Tuesday, January 8, 2019

Co-ownership: which vote for the suppression of the post of concierge? (1)


Flickr Elisa Alvarez


Traditionally, the month of January is the month when one offers presents to his concierge. In condominiums, however, the concierge position is frequently removed. Under what conditions is it possible?
The law of 25 March 2009, known as the Boutin law, requires that the abolition of the janitor's post and the alienation of his dwelling be taken by the same majority, representing at least two-thirds of the votes.
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The law of 24 March 2014, known as the Alur law, requires that both questions be included in the agenda of the same general meeting.
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The provisions of the Boutin law are clearly not respected in the following case: on July 26, 2013, the general meeting of co-owners of the building Le Temple du Soleil at La Grande-Motte (Hérault), passed a resolution allowing it to from « proceed to the removal of the status of caretaker concierge. It does so by a simple majority, provided for by Article 24 of the law of 10 July 1965 on co-ownership, and not by a two-thirds majority.
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Qualified majority


The syndicate of co-owners then put to the vote a motion for a resolution providing for the rental of the concierge's dwelling, stating that it requires a two-thirds majority. This majority is not reached. On December 14, 2013, the question is reinstated on the agenda, and the rental is voted by simple majority.


Louise X, usufruitière of two lots, whose children are bare owners, assigns the syndicate of co-owners to the Tribunal de Grande Instance of Montpellier, to obtain the annulment of these two resolutions, explaining that they should have been taken the qualified majority, under the terms of article 26 f of the law of July 10, 1965. The court agrees on December 14, 2015.
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Status and position


The syndicate of co-owners is appealing. He explains that the co-ownership is facing significant financial difficulties that lead him to limit his expenses; that she wishes to have a building employee work full-time, to perform maintenance tasks, rather than a caretaker. He asserts that the first resolution allowed the "status" of the custodian to be changed, without removing the "position" of the custodian, so that a simple majority was sufficient. He added that letters were sent to the concierge, proposing a modification of his employment contract.


The Court of Appeal of Montpellier, which rules on September 11, 2018, confirms the judgment. She finds that " the alleged change in status has the direct and certain effect of the abolition of the guard post " and " the renting out of the dwelling has the effect of removing one of the essential attributes of the function of guardian of the residence ".


She adds that " the guard post, protected by the requirement of a qualified majority, is inseparable from a special status and an affected dwelling, which is not maintained by a salaried position to perform various tasks of guarding, maintenance and cleaning ". It states that " the economic difficulties invoked by the union do not affect the qualified majority requirement ".


Tomorrow, we will examine the case where the removal of the concierge post damages the destination of the building.
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Other articles from Sosconso: Prove that we got off the plane: the CJEU seized


or Happy Holidays !


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