Reference decision: cc • No. 10-11.287 • 2010-11-17 • Consult the decision →
Imagine you own a small building in Tarnos, near the Métro beach. You wish to sell separately your ground-floor commercial premises and your upstairs flat. But here's the catch: you have never drafted co-ownership regulations (the document that organises communal life in the building). One notary tells you the sale is impossible without this document. Another asserts the opposite. Who to believe?
This situation is one I encounter regularly in the jurisdiction of Mont-de-Marsan, particularly in communes like Parentis-en-Born where many owners convert former family homes into multiple dwellings. The question constantly arises: can one sell co-ownership units without having established these famous regulations?
The answer, provided by the Cour de cassation in a 2010 decision, is more nuanced than one might think. It does not say "yes" or "no" categorically, but sets precise conditions. And these conditions change the game for thousands of owners in the Landes region.
The facts: a story as happens every day
The story begins with Mr. Durand, owner of a six-unit building in Mont-de-Marsan. He decides to sell units No. 4 to 6 to SCI Cast, a civil real estate company represented by Mrs. Lambert. The problem? The building had never been subject to officially drafted co-ownership regulations published in the land registry.
Mr. Durand thought the sale was possible because each unit was perfectly identifiable: unit 4 corresponded to a 75m² flat on the first floor, unit 5 to a 50m² commercial premises on the ground floor, and unit 6 to an individual garage. The plans were clear, the areas well delimited. But SCI Cast, after signing the preliminary sale agreement, withdraws. Their argument? The absence of co-ownership regulations made the sale impossible, because one could not know precisely what were the common parts (staircase, roof, courtyard) and the private parts.
The dispute goes up to the tribunal de grande instance of Mont-de-Marsan. Mr. Durand insists: "The units have been individualised for years, each pays their charges, no one has ever complained of confusion!" SCI Cast retorts: "Without regulations, how to know who must maintain the roof? Who pays for lighting in the common parts?"
The first judges rule in favour of Mr. Durand. SCI Cast appeals. The court of appeal confirms. But the company does not admit defeat and seizes the Cour de cassation, the highest French judicial court. The suspense is at its peak: will this absence of formalism cause a sale that is nonetheless concrete and feasible to fail?
The court's reasoning — dissected
The Cour de cassation, in its judgment of 17 November 2010, adopts a pragmatic reasoning that goes against certain received ideas. The magistrates first recall the legal basis: Article 8-1 of the law of 10 July 1965, known as the "co-ownership law", which provides that "any built building or group of built buildings whose ownership is divided among several persons by units comprising each a private part and a share of common parts is subject to the co-ownership statute".
In other words, as soon as a building belongs to several persons, with private parts and common parts, co-ownership exists de facto. The regulations are merely a document that organises this pre-existing reality. The court specifies: "The obligatory nature of establishing co-ownership does not necessarily require the drafting and publication of regulations".
But beware however: this absence of formalism is only authorised under one essential condition. The units must be "individualised" and their identification must create "no confusion with the other units". In plain terms, if you can show on a plan exactly what belongs to each unit, if the boundaries are clear, and if this distribution is accepted by all co-owners, the sale is possible.
The court rejects SCI Cast's argument that the absence of regulations would create legal uncertainty. It considers that the individualisation of units is sufficient to guarantee transaction security. This reasoning constitutes a confirmation of prior case law rather than a revolution, but it clarifies a question that was debated in many law firms and notarial offices.
undefined, I have encountered cases where notaries refused to execute the deed of sale out of excessive caution, even though the units were perfectly identifiable. This decision now gives them a solid basis to act.
What this changes for you — concretely
But what exactly does this change for you, owner in Parentis-en-Born or tenant in Tarnos? The answer varies according to your situation.
If you are a landlord owner of a building you wish to divide into units, this decision simplifies your life. You are no longer obliged to draft complete co-ownership regulations before selling. Imagine: in Parentis-en-Born, an owner wants to sell separately their ground-floor commercial premises (valued at €150,000) and their upstairs flat (€200,000). Without this decision, they would have had to wait 3 to 6 months and spend €3,000 to €5,000 to have regulations established by a surveyor and a lawyer. Now, if the units are clearly individualised, they can sell immediately.
If you are a potential buyer, vigilance is required. You must demand a precise description of the unit: detailed plans, exact surface area, list of included equipment. Also ask for a statement of charges paid by the seller for the common parts. Without regulations, these charges are often distributed amicably among co-owners. Verify that this distribution is equitable and documented.
If you are already a co-owner in a building without regulations, this decision protects you. It validates the de facto situation. But beware: to avoid conflicts, it remains prudent to establish regulations afterwards. General meetings must be organised, a managing agent designated, even informally.
For real estate professionals, this decision speeds up transactions. But it requires rigorous documentation: photos, plans, detailed descriptions become indispensable. A tip: have a surveyor establish a certificate of unit individualisation (cost: €800 to €1,500 depending on complexity).
Four tips to avoid this type of dispute
- Have a division plan established by a chartered surveyor before any sale, even if you do not draft complete regulations. This plan, signed by all co-owners, will serve as proof of individualisation.
- Document the distribution of common charges for at least three years. Keep a register of expenses (maintenance, repairs, insurance) and their distribution among units. This document can be produced in court in case of dispute.
- Organise an informal general meeting with all co-owners before the sale. Put in writing agreements on common parts, living rules, designation of a voluntary managing agent. These minutes will have probative value.
- Include in the deed of sale a detailed clause describing precisely the unit sold, its boundaries, its exclusive equipment, and its estimated share in common parts. Have it drafted by a notary or specialised lawyer.
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Deepening: related case law and developments
This 2010 decision fits into a pragmatic jurisprudential trend. Already in 1995, the Cour de cassation (judgment No. 93-17.290) had considered that "the absence of publication of co-ownership regulations does not prevent the application of the co-ownership statute". But it had not specified the conditions as clearly.
More recently, in 2018 (judgment No. 17-20.316), the court recalled that the individualisation of units must be "certain and unequivocal". It refused to validate a sale where the plans were approximate and where two units shared a terrace without precise delimitation.
What few people know: this case law is also evolving at the level of local courts. In the jurisdiction of Mont-de-Marsan, I have seen judges demand increasingly solid proof of individualisation: dimensioned plans, dated photos, testimonies from other co-owners.
The trend is clear: courts accept the absence of formalism, but demand in return maximum transparency and precision. For the future, this could encourage owners to opt for hybrid solutions: no complete regulations, but very detailed individualisation documents, less costly and quicker to establish.
Checklist before acting
Selling a unit without co-ownership regulations? Check these 5 points:
- Is the unit represented on a precise plan with clear measurements and boundaries?
- Can you prove that this individualisation is accepted by the other co-owners (email exchanges, minutes, testimonies)?
- Have you documented the distribution of common charges over the last 3 years?
- Are the common parts (staircase, hall, roof) clearly identified and their shared use formalised?
- Does the deed of sale provide for a clause detailing precisely what is sold and the applicable rules?
If you answer "yes" to all these questions, the sale is possible. If even one answer is "no", consult a professional before signing anything.
Find yourself 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 →
