Co-ownership: How to Compel a Neighbour to Repair Common Parts Without Going Through the General Meeting

Picture the scene: you own a flat in a residence in Mont-de-Marsan. Your upstairs neighbour, during poorly executed works, has damaged the roof terrace, a common part. Seepage threatens your ceiling. You ask the managing agent to act, but nothing happens. Furious, you decide to sue the owners' association in court to obtain repairs. But the Court of Cassation, in a ruling of 13 January 2010 (No. 08-21.110), tells you: impossible without a prior resolution of the general meeting. This decision, often overlooked, imposes a strict procedure before any legal action. So, how should you react when a co-owner causes damage to the common parts? This article explains everything.

The question every owner asks: "Can I act alone against the owners' association to force a neighbour to make repairs?" The answer is no, if we follow the case law of the Court of Cassation. But beware: this does not mean you are defenceless. You simply must respect the rules of co-ownership, in particular placing the matter on the agenda of the general meeting. Without this, your action will be inadmissible. Let us analyse this decision together and its practical implications for residents of Mont-de-Marsan, Capbreton and elsewhere.

The Facts: A Story That Happens Every Day

Mr X, a co-owner in a residence in Mont-de-Marsan, notices that his neighbour, Mr Y, has carried out works on a common terrace without authorisation. These works have caused damage: cracks, seepage. Mr X is furious: he suffers the direct consequences of these deteriorations. He therefore decides to sue the owners' association in court, seeking an order that Mr Y restore the terrace. But the owners' association, represented by its managing agent, defends itself: Mr X did not seek the general meeting's authorisation for this legal action. The case goes to the tribunal de grande instance, then the court of appeal, and finally the Court of Cassation.

The judicial journey is classic. At first instance, the court rules in favour of Mr X: his action against the owners' association to obtain repairs is admissible. But the court of appeal reverses this judgment: it declares Mr X's action inadmissible for failure to place the matter on the agenda of the general meeting. Mr X appeals to the Court of Cassation. He argues that every co-owner has the right to take legal action to stop a disturbance, even without a prior resolution. The Court of Cassation dismisses his appeal: it upholds the appeal court's decision. In short, a co-owner cannot sue the owners' association to obtain the restoration of common parts by another co-owner without having first asked the general meeting to decide on this action.

What few people know is that this decision is part of a logic of protecting the owners' association. Indeed, the owners' association must be able to decide whether to take legal action or prefer an amicable solution. Allowing a co-owner to act alone would risk multiplying proceedings and weakening collective management. In other words, co-ownership law favours majority decision-making, even for legal actions.

The Court's Reasoning — Analysed

The Court of Cassation relies on a fundamental rule of co-ownership law: the owners' association is the legal entity responsible for the preservation of the building and the administration of the common parts. It alone is entitled to take legal action to defend collective interests, unless a co-owner suffers a distinct personal injury. In this case, the harm suffered by Mr X (seepage) was not distinct from that of the other co-owners: it was a disturbance affecting the common parts. Therefore, only the owners' association could act, and it required the general meeting's authorisation.

The legal basis is Article 1240 of the Civil Code (extra-contractual liability), but above all Article 15 of the Law of 10 July 1965 on co-ownership. The latter provides that the owners' association has standing to take legal action to defend collective interests. A co-owner may also act individually, but only if he demonstrates a personal and direct injury, which was not the case here. The Court of Cassation has already clarified in other decisions that the mere fact of suffering damage to one's private parts due to deterioration of the common parts does not create a distinct injury (Civ. 3e, 10 May 2007, No. 06-12.759).

The High Court also rejected Mr X's argument that he could act as a "direct victim". The judges considered that the action for restoration of the common parts falls within collective management. In short, even if you are directly affected, you must go through the general meeting. This is a confirmation of case law: the Court of Cassation maintains a strict line, requiring prior compliance with the rules of co-ownership.

