Reference Decision: cc • No. 07-21.318 • 2009-02-11 • View the decision →
Imagine you own a flat in a beautiful residence in Antibes, facing the sea. You attend the co-ownership general meeting to discuss the sale of an unused technical room, which could bring in several tens of thousands of euros for the co-ownership. But the managing agent informs you that, according to the regulations, they alone decide: they can sell this room without your opinion, and even set the price. Do you feel deprived of your voting right? That's normal.
This situation is not a fictional scenario. It occurs regularly in co-ownerships, particularly on the Côte d'Azur where financial stakes are high. But what does French law actually say? Can one delegate all powers to the managing agent? The answer is clearly no, as a fundamental decision by the Court of Cassation reminds us.
In this article, I will explain this decision that protects co-owners' rights. You will discover why certain clauses in your co-ownership regulations (the document that organises the building's life) can be considered abusive, and above all, what you can do concretely if you are affected.
The Facts: A Story That Happens Every Day
The story begins with the Jesta company, a property developer that built a building to be put into co-ownership. Even before the first buyers purchased their units, the company drafted the co-ownership regulations. In this document, it inserted a particularly bold article 207.
This article gave the managing agent (the building manager) an exceptional power: for ten years, they could regularise precarious occupation (a temporary authorisation to use a space) on a room forming part of the common areas, or even sell this room, without needing the agreement of the co-owners' general meeting. The sale price was set in advance, in a "firm and definitive" manner.
A few years later, co-owners discovered this clause. They felt aggrieved: how to accept that the managing agent could sell a property belonging to everyone, without consulting them? They went to court to challenge this provision. The court ruled in favour of the co-owners, considering this clause abusive. The Jesta company appealed, then lodged an appeal on points of law (asked the highest court to verify the correct application of the law).
undefined in Grasse, I have encountered similar cases where developers, especially on new developments in Mougins or Antibes, inserted clauses advantageous to themselves in the regulations. Often, buyers sign without reading everything, attracted by the property's charm. Yet, these clauses can weigh heavily on future management.
The Court's Reasoning — Analysed
The Court of Cassation confirmed the lower courts' decision: article 207 of the co-ownership regulations must be deemed unwritten (considered null, as if it did not exist). Why? Because it deprived the general meeting in advance of its powers of disposal and administration over the common areas.
The legal basis is article 26 of the law of 10 July 1965, which governs co-ownership. This article provides that the co-owners' general meeting is competent to take decisions concerning the management, administration, and disposal of common areas. In short, it is the co-owners assembled in a meeting who decide, by the required majority, what concerns shared spaces: roof, halls, technical rooms, etc.
The Court analysed both parties' arguments. The Jesta company argued that the co-ownership regulations had contractual value (like a contract between co-owners) and that it could therefore insert particular clauses. But the judges recalled an essential principle: one cannot, in regulations, circumvent the mandatory rules of the law. Delegating to the managing agent the power to sell a common property, without consultation, amounts to depriving co-owners of a fundamental right.
In other words, even if the regulations are established before the creation of the co-ownership, they must respect the balance of powers provided by the law. This decision is not a revolutionary development, but a firm confirmation of consistent case law: clauses that excessively derogate from co-owners' rights are void. However, be careful: this does not mean that one can never delegate powers to the managing agent, but this delegation must be limited and controlled.
What This Changes for You — Concretely
If you are a co-owner, this decision protects you. Concretely, this means that you always have a say in what concerns common areas. For example, if your managing agent proposes to sell a storage room in Mougins for €50,000, you must vote in the general meeting. A simple majority (more than half of the votes) is often sufficient for this type of decision.
If you are a landlord (owner who rents out their property), this indirect protection is important. An uncontrolled sale of common areas could affect the value or attractiveness of your investment. Imagine the managing agent selling a common green space to build a car park: your tenants might be dissatisfied, and your unit's value could decrease.
If you are a tenant, you have no direct voice, but you are affected. Decisions on common areas impact your living environment. An abusive sale could, for example, reduce common spaces or increase charges if management becomes unbalanced.
If you are a buyer of a new property, be wary of co-ownership regulations drafted by the developer. Read the clauses carefully, especially those concerning delegations of power to the managing agent. undefined, I have seen clauses that gave the developer or their appointed managing agent advantages over several years, sometimes to the detriment of co-owners.
What few people know: if a clause is deemed unwritten, it is simply deleted. Decisions taken on its basis can be annulled. For example, if a managing agent sold a room under an abusive clause, the sale could be challenged, with potentially heavy financial consequences.
Four Tips to Avoid This Type of Dispute
- Read your co-ownership regulations before buying: Do not sign without examining the clauses, especially those on the managing agent's powers and the management of common areas. Get help from a professional if needed.
- Attend general meetings: Your presence and vote are essential to control decisions. If you cannot attend, give a proxy to another trusted co-owner.
- Check delegations of power to the managing agent: When the meeting votes to delegate certain tasks to the managing agent, ensure this delegation is precise, limited in time, and revocable.
- Consult a specialised lawyer if in doubt: If a clause seems abusive, or if the managing agent acts without authorisation, seek legal advice quickly. Legal action may be necessary to annul the clause.
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Deep Dive: Related Case Law and Developments
This decision fits into a consistent line of case law. For example, in a judgment of 4 July 2007 (no. 05-20.677), the Court of Cassation had already annulled a clause that allowed a co-owner to exclusively use a common area without the meeting's agreement. The principle is the same: one cannot circumvent the collegiality of decisions.
The courts' trend is clear: they protect co-owners' rights against abusive clauses, especially when they come from unscrupulous developers or managing agents. This means that, if you challenge such a clause, you have good chances of success, provided you act within the time limits (generally 5 years from discovering the clause).
For the future, this case law reminds us of the importance of transparency and democracy in co-ownership. With technological evolution, one could imagine tools to better inform co-owners, but the basic principle remains: it is the meeting that decides.
Checklist Before Acting
FAQ:
1. How to know if a clause in my regulations is abusive?
Check if it gives the managing agent or a third party decision-making power over common areas without consulting the meeting. If yes, it is probably abusive.
2. What to do if I discover an abusive clause after purchase?
Consult a lawyer to assess remedies. You can ask the court for nullity of the clause, and possibly damages if you have suffered harm.
3. Can the managing agent still manage common areas?
Yes, but for important acts (sale, lease, costly works), they must obtain authorisation from the general meeting, unless there is a specific and limited delegation.
4. How much does legal action to annul a clause cost?
Costs vary depending on complexity. Expect between €1,500 and €4,000 in lawyer's fees, plus court costs. But this can avoid much larger losses.
5. Does this decision apply to older co-ownerships?
Yes, it applies to all co-ownerships, regardless of age. The 1965 law is mandatory.
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