Co-ownership dispute: going to the justice of the peace, counting the deadline, trying conciliation

The minutes have just arrived and you read the item on the works twice: the majority announced does not look as if it was reached. Or the property manager (syndic) has not called a meeting for a long time, a statement remains disputed without an answer, a neighbour encloses their terrace without permission. Sooner or later the question arises: should you go to court, and to which court?

In Belgium, for a co-ownership dispute, it is the justice of the peace (vrederechter / juge de paix). The law of 18 June 2018, which came into force on 1 January 2019, gave this judge all disputes relating to the co-ownership of buildings, whatever the amount claimed. Let us say it straight away: the most dangerous point is not the procedure, it is the calendar. A missed deadline closes the door, even on a well-founded claim.

This page explains who can bring a co-ownership matter before the justice of the peace, for what, within which deadlines, and which solutions to try first. It belongs to the section on co-ownership law. For neighbour disputes that do not fall under the co-ownership rules, see also disputes between co-owners.

The justice of the peace, the only court with jurisdiction over co-ownership

The Judicial Code, as amended by the 2018 law, gives the justice of the peace jurisdiction over disputes relating to the forced co-ownership of buildings or groups of buildings, whatever the amount at stake. A EUR 50,000 dispute over roof works therefore goes to the justice of the peace, even though this judge's general jurisdiction is limited to claims not exceeding EUR 5,000.

Two clarifications. First, a clause in the articles of association that refers disputes to an arbitrator is deemed unwritten (Article 3.85, § 5): you cannot be deprived of access to a judge. Second, an appeal against a judgment of the justice of the peace is brought before the court of first instance, except where the judgment is given at final instance because of the small amount of the claim.

Who can go to the justice of the peace, and for what?

The Civil Code opens the action to several persons, each for specific claims. The right reflex is to start from your position in the building.

You are a co-owner and a decision harms you: you can ask for it to be annulled or amended. The same article allows you to ask the court to call a meeting if the syndic neglects or wrongfully refuses to do so, to authorise you to carry out urgent and necessary works, or to correct the shares or the apportionment of charges (Article 3.92, §§ 3, 4, 5 and 7). For matters concerning only your unit, you can act alone, after informing the syndic (Article 3.92, § 1).

The dispute concerns the building as a whole: it is then the owners' association (VME/ACP), represented by the syndic, that acts, as claimant or defendant. Recovery of charges is the most common example (Articles 3.92, § 1, and 3.86, § 3). Urgent or protective claims concerning the common parts can be brought by the syndic, subject to ratification by the meeting.

The co-ownership is sinking: where its financial balance is seriously compromised or the building can no longer be preserved, the syndic or co-owners holding at least one fifth of the shares can request the appointment of one or more provisional administratorsGlossaryPerson appointed by the court, at the request of the syndic or of co-owners holding at least one fifth of the shares, when the financial balance of the co-ownership is seriously compromised or the building can no longer be preserved. See the glossary (Article 3.92, § 2).

Nobody is in charge any more: if the meeting does not appoint a syndic, any co-owner or any interested third party can ask the court to appoint one (Article 3.89, § 1).

You are a tenant or occupant without voting rights: you can ask for the annulment or amendment of a provision of the house rules or of a decision that causes you specific harm (Article 3.93, § 5).

The case of a blocked majority deserves a mention. Where a minority wrongfully prevents the meeting from taking a decision by the majority required by law, any co-owner who suffers harm can ask the court to take the place of the meeting and make the decision instead. And a co-owner can obtain authorisation to carry out useful works at their own expense when the meeting opposes them without good reason.

The action for annulment: four months and personal harm

This is the most frequent remedy. It targets a decision of the general meeting that is:

• irregular, for example adopted without a quorum, by an insufficient majority or on an item not on the agenda;
• fraudulent, meaning obtained by deceitful manoeuvres;
• abusive, where the majority uses its power against the collective interest or to the detriment of a co-owner without legitimate reason.

Two conditions frame the action for annulmentGlossaryLegal action by which a co-owner asks the court to annul or amend an irregular, fraudulent or abusive decision of the general meeting that causes them personal harm. It must be brought within four months of the date of the meeting. See the glossary. The decision must cause you personal harm, and the action must be brought within four months of the date of the meeting. The court may annul the decision or amend it. The method for building your challenge, from spotting the irregularity to writing to the syndic, is set out in detail in challenging a GM decision.

Should you try mediation or conciliation first?

The law does not require any prior attempt at amicable settlement for co-ownership disputes. Two tools nevertheless deserve consideration, because they often resolve the substance faster than a trial and preserve relations in the building.

Conciliation at the justice of the peace's registry

Conciliation is free. You request it by ordinary letter, or orally, at the registry of the justice of the peace, giving your details, the identity and address of the other party, a statement of the facts and what you are seeking. The judge summons the parties and tries to bring them together. If they agree, the judge draws up a record that has the same value as a judgment.

Mediation

MediationGlossaryVoluntary method of resolving disputes in which a neutral third party helps the parties reach an agreement. You can choose a mediator accredited by the Federal Mediation Commission, and the agreement can be approved by the court so that it becomes enforceable. See the glossary is voluntary. You choose a mediator together, preferably one accredited by the Federal Mediation Commission, which keeps the register of accredited mediators. Fees are set by agreement and are usually split equally. The agreement reached can be approved by the court, which makes it enforceable.

In a dispute over the interpretation of the articles of association or the apportionment of charges, mediation often makes it possible to renegotiate the key itself, which an annulment judgment does not do. Our reading: if you will have to keep passing the other party on the stairs, start with conciliation at the registry. It is free, and its record is worth a judgment. Simply keep an eye on the four-month deadline in the meantime.

How do proceedings before the justice of the peace work?

The ways of starting proceedings are those of any case before the justice of the peace:

1. the writ of summons, served by a bailiff;
2. the inter partes application, filed at the registry, where the law allows this form;
3. voluntary appearance, where both parties appear together before the judge.

The claim must be directed against the right party. If you are challenging a meeting decision, the owners' association is the defendant, represented by the syndic, and not the syndic personally. The syndic must then inform the co-owners without delay of the action brought against the association.

During the proceedings, the challenged decision in principle continues to apply. There is one exception for the total demolition and reconstruction of the building voted for reasons of health or safety: the association must then itself refer the matter to the justice of the peace within four months of the meeting, and enforcement of the decision remains suspended until a final court decision (Article 3.92, § 1).

Who pays the costs?

A co-owner whose claim against the association is held entirely well founded by the court is exempt from any contribution to the common expense for fees and costs, which is shared among the other co-owners. The law refers to a claim held entirely well founded: a partial victory is not enough to trigger this exemption.

Anyone who asks the court to call a meeting or to authorise urgent works is also released from any liability for damage resulting from the absence of a decision, provided their claim is not dismissed (Article 3.92, § 6).

If the dispute concerns unpaid charges, the procedure follows its own logic, from formal notice to judgment; it is described in co-owner not paying. Your rights as a co-owner before any dispute arises are brought together in co-owners' rights and obligations.