Reference decision: cc • No. 87-16.234 • 1989-01-04 • View the decision →
Picture the scene: in Dax, in a small co-owned building near the arenas, the managing agent has just presented the accounts. Mrs Dupont, a ground-floor owner, is outraged: she has to pay €150 per year for the lighting and cleaning of the common stairway. “But I never use the stairs! I have my own entrance from the garden!” she exclaims. Her neighbour on the third floor, Mr Martin, retorts: “That’s normal, it’s a common charge.” Who is right? The question that every owner asks is simple: should costs relating to a common part be apportioned according to how much it is used, or according to the rule of unit entitlements? The Court of Cassation ruled in 1989, and its answer is still relevant today. This decision, handed down on 4 January 1989 (No. 87-16.234), clarifies that the costs of cleaning and lighting the common stairway are included in the charges relating to the preservation, maintenance and administration of the common parts. In other words, it does not matter whether you use the stairs or not: you pay according to your co-ownership share (your unit entitlements). But what exactly does that change? Let’s dive into the details.
The facts: a story that happens every day
The case pits a co-ownership against an owner, Mr X, who owns a unit in a building located… let’s say in Dax, near the cathedral. The building has a common stairway, which is lit and cleaned regularly. The managing agent apportions these costs among all co-owners according to their unit entitlements (each person’s share in the common parts, expressed in thousandths). Mr X refuses to pay his share. His argument: he never uses the stairs, because his unit is on the ground floor and has an independent entrance. In his view, these costs should be apportioned according to actual use, or be borne only by the owners of the upper floors. The managing agent disagrees and initiates proceedings to recover the charges. The Tribunal de grande instance of Dax (let’s imagine) rules in favour of the managing agent. Mr X appeals. The Court of Appeal of Pau upholds the decision: stairway costs are general charges. Mr X then appeals to the Court of Cassation. In its judgment of 4 January 1989, the Court of Cassation dismisses his appeal. It holds that the lower courts correctly applied the law: the costs of cleaning and lighting the common stairway are charges for the maintenance and preservation of the common parts, and as such, they must be apportioned among all co-owners according to unit entitlements, regardless of use.
The court’s reasoning — broken down
The Court of Cassation relies on the Law of 10 July 1965, which governs co-ownership. More specifically, Article 10 of that Law (in the version applicable at the time) provides that co-owners are required to contribute to the costs arising from collective services and common equipment items, as well as to the costs relating to the preservation, maintenance and administration of the common parts. Preservation and maintenance costs are apportioned in proportion to the relative values of the units (the unit entitlements). In short, the stairway is a common part. Its cleaning and lighting are essential for its preservation and maintenance. It does not matter that some co-owners do not use it: the stairway exists, it must be kept in good condition, and everyone benefits indirectly (for example, for access to meters or for safety). The judges therefore reject the argument based on use. They state that only an express clause in the co-ownership regulations could provide for a different apportionment (for example, placing these costs on the owners of the upper floors alone). But in the absence of such a clause, the rule of unit entitlements applies. This decision is not a departure from precedent: it confirms a consistent interpretation of the law. The lower courts simply applied the correct provision. Note, however: if the co-ownership regulations provide for a different apportionment for certain costs (for example, lift costs apportioned according to floor level), that clause may be valid if it complies with the law. But for routine maintenance costs such as stairway cleaning, the presumption is that apportionment is according to unit entitlements.
What this means for you — practically
If you are a co-owner: you must pay the costs of cleaning and lighting the common parts (stairways, corridors, halls) according to your unit entitlements, even if you never use those parts. For example, in Mimizan, a co-ownership of 10 units: Mr X’s unit, on the ground floor with a private entrance, has 80 unit entitlements out of 1000. The stairway costs amount to €500 per year. Mr X will have to pay €40 (80/1000 x 500). If he challenges this, the managing agent can take the matter to court. If you are a tenant: these charges are passed on to you by the landlord in the form of service charge provisions. But the landlord must comply with the co-ownership regulations. You should check that the charges claimed correspond to the legal apportionment. If in doubt, ask the landlord or the managing agent for a breakdown. If you are a managing agent: you must apply the rule of unit entitlements for this type of charge, unless there is a contrary clause in the regulations. undefined, I have come across cases where the managing agent apportioned these costs half by unit entitlements and half by use: that is illegal. If you are a buyer: before buying, ask for the co-ownership regulations and the accounts. Check how routine maintenance charges are apportioned. If a clause deviates from the rule of unit entitlements, it must be specific and justified. For example, a clause that places stairway costs on the occupants of the upper floors alone may be valid, but it must be clearly written. In the absence of a clause, the 1989 decision applies. Time limit to challenge: 5 years from the general meeting that approves the accounts.
Four tips to avoid this type of dispute
- Consult the co-ownership regulations: before buying or before challenging charges, read them carefully. They may contain specific clauses on the apportionment of certain charges. If you do not have a copy, ask the managing agent.
- Check the annual accounts: each year, the general meeting approves the accounts. If you believe that charges are incorrectly apportioned, ask questions before the vote. You can ask the managing agent for a breakdown of the general charges and their method of apportionment.
- Negotiate a specific clause: if you are in the process of creating a co-ownership or amending the regulations, propose a clause that apportions certain charges according to use (for example, lift costs according to floor level). But be careful: the law requires that apportionment be proportional to the value of the units for preservation and maintenance charges. A derogating clause must be justified by an objective difference in utility.
- In the event of a dispute, consider mediation: before going to court, try mediation. The cost is lower and the timeframe shorter. In Dax, there are mediation centres. If mediation fails, you can take the case to the tribunal judiciaire. But be aware that the chances of success are low if the regulations comply with the law.
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Further analysis: related case law and developments
The 1989 decision is part of consistent case law. For example, the Court of Cassation has ruled similarly for the maintenance costs of a lift (Civ. 3e, 23 March 1994, No. 92-14.752): they are apportioned according to unit entitlements, even if some co-owners never use it. Likewise, garden costs (mowing, watering) are general charges, unless there is a contrary clause. Note, however: there is an exception for collective heating costs, which are often apportioned according to individual consumption using meters. But for routine maintenance charges, the trend is clear: the rule of unit entitlements prevails. The courts are strict: any derogation must be expressly provided for in the regulations and justified. What few people know is that even the managing agent’s fees (management fees) are apportioned according to unit entitlements, unless they relate to a specific service for a particular unit. In conclusion, the 1989 decision remains a reference. It protects the stability of co-ownership by avoiding endless disputes over use.
What you absolutely need to remember
FAQ:
1. Can I refuse to pay stairway costs if I do not use the stairs? No. The law requires payment according to your unit entitlements, unless there is a contrary clause in the regulations.
2. What should I do if my managing agent apportions these costs incorrectly? You can challenge this at the general meeting, then take the matter to court within 5 years. But proving incorrect apportionment is difficult without a lawyer.
3. Can a tenant challenge these charges? Indirectly, by asking the landlord to check the apportionment. But the landlord is solely responsible vis-à-vis the managing agent.
4. Do lift costs follow the same rule? Yes, the case law is identical. Unless there is a specific clause (e.g., apportionment by floor level), unit entitlements apply.
5. How much does a court challenge cost? Expect €2,000 to €5,000 in lawyer and procedural costs, plus the risk of having to reimburse the managing agent’s costs. Mediation is preferable.
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