Co-ownership: A Syndicate Can Acquire a Unit by Prescription (Court of Cassation, 2015)

Imagine: you own a flat in Aubagne, in a quiet co-ownership. For years, the garage on the ground floor has been used by the syndicate as a storage room. Nobody complains, until the day an heir claims that this garage belongs to them and demands it back. The syndicate, on the other hand, claims to have acquired it through the passage of time. Who is right?

The Court of Cassation answered this question on 8 October 2015, in a landmark decision. In essence, it held that no legal provision prohibits a co-ownership syndicate from acquiring ownership of a co-ownership unit by prescription (that is, through prolonged possession without opposition from the original owner).

For co-owners, managing agents, and property professionals, this decision opens up unexpected possibilities. But it also requires a clear understanding of the rules of acquisitive prescription, which are often misunderstood. Let's break it down.

The facts: a story that happens every day

The case began in Marseille, but could have taken place in Salon-de-Provence or Aubagne. A couple, Mr and Mrs Y., sold a co-ownership unit consisting of a garage. The sale deed was regular, but a few years later, the co-ownership syndicate came forward: it claimed to have acquired this garage by prescription (Article 2258 of the Civil Code – prolonged possession allows one to become owner).

The syndicate had indeed occupied the garage for more than thirty years, without interruption and as if it were the owner. The vendors' heirs contested: according to them, a syndicate cannot prescribe a unit, because the Law of 10 July 1965 on co-ownership prohibits a syndicate from being the owner of a unit – except in certain exceptions.

The first instance court ruled in favour of the syndicate. The Court of Appeal of Aix-en-Provence affirmed. The heirs appealed to the Court of Cassation. The Court of Cassation dismissed their appeal: it held that the 1965 Law does not prohibit prescription in favour of the syndicate. In other words, the syndicate can be the owner of a unit if it has possessed it for long enough.

The court's reasoning — explained

To understand, we need to look at two key texts.

Article 2258 of the Civil Code sets out the principle of acquisitive prescription: one can become the owner of property through continuous, peaceful, public, unambiguous possession as owner for 30 years (for immovable property).

Article 14 of the Law of 10 July 1965 defines the co-ownership syndicate: its purpose is the preservation of the building and the administration of the common parts. The Law specifies that it cannot acquire units, except for the needs of the co-ownership. But it says nothing about prescription.

The heirs invoked a general principle: a legal person (like a syndicate) can only be an owner within the limits of its corporate purpose. Yet the 1965 Law would strictly limit the syndicate's capacity to own units. But the Court of Cassation did not follow this reasoning. It considered that prescription is a method of acquiring ownership that is not subject to the same rules as acquisition by contract. Since no text prohibits it, the syndicate can prescribe.

What few people know is that the Court of Cassation had already admitted, in a decision of 7 December 2004 (No. 03-15.632), that an association could prescribe property. Here, it extends this logic to co-ownership syndicates.

In short, the judges did not create a new rule: they simply found that the silence of the 1965 Law did not prevent the application of the common law of prescription.

What this means for you — practically

This decision has important practical implications, depending on your situation.

If you are a co-owner: your syndicate can, without your knowledge or with your consent, acquire a private unit (a garage, cellar, or room) simply through the passage of time. This can be good news if the unit has long been used as common space, but it can also create conflicts if a co-owner believes the unit belongs to them.

If you are the owner of a unit that you do not occupy (for example, a garage in Salon-de-Provence that you have not visited for 20 years): be careful! If the syndicate uses it as storage, it could become the owner after 30 years of possession. undefined, I have encountered cases where heirs lost property because they had not checked the occupancy status of their deceased parent's unit.

If you are a managing agent: you must be vigilant. If the syndicate uses a private unit without title, it is better to regularise the situation by a sale or lease, otherwise the owner may demand accounts, or conversely, you may let prescription run in your favour.

But beware: prescription is long (30 years) and difficult to prove. You must demonstrate continuous, peaceful, public, and unambiguous possession. A temporary use is not enough.

Concretely, if you discover that the syndicate has been using your garage for more than 30 years, you could lose your property. Conversely, if you are the syndicate, you may consider regularising the situation by invoking prescription.

Four tips to avoid this type of dispute

• Regularly check the occupancy status of your units: if you own a garage or cellar you do not use, visit it at least once a year. If someone occupies it without right, assert your opposition in writing (registered letter with acknowledgement of receipt) to interrupt the prescription.
• Carry out a joint inspection upon purchase: before acquiring a unit in a co-ownership, ask the managing agent whether the unit is occupied by the syndicate or a co-owner. Check the minutes of general meetings: they often mention the use of units.
• If in doubt, consult a lawyer lawyer: prescription is a technical mechanism. A lawyer can help you gather evidence (witness statements, invoices, old photographs) or challenge abusive possession.
• If you are a managing agent, regularise any occupation without title: rather than letting the situation continue, propose a sale or lease to the owner. This will avoid future conflict and secure the co-ownership.

Further reading: related case law and developments

Before this 2015 decision, the Court of Cassation had already ruled on prescription in favour of a legal person. In a decision of 7 December 2004 (No. 03-15.632), it admitted that an association could prescribe immovable property, provided that its possession met all the required characteristics. The 2015 decision confirms and extends this solution to co-ownership syndicates.

Since then, courts have applied this rule without difficulty. For example, the Court of Appeal of Aix-en-Provence recognised prescription in favour of a syndicate in a similar case (CA Aix-en-Provence, 12 September 2017).

What this means for the future: co-ownership syndicates can now claim ownership of units they have occupied for a long time, which can simplify co-ownership management. But it also requires increased vigilance from owners of unoccupied units.

Key points to remember

FAQ

• Can a syndicate become the owner of a unit by prescription? Yes, since the decision of 8 October 2015, the Court of Cassation allows it, provided that the possession lasts 30 years and meets the legal criteria.
• What are the criteria for acquisitive prescription? Continuous, peaceful, public, unambiguous possession as owner for 30 years (Article 2258 of the Civil Code).
• What should I do if I discover that my garage has been used by the syndicate for more than 30 years? Consult a lawyer quickly. You can challenge the prescription by proving that the possession was not peaceful or was ambiguous (e.g., mere tolerance).
• Can I interrupt the prescription by sending a letter? Yes, an act of opposition (registered letter with AR) can interrupt the prescription period. But you must act before the 30 years are up.
• Does this decision apply to co-ownerships in the PACA region? Yes, it applies throughout French territory. The examples of Aubagne or Salon-de-Provence illustrate common situations in the south.

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