A union adviser who abuses his functions can be harshly condemned

A condominium trustee and the president of a union council have just been ordered to pay jointly 158,000 euros to co-owners injured by their actions.

While the general rule is that the trade union council, a body without legal personality, cannot be sued, this is not necessarily the case for its individual members. Me Jean-Philippe Mariani, lawyer, and Bruno Lehnisch, legal framework, who regularly feed a blog dedicated to co-ownership law, thus spotted this very recent decision of the judges of Nanterre (dated February 1).

The latter very severely condemned a president of the union council and the trustee of a building in Boulogne-Billancourt to jointly pay 158,000 euros (half each) to a couple of co-owners in dispute with them. The sum is divided between 145,000 euros in compensation for the loss of value of the property, 8,000 euros in moral damage and 5,000 euros in legal costs.

The judges considered in this case that the president of the union council had clearly acted with the intention of harming her neighbors and had manipulated the general assembly. In this case, it was an infamous story of jealousy between neighbors and abuse of power by the union council to settle this personal matter. The president of the union council had prepared a resolution allowing the trustee to take legal action to order the demolition of a veranda installed on the 11th floor of the condominium, on a terrace. It was, according to her, built illegally. However, this construction had been unanimously authorized by the co-ownership 20 years earlier, at a time when the current president of the union council was already a member of this body and had approved this construction.

Quasi-immunity

The judges were not fooled, as noted in their judgment MM Mariani and Lehnisch: “The forgetting alleged by Mrs Y of the existence of this authorization, justified according to the latter by the lapse of a period of more than twenty years appears however to be selective, to relate only to the authorization, but not to the very existence of the veranda. “ The trustee, for his part, was guilty of managing the demolition procedure without making sure in the archives of the co-ownership that the construction of this veranda had been authorized.

The Hauts-de-Seine court finally holds that “The faulty approach of the President of the Union Council consisting in asking the trustee to include a resolution on the agenda of the general meeting of 01/12/2013, authorizing the latter to take legal action to remit cause an acquired right of the latter, does not fall within the usual mission of a member of the union council, but appears by its seriousness, detachable from his usual mission, fully engaging his responsibility “ (TJ de Nanterre, Feb. 1, 2021, n ° 17/06746).

The responsibility of a member of the union council can in fact only be engaged if he has exceeded his functions. The general rule, for this precious voluntary work carried out overwhelmingly in the collective interest of the co-ownership, consists rather in guaranteeing quasi-immunity to the members of the union council. This is what the Ministry of Justice recalls on August 27, 2020, in response to a question asked by Senator Yves Détraigne, specifying that this quasi-immunity applies to “acts performed in the exercise of their functions»: Namely assisting the syndic of the co-ownership, controlling its management and advising the syndicate on all questions, for which it is consulted or which it takes up itself. Thus, a negligence in the control of the accounts or an ill-advised advice, does not really engage its responsibility.

Insurance compensation

The same is not true, however, if the union advisers act in bad faith or commit a sufficiently serious fault (such as fraudulent collusion with the trustee). In these cases, there have already been sentences, lighter, in the past, such as this union adviser condemned by the Poitiers Court of Appeal in 2007 (CA Poitiers, 3rd civ. Ch., Jan. 17, 2007, no. ° 06/01197) to 3,800 euros in damages for defamatory remarks against the guardian of the residence. Or again this other union council president condemned jointly and severally with his trustee (CA Nancy, Nov. 17, 2015, n ° 15/02361) to 4,000 euros in damages for having sued a “Strictly personal interest”.

Me Jean-Philippe Mariani and Bruno Lehnisch also note that the convicted union advisers probably cannot use the “civil liability” insurance of the condominium to settle the damages. Indeed, insurance companies generally exclude detachable actions from the legal missions of the union council.

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