has an obligation to advise on the co-ownership. This duty of advice includes firstly a good knowledge of the applicable legislation and the various legal obligations to which the co-ownership is subject. Examples of advisory duties include compliance with the legal requirements for insurance and safety, eg with regard to the requirements for elevators, or the local regulation of the place of residence. situation of the building.
As trustee, the trustee is also required to report on the performance of his duties to the general meeting. This accountability concerns not only its financial management of the co-ownership, but all acts performed in the exercise of its function.
Limits of the trustee's powers
It is important to know that the trustee's powers are limited, on the one hand, by the legal and contractual provisions and, on the other hand, by the destination of the parts of the building.
Thus the trustee will exercise all powers, but only the powers conferred on him by the legal and regulatory provisions, by the co-ownership regulations and by the general meeting of co-owners. As an agent he can not go beyond his mandate.
In addition, the trustee has jurisdiction only as regards the common parts of the building. He does not have to interfere in the management of the private parts. It is otherwise only if the common elements are affected by damage that originates in or affects a private part of the building.
Lastly, the trustee can not in any way encroach on the powers of the general meeting. It can not refuse to execute a decision taken by the general meeting because it has to judge neither their advisability nor their regularity, except to warn the general meeting of the possible irregularity.
In this context, it is necessary to point out an apparent conflict between, on the one hand, the trustee's obligation to ensure compliance with the co-ownership regulations and, on the other hand, his obligation to implement the decisions of the assembly. generally, if such a decision is contrary to the co-ownership regulations. In this case, the trustee must execute the decision of the general meeting. Indeed, the law does not invest it with a power of public authority to supervise the respect of the regulation of co-ownership; he carries out this mission on behalf of the syndicate of co-owners, as an agent of the latter. If his principal, therefore the syndicate of co-owners, decides to go against his own co-ownership rules, the trustee must respect and execute this decision.
End of mandate
The trustee's mandate may end in a variety of ways.
1. Expiration of term of office
The expiry of the term of office, which we have discussed above, in speaking of its duration, is evidently the usual mode of terminating the functions of the trustee.
2. Revocation
The trustee's mandate being an "intuitu personae" contract, he may be revoked at any time by a decision of the general meeting of the syndicate of co-owners, regardless of whether he has been appointed to fixed or indefinite term.
However, there is a difference between the revocation of a trustee appointed for an indefinite period and that of a fixed-term trustee with respect to the potential financial consequences of the revocation of such a mandate.
Indeed, if the syndicate of co-owners does not need to justify its dismissal in case of indefinite term of office and can not be held liable for damages because of this breach of contract - except where the revocation would be an abuse of law - it is different if the mandate is for a fixed term. In this case, the trustee may claim damages if the revocation is not justified by legitimate reasons, but it will obviously be up to him to prove both the unfairness of the revocation and the damage suffered.
3. Resignation
Then there is the resignation of the trustee. Just as the principal has the right to dismiss the agent, the latter can unilaterally terminate the mandate at any time by resigning. However, this resignation must not be abusive or prejudicial to the syndicate of co-owners.
If the trustee resigns without legitimate reasons, and thus causes injury to the syndicate of co-owners, the latter may claim damages. It would be the same in case of resignation without reasonable notice, unless the resignation is justified by serious misconduct of the syndicate of co-owners.
4. Other cases of end of the mandate
Another cause of termination of the trustee's mandate is the change of trustee. According to the law of May 16, 1975, the functions of the syndic cease automatically from the acceptance of his mandate by a new trustee appointed by the general meeting.
Finally, the death, liquidation, bankruptcy or trusteeship of the trustee are other reasons for termination of the mandate as well as the liquidation of the syndicate of co-owners, eg because of the meeting. all lots in the hands of one and the same owner.
Consult all our articles rights and immo laws
By Lex Thielen, Lawyer at the Court and author of the books "The professions of real estate in Luxembourg law", Editions Larcier, 2010, "The lease contract", Editions Promoculture / Larcier 2013, "All about real estate" , Editions Promoculture / Larcier (1st edition 2015, 2nd edition november 2016), "Immobilienrecht in Luxemburg, einfach erklärt" (Editions Promoculture / Larcier 2016) and " Construction law in Luxembourg "(Editions Promoculture / Larcier February 2018).