Note, however: this decision does not completely close the door to individual action. If the co-owner responsible for the damage causes a specific injury (for example, loss of rent, abnormal disturbance of enjoyment), it is possible to sue him directly under Article 1240. But this is no longer an action against the owners' association for restoration of common parts, but an action for damages for personal injury.

What This Changes for You — Practically

For co-owners, this decision means that you cannot act alone in court to obtain the repair of common parts by another co-owner. You must first place the matter on the agenda of the next general meeting. If the majority votes in favour of the action, the owners' association will initiate proceedings. If the majority refuses, you are blocked. But you can then challenge this decision before the court, by showing that it is abusive or contrary to the collective interest.

Take a concrete example in Capbreton: you live in a seaside residence, and your neighbour has modified a common walkway without authorisation. You suffer nuisance. You write to the managing agent asking for action. The managing agent tells you that a vote at the general meeting is required. You request that the matter be placed on the agenda. If the general meeting refuses (for example, because the offending co-owner is influential), you can take the matter to court to have that decision annulled. But beware: deadlines are short (two months from notification of the minutes).

If you are a tenant, this decision also concerns you indirectly. You cannot act against the owners' association, but you can inform your landlord (the lessor) who, as a co-owner, can request that the matter be placed on the agenda of the general meeting. In the meantime, you can ask your landlord for a rent reduction or damages for disturbance of enjoyment, if the damage is serious.

For real estate professionals (managing agents, administrators), this case law reminds them of the importance of properly informing co-owners of their rights. A managing agent must, as soon as he becomes aware of damage, propose that it be placed on the agenda. If he does not, he may incur liability.

Four Tips to Avoid This Type of Dispute

• Systematically place the matter on the agenda of the general meeting: if you notice damage caused by a co-owner to the common parts, ask the managing agent, by registered letter, to add this item to the agenda of the next meeting. Attach photos and estimates. This will allow you to obtain a collective decision.
• Keep all evidence: photos, bailiff's reports, correspondence. In the event of a refusal by the general meeting, you will be able to challenge the decision in court. Without evidence, your action is likely to fail.
• In case of emergency, seek an interim measure from the summary judge: if the damage is serious (danger, insanitary conditions), you can apply to the summary judge for an expert assessment or provisional measures, without waiting for the general meeting. Note that this does not resolve the merits, but prevents aggravation.
• Consult a lawyer lawyer before acting: every situation is unique. A quick consultation can save you procedural missteps. For example, in Mont-de-Marsan, Maître Cécile Zakine can advise you on the best strategy.

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

Further Analysis: Related Case Law and Developments

This 2010 decision is part of a consistent line of case law. For example, the Court of Cassation has held that a co-owner who suffers a distinct injury can sue the author of the damage directly (Civ. 3e, 10 May 2007, No. 06-12.759). But if the injury is collective, only the general meeting can decide on the action. More recently, the Court of Cassation clarified that the owners' association may act without the general meeting's authorisation in cases of urgency (Civ. 3e, 4 July 2019, No. 18-18.788). However, urgency does not allow a co-owner to act alone.

The current trend is towards protecting majority decision-making. Judges want to avoid individual co-owners imposing their will at the expense of the community. This means that, for the future, it is unlikely that the Court of Cassation will soften its position. On the contrary, it may strengthen the requirement for prior authorisation from the general meeting.

In Practice: What to Do

5-step checklist if you face damage to common parts:

1. Document the damage: take photos, have a bailiff's report made if necessary.
2. Inform the managing agent in writing: send a registered letter with acknowledgement of receipt describing the facts and requesting that the matter be placed on the agenda of the next general meeting.
3. Attend the general meeting: if the matter is on the agenda, vote in favour of legal action. If it is not on the agenda, request its addition during the meeting (if the agenda allows).
4. If the general meeting refuses: you can challenge the decision within two months before the tribunal judiciaire (formerly TGI).
5. If urgency justifies it: apply to the summary judge for interim measures.

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 →