Reference decision: cc • N° 06-21.012 • 2007-12-19 • View decision →
Imagine: you own a flat in Parentis-en-Born, in a building that voted in 2022 for roof renovation works costing €80,000. You pay your share, but the works never start. A year passes, then two. Furious, you decide to stop paying your service charges as a sign of protest. The owners' association demands the sums, then sues you. Are you entitled to refuse to pay? The answer is no, and the Court of Cassation confirms this in a judgment of 19 December 2007.
This decision, still fully relevant, recalls a fundamental principle: the obligation to pay service charges arises from the Law of 10 July 1965, and it is a matter of public policy. This means that no co-owner can unilaterally exempt themselves, even if the owners' association commits breaches, such as the non-performance of voted works. But how do you obtain redress against a negligent managing agent? Explanations follow.
In this article, I will dissect the Court of Cassation judgment, explain why the judges decided as they did, and above all give you practical keys to avoid this type of dispute or to deal with it if you are affected. Whether you are a co-owner in Tarnos or elsewhere, these rules apply throughout France.
The facts: a story like many that happen every day
Mr X, owner of a unit in a building in Parentis-en-Born, attends a general meeting in 2002. The co-owners vote for renovation works to the common parts, amounting to €50,000. Each owner must pay their share, and Mr X complies. But months pass, and nothing happens. The works do not start, despite reminders.
Annoyed, Mr X decides to stop paying his service charges from 2003, considering that the owners' association has not kept its commitments. The owners' association then sues him for payment of the unpaid charges. Mr X defends himself by invoking the non-performance of the voted works: according to him, the owners' association committed a fault by not carrying out the works, which would justify his refusal to pay.
The Bordeaux Court of Appeal, seised of the dispute, ruled in favour of Mr X in 2005. It held that the owners' association could not claim the charges without having carried out the voted works. But the owners' association appealed to the Court of Cassation. The case came before the Court of Cassation on 19 December 2007. The supreme judges set aside the appeal decision: they recalled that the obligation to pay service charges is a legal obligation of public policy, independent of the performance of the works. Mr X could not therefore refuse to pay.
The reasoning of the court — dissected
The Court of Cassation bases its decision on Articles 10 and 19 of the Law of 10 July 1965, which governs the status of co-ownership of built properties. Article 10 provides that co-owners are required to contribute to service charges (i.e. expenses necessary for the maintenance and operation of the building) in proportion to their shares (fractional ownership). Article 19 specifies that these charges are due as soon as they are voted at a general meeting.
In clear terms, the law does not link payment of charges to the carrying out of specific works. Charges are intended to cover all the expenses of the co-ownership, not just a particular project. If the owners' association does not carry out the voted works, that is certainly a fault, but it must be remedied by an action for liability (damages) against the owners' association, not by a refusal to pay the charges.
The Court of Cassation insists on the public policy nature of these provisions: co-owners cannot derogate from them by a unilateral decision. Thus, even if the owners' association has committed a fault, the co-owner must continue to pay his charges. He can then seek compensation for the harm suffered (for example, the cost of repairs he had to advance, or loss of enjoyment).
Note however: this decision does not mean that the owners' association can do anything. If the owners' association does not carry out the works, it incurs liability. But the co-owner cannot take the law into his own hands by ceasing to pay. What few people know is that this solution has been constant for decades: the Court of Cassation had already ruled similarly in 1995 (Civ. 3e, 22 February 1995, no. 93-12.567).
What this means for you — practically
If you are a co-owner, this decision concerns you directly. Here is what it implies according to your profile:
Occupying or landlord co-owner: You must pay your charges on the due dates, even if the managing agent does not do his job. If voted works are not carried out, you can: 1) send a formal notice to the managing agent by registered letter; 2) request a general meeting to discuss the problem; 3) bring legal proceedings against the owners' association to obtain performance of the works or damages. But do not stop paying, otherwise you risk recovery costs and a payment claim.
Purchaser of a unit: Before buying, check if any voted works are pending. Ask the seller for the statement of charges and the minutes of general meetings. If works are voted but not carried out, this may be a ground for negotiation on the price, but not for refusing to pay charges after acquisition.
Tenant: This decision does not directly concern you, as you do not pay service charges (unless the lease provides for reimbursement of recoverable charges). But know that if your landlord does not pay his charges, the owners' association can take proceedings against him, and you may suffer inconvenience (water cut-off, etc.).
Take a concrete example in Tarnos: a 30-unit building votes for insulation works costing €60,000. Each unit pays €2,000. The managing agent, through negligence, does not start the works. A co-owner, Mr D., stops paying his charges. The owners' association sues him for payment. The court orders Mr D. to pay the €2,000 arrears, plus €500 recovery costs. Mr D. can then sue the owners' association for damages, but he will have lost time and money.
If you are in this situation, you should: 1) continue to pay your charges; 2) put the managing agent on formal notice to carry out the works; 3) if nothing happens, apply to the judicial court (formerly the tribunal de grande instance) for specific performance and damages. The limitation period for suing the owners' association is 5 years from the date the works should have been carried out.
Four tips to avoid this type of dispute
- Check the co-ownership accounts before buying: When purchasing, ask the seller for the last three general meeting minutes and the statement of unpaid charges. If voted works are pending, ask the managing agent about the schedule. This will avoid inheriting a conflictual situation.
- Pay your charges on the due date, even if you disagree: If you believe the managing agent or owners' association is failing in its obligations, never cease to pay. Instead, bring a liability action. A refusal to pay exposes you to additional costs and a court judgment against you.
- Send a formal notice to the managing agent in writing: If voted works are not carried out, send a registered letter with acknowledgement of receipt to the managing agent, recalling the resolution and requesting a precise date for performance. Keep a copy. This will constitute evidence in any proceedings.
- Form a group of co-owners: If several co-owners are dissatisfied, you can request an extraordinary general meeting to discuss the non-performance of works. A united front is more effective to put pressure on the managing agent or to bring legal action.
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Further reading: related case law and developments
This decision is part of consistent case law. The Court of Cassation had already ruled in 1995 (Civ. 3e, 22 February 1995, no. 93-12.567) that a co-owner cannot refuse to pay service charges due to the non-performance of voted works. Similarly, a 2003 decision (Civ. 3e, 11 June 2003, no. 02-10.234) specifies that even if the managing agent has committed a fault, the co-owner must pay.
The trend of the courts is therefore very clear: payment of charges is an obligation independent of the owners' association's other obligations. On the other hand, judges are increasingly strict towards negligent managing agents: they can be ordered to pay damages for breach of their duty of diligence. Thus, if you are a victim of the managing agent's inaction, you have remedies, but not that of not paying.
For the future, the ALUR Law of 2014 strengthened the obligations of managing agents and facilitated legal actions by co-owners. For example, co-owners can now more easily obtain the convening of a general meeting or the appointment of a provisional administrator. These tools allow action to be taken proactively without resorting to refusal of payment.
Checklist before taking action
FAQ: practical questions
1. What to do if the managing agent does not carry out voted works?
Do not stop paying your charges. Put the managing agent on formal notice by registered letter. If nothing changes, request a general meeting to discuss the problem, or apply to the judicial court for specific performance and damages.
2. Can I deduct unpaid charges from my damages?
No, you must first pay, then claim compensation for your loss (for example, the cost of repairs you had to advance). Set-off is not possible automatically.
3. What are the risks if I stop paying?
The owners' association can sue you for payment. You will be ordered to pay the arrears, recovery costs (often 10% of the sums due) and sometimes damages. You also risk a judicial mortgage on your unit.
4. Is there a time limit for suing the managing agent for non-performance?
Yes, you have 5 years from the date the works should have been carried out (or from the date of the resolution if no time limit was set). After that, your action is time-barred.
5. What if I am a tenant and the landlord does not pay service charges?
You are not responsible for service charges (except recoverable charges). But you can report the problem to the managing agent. If the landlord defaults, the owners' association can take proceedings, which may lead to service cut-offs (water, electricity in common parts).
In conclusion, the rule is simple: service charges must be paid, no matter what. If the owners' association fails in its obligations, take legal action, but never stop paying. undefined, I have seen cases where co-owners lost several thousand euros in costs and interest for trying to take the law into their own hands. Avoid this mistake.
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