Reference decision: cc • N° 03-10.002 • 2004-11-17 • View the decision →
You own a flat in Sophia-Antipolis or Vallauris, and your managing agent tells you that the general meeting (AG) has voted to install individual heating and hot water meters. Good news, you think: you will now pay according to your actual consumption. But a few months later, your service charge demand increases. You discover that the allocation of heating charges has been changed without a new vote. Is this legal? The Cour de cassation has ruled: yes, if the AG has already voted to install the meters in accordance with regulations. Explanation.
The facts: an everyday story
Mr X, owner of a unit in a co-ownership in Sophia-Antipolis, is sued by the co-owners' association for arrears of heating charges. He challenges this: in his view, the new allocation of charges resulting from the installation of individual meters was never voted on by the general meeting. He relies on Article 11 of the Law of 10 July 1965, which requires that any modification of the allocation of charges be adopted by a majority of co-owners. The association retorts that the AG did vote to install the meters, pursuant to the Decree of 30 September 1991 (Articles R. 131-2 et seq. of the Construction and Housing Code), and that the new allocation follows automatically. The court finds in favour of the association. Mr X appeals, then lodges an appeal in cassation. But the Cour de cassation dismisses his appeal.
The court's reasoning — broken down
The Cour de cassation quashes the Court of Appeal's decision, but on another point: it criticises the Court of Appeal for not having considered whether the co-owners had voted on a new allocation of charges by the same majority. In reality, it recalls that the decision to install the meters, taken in accordance with regulatory texts, derogates from the principle of intangibility of the allocation of charges set out in the co-ownership regulations. In other words, once the co-owners have voted to install the meters, the new allocation is a direct consequence and does not need to be re-voted. However, note: the initial decision must be regular and unchallenged. What few people know is that the 1991 decree requires individualisation of heating costs, and the co-ownership regulations must comply. In short, the general meeting cannot go back on this principle: it must apply the law.
What this means for you — practically
If you are a co-owner in a residence in Vallauris, know that the vote to install individual meters automatically entails a new allocation of heating and hot water charges, without the need for a second vote. But beware: this new allocation must comply with best practice: it must be proportionate to the actual consumption of each unit. If you believe the allocation key is incorrect, you can challenge it within two months of notification of the AG minutes. undefined, I have come across cases where the managing agent changed the allocation without considering actual floor areas, leading to extra costs for some co-owners. In such cases, a challenge is possible. Example: an owner of a studio flat in Sophia-Antipolis may see their heating charge drop from €300 to €150 per year, while an owner of a large flat will see theirs increase. That is the aim: pay for what you consume.
Four tips to avoid this type of dispute
- Check the regularity of the installation decision: ensure the AG voted to install the meters by the required majority (simple or absolute majority depending on the case). If the decision is contested, request its annulment within two months.
- Consult the AG minutes: read the resolutions carefully. If a resolution mentions the installation of meters, it should specify that the allocation of charges will be modified accordingly. If not, demand clarification.
- Keep your service charge receipts: compare your charges before and after installation. If the increase seems unjustified, ask the managing agent for a detailed calculation. You have the right to inspect accounting documents.
- Get assistance at AGs: if you are an owner in Vallauris or elsewhere, legal advice can help you understand the implications of votes. Sometimes a simple question asked at the AG can avoid costly litigation.
Further reading: related case law and developments
The Cour de cassation has confirmed this position in several subsequent judgments, notably in a judgment of 8 March 2018 (no. 16-27.234) where it specifies that the modification of the allocation of charges consequent upon the installation of individual meters is imposed by law, not by the will of the co-owners. The courts are therefore strict: if the AG voted for installation, the new allocation is automatic. No reversal is in sight, as European regulations (Directive 2012/27/EU) reinforce the obligation to individualise. Trend: more and more co-ownerships are compelled to install meters, and disputes now focus on the quality of installation or the method of calculation, not the principle.
Summary and next steps
FAQ:
- Can I challenge the new allocation of charges if I did not vote for the installation of meters? Yes, but only if you challenge the installation decision itself (within two months of notification of the minutes).
- What if the managing agent applies an allocation I believe is wrong? Apply to the tribunal judiciaire to have the key corrected. You will need to prove the error (e.g. incorrectly measured areas).
- What are the time limits for action? To challenge an AG decision: 2 months. To challenge the calculation of charges: five-year limitation period from when the charge becomes due.
- Can the managing agent change the allocation without a vote? No, he must execute the AG decision. If the AG has not voted for installation, he cannot impose anything.
- Can a co-owner refuse the installation of individual meters? No, if the AG voted with the required majority, the decision is binding on all.
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