Balconies in Shared Ownership: No Need for Personal Injury to Act Against an Unauthorised Veranda

Imagine: you own a flat in Villeurbanne, with a beautiful view over the park. One day, your downstairs neighbour decides to enclose his balcony with a veranda. You find it unsightly, but you think to yourself: "after all, it's his balcony, he can do what he wants." Wrong. The balcony is very often a common part, even if its use is private. And if the co-ownership regulations prohibit any construction, even a light one, no co-owner may build a veranda without the consent of the general meeting. But who can act? Does one have to prove damage? This is where the decision of 29 January 2003 of the Court of Cassation changes everything.

This decision, handed down in a case concerning a building in Lyon, provides a clear answer: a co-owner can demand the removal of a veranda built on a balcony, without having to demonstrate that he suffers personal and special damage, distinct from that of the community of co-owners. In other words, the mere violation of the co-ownership regulations is sufficient to found the action. A godsend for co-owners concerned with compliance with the rules, but a serious warning for those tempted to encroach on common parts.

In this article, we will dissect this decision, understand what it changes for you, and give you practical advice to avoid or manage this type of dispute. Whether you are an owner, tenant or property professional, you will find concrete answers here.

The Facts: A Story That Happens Every Day

We are in a building in shared ownership in Lyon. The co-ownership regulations, dating from the construction, are clear: the balconies are common parts, and it is forbidden to erect "any construction, even light" on them. A co-owner, whom we will call Mr X, owner of a flat on the 2nd floor, nevertheless decides to have a veranda built on his balcony. He installs a glass structure, turning his balcony into an extra room, without any authorisation from the general meeting of co-owners.

Another co-owner, Mr Y, contests this construction. He considers that it violates the co-ownership regulations and that it harms the harmony of the building. He sues Mr X to obtain the demolition of the veranda. The Tribunal de grande instance of Lyon finds in favour of Mr Y and orders the removal of the veranda. Mr X appeals.

The Lyon Court of Appeal upholds the judgment. But Mr X does not give up: he appeals to the Court of Cassation. His main argument? Mr Y has not demonstrated that he suffers personal and special damage, distinct from that of the community of co-owners. According to him, to bring legal proceedings, one must prove an interest in acting, i.e. concrete damage. However, the veranda does not directly affect Mr Y's flat, nor his view, nor his enjoyment. Therefore, his action would be inadmissible.

The Court of Cassation, in its judgment of 29 January 2003, rejects this reasoning. It considers that the Court of Appeal correctly decided that Mr Y's action was admissible, without him having to demonstrate personal and special damage. Why? Because the violation of the co-ownership regulations itself constitutes an interference with the rights of all co-owners. Each co-owner has a legitimate interest in ensuring that the common rules are respected, even if he does not suffer any particular consequences.

The Reasoning of the Court — Analysed

To understand this decision, we must go back to the basics of co-ownership law. In France, co-ownership is governed by the Law of 10 July 1965. This law establishes that common parts (such as balconies, roofs, corridors) belong to all co-owners. The co-ownership regulations, the document that organises the life of the building, may specify the rights and obligations of each. In our case, the regulations prohibited any construction on balconies.

Article 1240 of the Civil Code (formerly 1382) provides that "any act of man, which causes damage to another, obliges the one by whose fault it occurred to repair it." In principle, to bring a claim in tort, one must prove fault, damage and a causal link. But here, the Court of Cassation makes a particular application: the violation of the co-ownership regulations is a fault, but the damage is not individual; it is collective damage, suffered by the co-ownership as a whole.

However, each co-owner has an interest in acting for the protection of the common parts, because they are the undivided property of all. The Court of Cassation recalls that a co-owner's action for the removal of an unlawful construction on a common part is admissible, without him having to justify personal and special damage. In clear terms, it is not necessary to prove that you are losing rental value or that your view is obstructed: the mere interference with the common rule is sufficient.

This reasoning is part of a logic of protecting the collective interest. If each co-owner had to demonstrate individual damage, many violations would remain unpunished for lack of a direct victim. The Court of Cassation has therefore chosen to facilitate legal actions to enforce the co-ownership regulations. However, be careful: this solution is not automatic. It assumes that the co-ownership regulations clearly qualify the balcony as a common part and prohibit constructions. If the balcony is a private part, the situation changes.

The lower courts (Court of Appeal) had found that the co-ownership regulations indeed provided that balconies were common parts and that it was forbidden to erect any construction, even light. Therefore, the veranda constituted a flagrant violation. The Court of Cassation validated this reasoning, without adding any additional requirement.

What This Changes for You — Concretely

This decision has important practical implications for all property actors. Let's look at them profile by profile.

