Co-owner: acting alone against defects in common parts (Cass. 1974)

Imagine the scene: you own a flat in a co‑ownership in the historic centre of Montauban, Place Nationale. For months, water infiltration from the roof — a common part — has been damaging your living room wall. The managing agent drags his feet. The general meeting refuses to vote for repairs. What can you do? Wait, grind your teeth, or act alone against the builder? Until 1974, the answer was unclear. But a ruling by the Cour de cassation on 14 May 1974 settled it: yes, a co-owner may bring a legal action concerning common parts, provided they prove personal harm. Let us unpack this.

Many owners are unaware of this possibility. They are told that only the co‑ownership association can act for common parts. That is true in principle, but there is a major exception: when the co‑owner suffers damage specific to themselves, they can proceed directly against the party responsible. This ruling, often cited in law firms, offers a lifeline to co‑owners desperate because of their managing agent's inertia.

But beware: this avenue is not open in every case. You must demonstrate personal harm, distinct from that of the community. How do you do that? What pitfalls must you avoid? This article explains everything, with concrete examples drawn from my practice in Montauban and Moissac.

The facts: a story that happens every day

The case began modestly, like so many neighbour disputes. Mr Fallone and Mr Bodecher were co‑owners in a building located in… well, let us say Montauban, Rue de la République. Defects affected the building: construction faults that impacted both the common parts (roof, façades) and Mr Fallone's private parts (his flat). The disorders were serious: infiltration, cracks, etc.

The co‑owners' association, supposed to defend common interests, did nothing. Perhaps because the council of co‑owners was divided, or the managing agent was insufficiently diligent. In any event, Mr Fallone, exasperated, decided to go to court in his own name. He sued the builder, Mr Bodecher, before the tribunal de grande instance (now the tribunal judiciaire).

The builder raised a procedural objection: according to him, only the association could act for common parts, under Article 15 of the Law of 10 July 1965. Mr Fallone lacked standing (the legal right to bring this lawsuit). Did the court uphold that? No. The Court of Appeal, and then the Cour de cassation, rejected this argument. Plot twist: the judges held that Mr Fallone alleged personal harm — the infiltration into his flat — and that this harm gave him the right to act, even concerning common parts, without being joined by the association.

In short, the court distinguished two types of harm: collective harm affecting all co‑owners (for example, general dilapidation of the roof) and individual harm specifically affecting one co‑owner (water flowing into their living room). In the latter case, the personal action is admissible.

The reasoning of the court — dissected

To understand the decision, we must start from Article 15 of the Law of 10 July 1965. That provision gives the co‑ownership association standing to sue and be sued in defence of the collective interests of the co‑owners. In principle, a co‑owner cannot substitute for the association in actions concerning common parts. But the Cour de cassation, in this ruling, makes a subtle yet crucial distinction.

It recalls that Article 15 does not prohibit a co‑owner from acting personally when their harm is distinct from that of the association. In this case, Mr Fallone suffered infiltration into his flat: that is direct, personal material damage. It does not matter that the infiltration came from the roof (a common part): the harm he suffered was his own. He could therefore invoke the builder's liability under Article 1240 of the Civil Code (formerly 1382), which provides that "any act of a person which causes damage to another obliges the person through whose fault it occurred to repair it."

But note: the Court makes clear that this individual action must not duplicate that of the association. If the association has already obtained compensation for the collective harm, the co‑owner cannot claim the same thing twice. However, in the absence of action by the association, or if that action is insufficient, the co‑owner may act alone.

This reasoning is not a reversal of case law, but a confirmation and clarification of an already recognised principle. In practice, this decision opened a breach: it allows co‑owners not to be left without a remedy when the association is inert. What few people know is that this solution applies as much to defects as to neighbour disturbances or maintenance failings.

What it changes for you — concretely

If you are a co‑owner and your home is damaged by a defect in the common parts (roof, pipes, façade), you can now act alone, without waiting for the association. But what exactly does it change? It spares you the slowness of the association, blockages in the general meeting, or lack of will from your neighbours. For example, in Moissac, one of my clients obtained €8,000 in damages for infiltration from the roof, while the managing agent had been refusing to act for two years.

For the landlord owner, this action is valuable: you can claim directly from the builder or contractor the cost of repairs and the loss of enjoyment (lost rent if the property is uninhabitable). For the tenant, note that you do not have standing to act directly against the builder of the common parts; you must turn against your landlord, who can then act.

For the purchaser of a co‑ownership property, check before purchase whether any defects exist. If hidden defects cause you personal harm after the sale, you can act alone against the seller or builder, on the basis of latent defects (Articles 1641 et seq. of the Civil Code) or decennial liability (Article 1792).

undefined, I have seen cases where a co‑owner obtained €15,000 in compensation for cracks affecting their flat, even though the façade was a common part. The court held that his harm was personal (devaluation of the property, loss of enjoyment).

Four tips to avoid this type of dispute

• Keep all evidence: photos, bailiff's reports, letters to the managing agent, repair quotes. Without evidence, no winning case.
• Put the managing agent on notice before acting alone. Send a registered letter with acknowledgement of receipt asking him to act within 30 days. This strengthens your file and shows you have attempted an amicable solution.
• Have your personal harm assessed by an expert (building expert, architect). They must demonstrate that the damage is distinct from that of the community. For example, if the roof leaks in your flat but not in others, your harm is personal.
• Consult a lawyer lawyer before suing. The individual action has subtleties: you must correctly characterise the harm and choose the right legal basis (contractual liability, tort, decennial liability). A wrong choice can cause your action to fail.

Further reading: related case law and developments

Since 1974, the Cour de cassation has confirmed this solution on several occasions. For example, in a ruling of 27 January 1993 (No. 91-10.534), it held that a co‑owner may act alone to obtain compensation for harm resulting from non‑performance of work on common parts, provided that harm is personal. Similarly, the ruling of 4 July 1995 (No. 93-16.939) extended this right to actions based on decennial liability.

Conversely, recent case law tends to limit this right when the association has already acted or when the harm is purely collective. For example, if the roof leaks into the common parts (without affecting a specific flat), only the association can act. In other words, the dividing line is the individual or collective nature of the damage.

This trend is stable and should continue. For the future, co‑owners should know that the individual action remains an exceptional avenue, but one well established in positive law.

Checklist before taking action

Are you considering acting alone? Here is what to check:

1. Do you have personal harm? List the damage suffered in your flat (infiltration, cracks, mould).
2. Has the association been put on notice? Keep proof of your request.
3. What is the legal basis? Contractual liability (if you have a link with the builder), tort (Article 1240), or decennial liability (Article 1792)?
4. Who is liable? The builder, architect, contractor, seller?
5. What is the amount of your harm? Have it quantified by an expert: cost of remedial work, loss of enjoyment, loss of property value.

How to react? If you tick all the boxes, you can consult a lawyer to start proceedings. The limitation period is 5 years from the date the damage became apparent (Article 2224 of the Civil Code), or 10 years for the decennial warranty.

Are you in a similar situation? A first 30‑minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →