Fees wrongly deducted, minutes of general meetings with incomprehensible voting results, trustees re-elected when they should have given way: the professionals and associations representing the co-owners draw up a harsh conclusion at the end of the period of health crisis that has just passed.
For more than a year, due to the rules of social distancing, the general assemblies of co-ownership have indeed not been able to be held normally. Instead of the annual meeting during which all the co-owners come together to make decisions about the building, the assemblies were held by correspondence.
A form comprising boxes to be ticked according to the decision submitted to the vote was sent to the co-owners at the same time as the convocation of the meeting. In some cases, videoconference meetings were organized in addition to the postal vote. Today, “This is the end of this exceptional period: the trustees had until September 30, 2021 to hold their meeting in a purely dematerialized manner”, recalls Eric Audineau, lawyer at the Paris bar.
The law relating to the management of the exit from the crisis promulgated on May 31 had also made it possible, for a co-owner, to hold more than three powers if the total of the votes he had himself and those of his constituents did not exceed 15% of the votes, against 10% in normal times. These derogatory measures have also come to an end.
“This return to normal is good news: even if postal voting has been of great service to us and has enabled us to deal with urgent matters, major works have been blocked. It is very difficult to take important decisions without being able to talk to each other ”, notes Danielle Dubrac, president of the Union of real estate unions (United).
New voting habits
However, the return to normal is likely to be quite relative. “Some of the co-owners have become accustomed to voting by mail or participating in the meeting by videoconference and this will continue”, thinks Antonio Pinto, CEO of the Bellman condominium manager.
These new methods can allow people who did not come to the assembly and could not speak to do so. “But voting by post is not the same as participating in a meeting during which you can debate, and not coming back to the assembly presents the risk of losing sight of the issues”, fears Francis Bourriaud, general manager of Syndicalur, broker in trustee and council in co-ownership.
The co-owners retain, in fact, these new means of participating in the assembly, despite the end of the health emergency period. Article 17-1-A of the law of July 10, 1965, which governs condominium buildings, provides that co-owners can vote in four different ways: by physically attending the meeting, by giving a mandate to a co-owner or to a third party, by voting by correspondence, or, finally, by attending the meeting by an audio or video device if a general meeting has previously adopted the technical modalities. When convening a meeting, a mandate and a postal voting form must therefore be attached.
“These new means of voting risk creating confusion in the results of the assembly with possible legal challenges to the key”, worries Eric Audineau.
Another obstacle to the return to normalcy: some condominiums experienced irregularities in their management during this period. “A good part of the condominiums that I recommend have found errors or inaccuracies in the minutes of their general meetings”, testifies Francis Bourriaud. The same goes for the Association of Co-Ownership Managers (ARC), which denounces abuses on the part of the trustees in recent months, due to the impossibility of the co-owners to meet.
Control of the count
Postal voting poses the problem of checking the counting of the forms received. The trustee receives the bulletins and examines them alone without control of the co-owners or a third party, with the risk of errors that this entails. There can be no assurance that all ballots will be properly counted and that the result of the vote will be transcribed correctly.
“By consulting each other and checking their votes, some co-owners have, for example, found that the trustee had been re-elected according to the minutes of the meeting when he should not have been”, regrets Mr. Bourriaud, who believes that the small independent trustees have generally respected the rules better than the large groups.
In some cases, the voting forms were drafted in such a way as not to allow the co-owners to choose the term of office of the trustee who was thus re-elected for three years, the maximum period authorized, whereas the co-owners would have preferred a term of a year. The Association of Co-Ownership Managers (ARC) also reports forms that do not allow voting for a competitor of the trustee in place even if the co-owners had requested the inclusion of the resolution on the agenda.
Irregularities were also noted on the vote of the works. The trustees receive fees for ordering and monitoring the work voted on. But their amount must be defined by the assembly. Some trustees have taken advantage of the correspondence form to set these fees themselves.
“And in some condominiums, the work was voted in spite of the opposition of a majority of co-owners. Now, the co-ownership must launch a procedure to attack the assembly ”, indignant M. Bourriaud. The resumption of face-to-face meetings should make it possible to resolve these situations and restore order in the management of condominiums, which will have a lot to do in the coming months.