For co-owners: If you notice that a neighbour has built a veranda, a pergola, or even a simple planter on a balcony, and the co-ownership regulations prohibit these installations, you can take legal action without having to prove that you suffer damage. For example, in Annecy, if your neighbour on the 3rd floor installs a veranda on his balcony overlooking the lake, you can demand its demolition, even if your own flat does not have an obstructed view. The mere violation of the regulations is sufficient. This is a powerful tool to enforce the rules.

For landlord owners: If you own a flat that you rent out, and your tenant installs a veranda without authorisation, you are responsible as the owner. You could be sued by the co-owners' association or by another co-owner. It is therefore essential to remind your tenants of the restrictions of the co-ownership regulations and to regularly check the state of the premises. undefined, I have come across cases where a tenant had transformed a balcony into a veranda without the owner knowing, which led to legal costs and a demolition order at the owner's expense.

For buyers: Before buying a flat, check the co-ownership regulations and the condition of the common parts. If a balcony is enclosed by a veranda, ensure that this construction was authorised by the general meeting. Otherwise, you could be forced to demolish it at your own expense after the purchase. A concrete example: a buyer in Villeurbanne bought a flat with a veranda on the balcony, thinking he was gaining an extra room. The syndic later demanded demolition, and the buyer had to pay €15,000 for work and €3,000 in legal fees.

For property professionals: estate agents, notaries, co-ownership managers, be vigilant during viewings and diagnostics. Report any suspicious construction. A failure to inform may engage your liability.

Four Tips to Avoid This Type of Dispute

• Consult the co-ownership regulations before any project: Before installing a veranda, pergola or even an awning, check the co-ownership regulations to see if the balcony is a common part and if there are restrictions. If the regulations prohibit any construction, refrain. If in doubt, ask the syndic or a lawyer for advice.
• Obtain authorisation from the general meeting: Even if the regulations are silent, any modification of the common parts or the external appearance of the building requires authorisation from the general meeting of co-owners. Convene a meeting and have your project placed on the agenda. A majority (often the double majority under Article 26) is required.
• Use a professional for the work: If you obtain authorisation, have the work carried out by a qualified professional, complying with planning and construction rules. Keep all invoices and authorisations. In the event of a dispute, you will have evidence.
• React quickly in case of violation: If you notice an unlawful construction by a neighbour, do not wait. The longer you delay, the harder it will be to obtain demolition. First send a letter to the syndic, then, if nothing happens, take the matter to court. The limitation period (time to act) is 10 years for abnormal neighbourhood disturbance, but it is better to act quickly.

Further Reading: Related Case Law and Developments

This 2003 decision is part of a consistent line of case law from the Court of Cassation. Already, in a judgment of 8 July 1992 (No. 90-21.274), the Court had held that a co-owner who has built a construction on a common part without authorisation may be compelled to demolish it, even if no damage is demonstrated. The 2003 decision confirms and clarifies this principle.

More recently, the Court of Cassation has extended this reasoning to other types of encroachments. For example, in a judgment of 12 September 2019 (No. 18-18.421), it held that a co-owner's action for removal of a privatised terrace on a common part is admissible without personal damage. The trend is therefore clear: judges protect the integrity of common parts and facilitate actions by co-owners.

However, be careful: this case law does not apply if the balcony is a private part. In that case, the co-owner may freely fit it out, unless the co-ownership regulations or the specifications prohibit it. It is therefore crucial to check the qualification of the balcony in the regulations. A recent legislative development, the ALUR law of 2014, strengthened the powers of the co-owners' association to enforce the regulations, but did not modify this principle.

In Practice: What to Do

FAQ:

• Q: Can I install a veranda on my balcony if the regulations prohibit it?
  A: No, even if you own your flat, the balcony is often a common part. You must obtain authorisation from the general meeting. Otherwise, you risk a demolition action.
• Q: What should I do if my neighbour installs a veranda without authorisation?
  A: First contact the syndic. If the syndic does not act, you can take the matter to the judicial court to obtain demolition. You do not have to prove personal damage.
• Q: What are the time limits for acting?
  A: The action for demolition for violation of the co-ownership regulations is subject to a 10-year limitation period from the construction. However, it is advisable to act quickly to avoid additional costs.
• Q: What does the owner of an unlawful veranda risk?
  A: He risks being ordered to demolish the veranda at his own expense, and possibly damages. Legal costs can amount to several thousand euros.
• Q: Can a tenant install a veranda?
  A: No, without the agreement of the owner and the co-owners' association. The tenant must comply with the co-ownership regulations. In case of infringement, the owner may be held liable.

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