Reference Decision: cc • No. 99-16.059 • 2000-12-20 • View the decision →
Imagine you own a shop in Biscarrosse, in a commonhold with flats above. Your unit has its own emergency exit opening directly onto the street, and you never use the building's main entrance with its keypad entry system. The managing agent sends you a demand for your share of the keypad entry system and refuse chute charges. You think: "But why should I pay for equipment I don't use?" This is exactly the question a co-owner asked in a similar case.
This situation, common in tourist residences in the Landes where shops and dwellings are mixed, raises a recurring problem: how to fairly allocate common charges when some co-owners appear to use the facilities less? Should payment be proportional to use, or according to other rules? The answer is not always intuitive.
A Court of Appeal decision, handed down in 2000 but still relevant today, provides essential clarifications. It specifically concerns participation in keypad entry system and refuse chute charges for a co-owner whose premises had an independent emergency exit. What the judges decided may well surprise you, and change how you approach these issues in your own commonhold, whether you're in Parentis-en-Born, Mont-de-Marsan or elsewhere.
The Facts: A Story That Happens Every Day
The story begins with the company Centre d'affaires Félix-Faure (CAFF), owner of several commercial units in a commonhold building. Like many shops in the town centre of Biscarrosse, these premises were on the ground floor, with a particularity: they had an emergency exit opening directly to the outside, without going through the building's main entrance.
The company CAFF used this emergency exit as the main access to its premises. Result: it never went through the building entrance, and therefore never needed to use the keypad entry system installed there. Similarly, for its waste, it had set up a specific collection system, without using the common refuse chute of the commonhold.
When the managing agent presented the allocation of charges, including a share for the keypad entry system and refuse chute, the company CAFF challenged it. Its argument was simple: "I don't use these facilities, so I shouldn't pay for them." It refused to pay these charge items, considering they did not concern it. The managing agent, for its part, maintained that these charges were common to all co-owners, regardless of their personal use.
The conflict escalated, leading to legal proceedings. The company CAFF applied to the court to request the nullity of the clauses in the commonhold regulations that provided for its participation in these charges. It considered this allocation unfair, even abusive. But would the judges agree? The case was taken on appeal, resulting in a decision that is now a reference.
The Court's Reasoning — Analysed
The Court of Appeal examined the case carefully, and its reasoning is instructive. First, the magistrates noted a material fact: the emergency exit of the company CAFF's premises did indeed open into the building entrance. In other words, even if this exit was secondary, it was part of the same common space as the main entrance.
Next, the judges looked at the legal nature of the charges in question. They recalled that charges relating to the keypad entry system and refuse chute constitute general charges (expenses common to the entire commonhold) relating to the preservation, maintenance and administration of the common parts. It is not because a co-owner does not personally use a facility that they do not benefit from it indirectly.
The legal basis is crucial: Article 10 of the Law of 10 July 1965, which governs commonholds. This article provides that all co-owners must participate in general charges proportionally to the relative value of their private parts. The court emphasised that the commonhold regulations of the building precisely respected this provision.
But what exactly does this change? In short, the court considered that the mere fact of having an independent emergency exit was not sufficient to exempt a co-owner from participating in common charges. The argument of non-personal use was rejected. The judges considered that the security and salubrity of the building as a whole benefited everyone, including those with other access points.
In this case, the company CAFF had also challenged other charges, such as those for water. On this point, the court made a distinction: it annulled the allocation for water, recognising that this charge could be individualised. But for the keypad entry system and refuse chute, it confirmed that these were indeed general charges, to be borne by all co-owners according to the legal rules.
What This Means for You — Practically
If you are a co-owner of a commercial unit or dwelling with independent access, this decision directly concerns you. Take a concrete example in Parentis-en-Born: you own a ground-floor studio with garden access, and you never use the entrance hall or keypad entry system. Yet, you will have to contribute to the charges for these facilities.
Why? Because case law now clearly considers these charges to be indivisible (cannot be separated between co-owners). Even if your use is nil, you benefit from the overall security of the building and the salubrity ensured by the refuse chute. undefined, I have handled cases where owners refused to pay these charges, arguing they had their own security system. They ultimately had to regularise their situation, sometimes with late payment surcharges.
If you are a tenant, be careful: your landlord will likely pass these charges on to you via service charges. Check your tenancy agreement and annual statements carefully. For a purchaser, this decision means you need to examine the commonhold regulations carefully before buying. If you buy a unit with independent access, don't imagine you will escape common charges.
Practically, how much can this represent? For a keypad entry system with maintenance and possible replacement, allow €150 to €300 per year for an average unit. The refuse chute can add €100 to €200. This is not negligible, especially in small commonholds in the Landes where budgets are tight. But refusing to pay exposes you to legal action by the managing agent, with interest on arrears and recovery costs.
Four Tips to Avoid This Type of Dispute
- Read your commonhold regulations carefully before any purchase: Check how charges are allocated, particularly those for the keypad entry system and refuse chute. If you have independent access, request written clarifications from the managing agent or seller.
- Participate in general meetings: This is where budgets and charge allocations are decided. If you consider a charge should be individualised (like water in the CAFF case), propose it at the meeting, with technical and financial justifications.
- Document your exchanges with the managing agent: In case of disagreement over a charge, communicate in writing (email, registered letter). Keep a record of your arguments and responses received. This will be valuable in case of litigation.
- Consult a professional before refusing a charge: A specialised solicitor can help you assess whether your challenge is well-founded. Refusing a charge without a solid legal basis can cost more in legal fees than in savings made.
Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.
Further Analysis: Related Case Law and Developments
This 2000 decision fits into consistent case law. Already in 1995, the Court of Cassation had recalled that lift charges must be borne by all co-owners, even those on the ground floor who don't use it. The reasoning is similar: it is a common facility serving the building as a whole.
More recently, decisions have confirmed this approach for other facilities like collective aerials or central heating systems. The trend in the courts is clear: favour solidarity between co-owners rather than excessive individualisation. What few people know is that this philosophy aims to preserve commonhold cohesion and avoid multiple disputes.
For the future, this case law means that co-owners can no longer easily avoid common charges by invoking their non-personal use. Managing agents increasingly rely on these decisions to justify their allocations. However, for truly individualisable charges (like water, electricity for private parts), the courts continue to require allocation based on actual use.
In Practice: What to Do
Here is a checklist to guide you if you find yourself in a similar situation:
- Identify the nature of the disputed charge: Is it a general charge (common to all) or individualisable? The keypad entry system and refuse chute are almost always considered general.
- Check your commonhold regulations: How is the charge provided for? Does it respect Article 10 of the 1965 Law? If yes, your room for manoeuvre is limited.
- Consult the general meeting minutes: Was the allocation voted at a general meeting? What was the quorum and majority? A procedural irregularity could be grounds for challenge.
- Assess the amount at stake: Do legal fees exceed the disputed amount? Sometimes, it is more economical to pay, even if you disagree.
- Seek legal advice: Before any action, consult a solicitor specialised in property law. They can tell you if your challenge has a chance of success.
Do you find yourself 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 →
