Service charges in co-ownership: when the general meeting changes the apportionment, the regulations no longer count

Imagine: you own an apartment in Mandelieu-la-Napoule, in a building with central heating. For years, you have been paying your heating charges according to an apportionment key voted at the general meeting, different from that set out in the co-ownership regulations. One day, you challenge it: 'That's not what the regulations say!' But the general meeting approved the managing agent's accounts applying that apportionment. What to do? The Cour de cassation has ruled: as long as the general meeting's decision has not been annulled, it is binding on everyone. In other words, the co-ownership regulations are not an absolute rule if the general meeting decides otherwise, without challenge within the time limits.

The facts: a story that happens every day

SCI Carlina owned a unit in a building divided into co-ownership (co-ownership: a building divided into units owned by several persons) located in the 'Les Pradets au Mont-Dore' development. The co-owners' association (association: a legal entity grouping all co-owners) claimed payment of heating charges from it. Problem: the method of apportioning these charges was not that provided for in the co-ownership regulations (co-ownership regulations: the document setting out the operating rules and apportionment of charges). Indeed, the general meeting had previously adopted a different apportionment system, and the managing agent's accounts had been approved on that basis. SCI Carlina refused to pay, arguing that the association had no power to change the apportionment of charges. The matter went to court.

At first instance, the court ordered SCI to pay. SCI appealed (appeal: a challenge to a judgment before a court of appeal). The court of appeal upheld the order, holding that the earlier, unchallenged general meeting decisions were binding. SCI then appealed to the Cour de cassation (appeal to the Cour de cassation: a challenge to the correct application of the law). The Cour de cassation dismissed the appeal, upholding the court of appeal's reasoning. In other words, SCI had to pay the charges according to the voted apportionment, even if it did not comply with the original regulations.

This type of dispute is common. undefined, I have come across cases where co-owners challenged charges years after the approval of accounts, without ever having challenged the general meeting decisions. Result: they end up having to pay, with no possible recourse.

The reasoning of the court — dissected

The core of the Cour de cassation's reasoning rests on a simple principle: a decision of the general meeting (general meeting: the meeting of co-owners that takes decisions concerning the co-ownership) is binding on all co-owners as long as it has not been annulled by a judge. This principle is based on article 42 of the Law of 10 July 1965 (the law on co-ownership), which provides that general meeting decisions are enforceable as of right from their adoption, unless challenged within two months. In short, if you do not challenge a decision within two months of its notification, you can no longer challenge it later.

In this case, the general meeting had, by earlier unchallenged decisions, set a system for apportioning heating charges different from that in the co-ownership regulations. It then approved the managing agent's accounts (managing agent: the individual or legal entity that manages the co-ownership) on that basis. SCI Carlina had not challenged those decisions within the legal time limit. Consequently, it could not, in the context of an action for payment of charges, challenge the validity of the apportionment. The court of appeal had therefore legally justified its decision by ordering SCI to pay.

SCI argued that the association had no capacity to change the apportionment of charges fixed by the co-ownership regulations. But the Cour de cassation replied that the association had not changed the regulations: it had merely applied a general meeting decision relating to heating charges, a decision that had not been annulled. In other words, the general meeting can, within the scope of its powers, adopt different apportionment methods for specific charges, provided that this is not contrary to public policy or the rights of co-owners. However, note: if the decision had been abusive or contrary to law, it could have been annulled, but only if challenged in time.

This reasoning is consistent in case law: general meeting decisions benefit from a presumption of validity. This is not a departure, but a confirmation of a well-established principle. The courts are strict on challenge time limits.

What this changes for you — concretely

For co-owners, this decision has major practical implications. If you own a unit in Grasse or Mandelieu, and the general meeting votes an apportionment of charges different from that in the regulations, that decision binds you as soon as it is adopted. If you do not challenge it within two months (by an action for annulment before the tribunal judiciaire), you cannot challenge it later, even if you think it is unfair.

Concrete example: you own a 50 m² apartment in a co-ownership in Grasse. The regulations provide that heating charges are apportioned pro rata to the co-ownership shares (shares: co-ownership fractions). But the general meeting votes an apportionment based on heated area. If you do not challenge that decision within two months, you will have to pay according to that new key, even if it increases your share.

For owner-landlords (landlords: owners who let their property), this is a point of vigilance: if you are late in paying charges, the association can sue you for payment on the basis of the general meeting decisions, even if the apportionment is challengeable. You cannot defend yourself by relying on the co-ownership regulations if you have not challenged the decisions in time.

For purchasers (purchaser: a person who buys a property), before buying a unit, check the minutes of general meetings from the last few years. If decisions have changed the apportionment of charges, they will apply to you. You could inherit a heavier charge than provided for in the regulations.

Finally, for managing agents, this decision confirms that they can apply general meeting decisions without fear, even if they depart from the regulations, as long as they have not been annulled. But they must ensure that decisions are properly notified to co-owners to start the challenge period.

Four tips to avoid this type of dispute

• Check the general meeting decisions as soon as you receive them. As soon as you receive the minutes (PV) of the general meeting, read them carefully. If a decision changes the apportionment of charges or any other important point, do not let the two-month period pass without challenging it.
• Challenge in writing within the time limit. If a decision seems contrary to the co-ownership regulations or abusive, send a written challenge to the managing agent within two months of notification of the minutes. Better still: apply to the tribunal judiciaire to have the decision annulled.
• Keep all minutes and correspondence. Keep a record of all general meeting decisions and any challenges you make. In case of a dispute, these documents will be essential to prove that you acted in time.
• Consult a lawyer lawyer as soon as you have doubts. If you think a general meeting decision is illegal or abusive, seek advice quickly. A property lawyer can assess your chances of success and act within the time limits. In Grasse and Mandelieu, lawyer lawyers can assist you.

Further reading: related case law and developments

The 1988 decision is part of a consistent line. For example, in a judgment of 9 July 2003 (no. 01-14.576), the Cour de cassation recalled that general meeting decisions relating to charges are enforceable as long as they have not been annulled, even if they are tainted with irregularities. In other words, the challenge must be made quickly, otherwise all recourse is lost.

In another judgment of 27 January 2004 (no. 02-10.831), the Court specified that the approval of the managing agent's accounts by the general meeting amounts to implicit validation of the apportionment of charges applied, unless a co-owner has made express reservations at the meeting. Few people know: simply abstaining or voting against is not enough to preserve the right to challenge later. Written reservations must be made.

The trend of the courts is therefore clear: legal certainty prevails. Co-owners must be vigilant and reactive. For the future, the ALUR law (Law for Access to Housing and Renovated Urban Planning) of 2014 strengthened the information of co-owners (electronic notification, etc.), but the challenge period remains two months. Nothing has changed on the substance.

Summary and next steps

FAQ:

• Can I challenge a general meeting decision after two months? No, in principle the time limit is two months from notification of the minutes. After that, the decision is final.
• What if I discover an error in the apportionment of charges? First check whether the apportionment was voted at the AG. If so, and if the two-month period has not expired, challenge immediately. Otherwise, you are bound.
• Can the managing agent apply an apportionment that does not comply with the regulations? Yes, if an AG decision adopted it and it has not been annulled. The managing agent must execute the AG decisions.
• How do I challenge a general meeting decision? By a writ of summons (summons: a bailiff's document seising the court) before the tribunal judiciaire within two months. It is strongly recommended to consult a lawyer.
• What are the costs of a challenge? Lawyer's fees vary: a consultation may cost €150-300, and a full procedure several thousand euros. But it is better to pay for a consultation than to suffer unfair charges for years.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →