Reference Decision: cc • No. 76-12.001 • 1977-11-29 • View the decision →
Imagine: you have just bought a flat in a development with a swimming pool, gym and communal garden. Except you don't swim, you cycle and you prefer the balcony. Can you refuse to pay your share of the maintenance charges for the pool? The answer is no, and has been since 1977. The Cour de cassation (the highest French court) ruled: each co-owner is obliged to contribute to the costs of collective services as long as they have the possibility of using them, and cannot be excused because they voluntarily abstain. This decision, often overlooked, governs the life of thousands of co-ownership schemes.
The Facts: A Story Like Many Others
It is the late 1970s. A property development intended as a retirement residence is created, comprising strictly identical units. The co-ownership regulations provide for common services: dining rooms, lounges, kitchens and infirmaries. The staff costs relating to these services are apportioned pro rata to the shares of common parts, identical for all units. A co-owner challenges this apportionment: he does not use these services, why should he pay? He sues the co-owners' association. The court of appeal (second instance) rules against him. He appeals to the Cour de cassation.
The Court's Reasoning — Analysed
The Cour de cassation dismisses the appeal. It reiterates the principle: no legal provision provides a closed list of collective services and common equipment items. In other words, any service made available to co-owners, provided it is collective, can give rise to charges. The criterion is not actual use, but the possibility of use. The Court adds that the utility of these services is the same for all, since the units are identical and the purpose of the building (retirement residence) implies a community of life. In short, even if Mr X never goes to the infirmary, he benefits from its presence in case of need, and this mere availability justifies his contribution.
What This Means for You — In Practice
For landlord owners (who rent out their property): you must pay the charges for collective services even if your tenant does not use the pool. For tenants: you cannot claim a rent reduction on the grounds that you do not use a particular facility. For occupying co-owners: it is impossible to challenge the apportionment of lift charges if you live on the ground floor, or garden charges if you never set foot in it. Concrete example in Antibes: in a development with a pool and tennis court, an owner tries not to pay the maintenance charges for the tennis court. Application of the 1977 ruling: he must pay, because he has the possibility of using it.
Four Tips to Avoid This Type of Dispute
- Read the co-ownership regulations carefully before buying. Check the list of collective services and the basis for apportioning charges. If services seem superfluous, negotiate the purchase price.
- Never refuse to pay a charge on the grounds of non-use. You risk penalties and legal costs. If you dispute, pay first under protest, then take the matter to court.
- Have the co-ownership regulations amended if you consider a service is no longer useful to the majority. This requires a general meeting and a double majority (Art. 26 of the 1965 Act).
- Consult a lawyer lawyer if in doubt. A simple consultation can save you years of litigation.
Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.
Further Reading: Related Case Law and Developments
This 1977 ruling has been consistently upheld since. For example, the Cour de cassation held in 1986 (No. 84-15.678) that the owner of a commercial unit in a co-ownership must contribute to lift charges even if they do not use it, provided the lift serves the common parts. In 2003, it extended this principle to caretaker charges: a co-owner cannot avoid them even if they do not need a caretaker. The trend is clear: case law favours the collective interest over individual choices. For the future, courts are expected to continue applying this principle, unless the co-ownership regulations provide for a different apportionment based on actual use.
Checklist Before Taking Action
If you are a co-owner and wish to challenge charges:
- Check whether the service is truly collective (defined in the co-ownership regulations).
- Pay the charges under protest (by registered letter with acknowledgement of receipt).
- Consult the minutes of the general meeting to see whether the apportionment was voted in accordance with the law.
- Seek advice from a lawyer before taking legal action.
In a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of litigation — and often much more. Book an appointment →
