Change of trustee and co-ownership
The change of trustee within a co-ownership can be conflictual and difficult.
Indeed, when a trustee succeeds another one, this one must be given all the documents and funds of the co-ownership. The objective being that the new syndic is able to carry out his missions of administration and management of the building.
However, the syndic is often confronted with an unconcerned predecessor who refuses to hand over the documents and the funds of the co-ownership. But this one can just as well not give him all the documents. This can lead to the paralysis of a co-ownership, since without the handing over of the documents and funds, the syndic cannot act.
The firm advises you and accompanies you in your steps in order to ensure a complete, fast and effective handing-over of the elements and funds of the co-ownership.
What are the transmission deadlines in case of a change of trustee ?
Article 18-2 of the law n° 65-557 of July 10, 1965 sets the deadlines within which the former managing agent must transmit the documents of the co-ownership to the new one.
These deadlines differ according to the nature of the elements to be transmitted.
Thus, as from the date of cessation of his functions, fixed at the time of the general assembly appointing the new trustee, the deadlines are as follows:
Within 15 days: “the cash situation, the references of the syndicate’s bank accounts and the bank’s contact details”;
One month after : “all the documents and archives of the syndicate as well as, if necessary, all the dematerialized documents relating to the management of the building or the managed lots (…), in a downloadable and printable format. In the event that the syndicate of co-owners has chosen to entrust all or part of its archives to a specialized service provider, it is required, within the same time limit, to inform the service provider of this change by communicating the contact details of the new syndic”;
Three months after: “the statement of accounts of the co-owners as well as the statement of accounts of the syndicate, after auditing and closing.”
Also, insofar as, by December 31, 2020, all Syndicates of Co-owners must have a separate bank account, it is in principle no longer necessary to request the remittance of funds, but only the remittance of bank details.
Nevertheless, a request for the remittance of funds may exist in the following cases:
When the Syndicate of Co-owners has not opened any bank account,
When there is a succession of trustees.
What should the new managing agent do in case of non-delivery ?
The law of July 10, 1965, provides for a specific procedure to allow the new syndic appointed to be given all the documents and papers of the co-ownership.
This procedure takes place in two stages:
First step: sending a formal notice to the former syndic
Before any referral to the competent jurisdiction, you must send a formal notice to the former managing agent. This letter aims at requesting the handing-over of the documents and parts of the co-ownership.
In order to ensure the regularity and the effectiveness of the procedure, to resort to a lawyer represents the best solution for the drafting and the sending of such a letter.
Indeed, upon receipt of such a letter, the former trustee usually hands over the requested elements or informs about possible difficulties encountered. Nevertheless, without transmission of their part, it will then be necessary to seize the competent jurisdiction.
Second step: The summons in summary proceedings before the President of the Court
Considering the specificities of such a case, calling upon a lawyer in real estate and co-ownership law is fundamental. The call for a lawyer can come from :
The new syndic,
From the president of the syndicate council,
Or from the Syndicate of co-owners, according to jurisprudence.
Following this constitution, the lawyer then drafts a summons in order to ask the President of the Judicial Court to condemn the former syndic under penalty. The purpose of this measure is to force the former trustee to hand over any document belonging to the co-ownership.
The opinion of the jurisprudence on the change of syndic
The jurisprudence permanently reminds the imperative character of the obligation of handing over belonging to the former syndic. The Court even qualifies it as an “imperative obligation from which no circumstance can exempt him” (CA Paris, 14th chamber, section A, April 19, 2000 n°1999/2384).
In this respect, it should be noted that the burden of proof is on the former trustee.
This obligation is such that the Court of Cassation has ruled that it is up to the outgoing trustee to prove that he does not hold the documents which are claimed from him:
Either that they do not exist,
Or that they are not in his possession and that he cannot obtain them. (Cass. 3e civ, 5 December 2007, n°06-11.564 and Cass. 3e civ, 29 March 2011, n°10-14.159).
Do not hesitate to contact a lawyer of the firm specializing in these procedures. He will assist you and will make sure that the requests for transmission under penalty are formulated in a particularly clear and detailed way.