Reference decision: cc • N° 09-67.529 • 2010-06-23 • View decision →
Imagine yourself in Mandelieu-la-Napoule, in a pleasant block of flats with a lift. You own a nice ground-floor apartment with a private garden. Each month you receive a service charge demand including a sum for the maintenance of the lift. Yet you never use it. Is this normal? This is exactly the issue that arose in a case decided by the Court of Cassation on 23 June 2010 (n° 09-67.529).
Many co-owners wonder why they pay for facilities from which they derive no benefit. The Law of 10 July 1965 sets out the rules for apportioning service charges: special charges (such as the lift) must be apportioned according to the objective utility of the facility for each unit, and not simply according to the general co-ownership shares. But how does this principle work in practice?
The decision of 23 June 2010 sheds light: a clause in the co-ownership rules which apportions lift charges in proportion to rights in the common parts is not necessarily valid. It must be shown that this apportionment corresponds to the actual utility of the lift for each unit. Otherwise it can be challenged. Analysis.
The facts: a common occurrence
Mr X owns a unit in a co-ownership situated in Mandelieu. The building has a lift. The co-ownership rules, drafted in the 1970s, provide that the costs of repairing and maintaining the lift are apportioned among all the co-owners of the upper floors, in proportion to their shares in the general common parts. Mr X, whose unit is on the ground floor, challenges this apportionment. In his view, the lift is of no use to him since he does not need to go upstairs. He brings proceedings to have the apportionment key changed.
The Montpellier Court of Appeal, seised of the dispute, rules in favour of the co-owners' association. It holds that the clause in the co-ownership rules complies with Article 10, first paragraph, of the Law of 10 July 1965. That article provides that the costs of conservation, maintenance and repair of the common parts are apportioned among the co-owners in proportion to their rights in the common parts. The Court of Appeal therefore considers that the apportionment by shares is lawful.
But Mr X does not stop there. He appeals to the Court of Cassation, arguing that the Court of Appeal did not verify whether this apportionment was consistent with the utility that the lift provides for each unit. The stakes were high: if the Court of Cassation followed Mr X, it would mean that many co-ownerships would have to review their apportionment keys for lift charges, and potentially for other facilities.
The reasoning of the court — analysed
The Court of Cassation, in its judgment of 23 June 2010, quashes the Court of Appeal's decision. It holds that the Court of Appeal deprived its decision of a legal basis. In other words, the lower court did not sufficiently give reasons for its decision. More specifically, the Court of Appeal merely noted that the clause complied with the wording of Article 10, first paragraph, which provides for apportionment according to rights in the common parts. But it did not consider whether this apportionment was consistent with the utility criterion set out in the second paragraph of the same article for special charges.
To understand this, one must distinguish between two types of charges under the Law of 10 July 1965:
- General charges (Article 10, first paragraph): these relate to the conservation, maintenance and repair of the common parts. They are apportioned according to each co-owner's rights in the common parts (i.e. the shares). Example: cleaning of common parts, electricity for corridors.
- Special charges (Article 10, second paragraph): these relate to collective services and common equipment items (such as the lift, boiler, entry phone). They are apportioned according to the utility that these services or equipment provide for each unit. Utility is assessed objectively: a ground-floor unit does not have the same utility from the lift as a unit on the top floor.
The Court of Cassation recalls that, for lift charges, these are special charges. Consequently, their apportionment must be based on utility, not solely on shares. In this case, the Court of Appeal did not verify whether the apportionment by shares actually corresponded to the utility of the lift for each unit. It therefore violated the law.
What few people know is that this decision is part of a consistent line of case law from the Court of Cassation. For several years, it has been ensuring that special charges are apportioned fairly, according to actual use. In other words, a ground-floor co-owner should not pay the same as a 5th-floor co-owner for the lift, unless the co-ownership rules expressly so provide and justify it.
What this means for you — practically
This decision has important implications for all co-owners, whether they are landlords, occupiers or purchasers. Here is what you need to know depending on your circumstances:
- For the co-owner who does not use the lift (ground floor, basement, or unit with direct access): you can challenge the apportionment if it is based solely on shares. You must show that the lift is of no utility or of lesser utility to you. For example, in Sophia-Antipolis, a commercial unit on the ground floor of an office building with a lift may be billed for maintenance even though the lift only serves the upper floors. In such a case, legal action could reduce your share.
- For the managing agent: you must check the compliance of the co-ownership rules, particularly for lift charges. If the apportionment key does not take account of utility, you risk challenges. It is prudent to have a modification of the apportionment voted at a general meeting, with a key based on floor level or number of units served.
- For the purchaser: before buying a unit, examine the co-ownership rules and the apportionment keys for service charges. If you are buying a ground-floor unit, check that you will not be paying an excessive share of lift costs. Ask the seller for the service charge demands of the last three years to identify any anomalies.
Example with figures: take a co-ownership of 10 units, with a lift. The annual maintenance cost is €6,000. With an apportionment by shares (each unit has 100/1000ths), each unit pays €600. But if utility is taken into account: the 2 ground-floor units pay €0 (no utility), the 2 first-floor units pay €300 each (less use), the 3 second-floor units pay €600, and the 3 third-floor units pay €900. That is an annual saving of €600 for the ground-floor units.
If you are in this situation, you must act quickly. In matters of co-ownership service charges, actions to challenge are subject to a 5-year limitation period from the general meeting decision or the service charge demand. Do not wait.
Four tips to avoid this type of dispute
- Check your co-ownership rules: read carefully the clause relating to lift charges. If it provides for apportionment according to shares without mentioning utility, it is potentially challengeable. Consult a lawyer lawyer to assess its validity.
- Have a modification voted at a general meeting: if the apportionment is unfair, propose a resolution to adopt a new key based on utility (for example, by floor level or number of units served). Gather the co-owners concerned to obtain the required majority.
- Keep all evidence of non-use: if you challenge, gather evidence showing that you do not use the lift (absence of a fob, witness statements, photographs). This will strengthen your case.
- Consult a lawyer promptly: if the co-owners' association refuses to change the apportionment, legal action may be necessary. Act quickly to avoid being time-barred.
Further reading: related case law and developments
This decision is part of a line of Court of Cassation judgments protecting co-owners against unfair apportionments. For example, in a judgment of 4 June 2009 (n° 08-14.821), the Court had already overturned a Court of Appeal that had not verified the utility of a lift for a ground-floor unit. More recently, a judgment of 14 February 2019 (n° 17-31.356) recalled that the apportionment of lift charges must be proportionate to the extent of use.
The trend in the courts is clear: they require a concrete analysis of the utility of the facility for each unit, and do not accept a general clause. This means that flat-rate apportionments or those based solely on shares are increasingly being challenged. In the future, we can expect the courts to go even further, requiring the co-ownership rules to specify the utility criteria explicitly.
Key points to remember
- Lift charges are special charges: their apportionment must be based on objective utility for each unit, not just on shares.
- A contrary clause in the rules can be challenged: if it provides for apportionment according to shares alone, without any link to utility, it is potentially void.
- The time limit for action is 5 years: from the occurrence of the harm (unjustified service charge demand).
- The burden of proving lack of utility is on you: gather concrete evidence (no access, no use).
- A modification at a general meeting is possible: with the majority required by Article 26 (double majority) or Article 24 (simple majority) depending on the type of change.
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