Volume Co-ownership: The Court of Cassation Clarifies the Conditions (Necessity of Common Parts)

Imagine: you have just bought a flat in Le Barcarès, in a development with a swimming pool and gardens. You receive your title deed, and there, surprise: it mentions "units" and a "division description". You wonder: am I in co-ownership? And if so, what are the common parts? This seemingly simple question has given rise to significant litigation, resolved by the Court of Cassation in a judgment of 8 September 2010. But what exactly did it decide? And above all, what does it change for you?

The Court of Cassation overturned a decision of the Court of Appeal which had recognised the existence of a co-ownership solely on the ground that a division description had been published, without verifying whether there were actually any common parts. In short, having a document that divides a building into units is not enough to create a co-ownership. In addition, these units must be linked by common parts (corridors, roof, land, etc.). This decision is fundamental for all those who own or plan to acquire a property in a development divided into units, as is often the case in tourist areas such as Prades or Le Barcarès.

Why is this distinction so important? Because the co-ownership regime (Law of 1965) imposes strict rules: general meetings, charges, quota shares, etc. If this regime is applied to you without the conditions being met, you can contest it. Conversely, if you are in co-ownership without knowing it, you risk not being able to assert your rights over the common parts. In other words, this decision clarifies the scope of the law, and it has immediate practical consequences.

The Facts: A Story That Happens Every Day

Mr. X, owner in Le Barcarès of a property development consisting of several buildings, had divided his constructions into units (for example, flats, parking spaces, shops) and published a division description at the land registry. Among these units, six had been allocated to Mr. Y. Mr. Y then transferred units 4, 7 and 8 to Mrs. Z. Later, unit 7 was divided into two new units (9 and 10), thus removing the original unit 7. Mrs. Z thus became the owner of several units in this development.

A disagreement arose between the owners: some considered that they were in co-ownership, others did not. The case was brought before the Court of Appeal, which, based on the division description and the successive sale deeds, declared that there was indeed a co-ownership between the owners of the units, a "volume co-ownership". In essence, the Court of Appeal considered that the mere fact of having divided the building into units and having sold them to different people automatically creates a co-ownership.

But it is not that simple. The contesting owners appealed to the Court of Cassation. They argued that there were no common parts, and therefore no co-ownership. The Court of Cassation agreed: it censured the Court of Appeal for failing to establish the existence of common parts. In other words, the Court of Appeal did not check whether the units were connected by common elements (roof, load-bearing walls, floors, etc.). Without this check, the classification of co-ownership is unfounded.

The Reasoning of the Court — Analysed

The core of the legal problem is as follows: for there to be co-ownership within the meaning of the Law of 10 July 1965, there must be both a division of the building into units (each comprising a private part and a quota share of common parts) and the existence of common parts. The Court of Cassation recalls this fundamental principle: "Does not give a legal basis to its decision the Court of Appeal which, in order to hold that constructions are subject to the co-ownership regime, constituting a 'volume co-ownership', relies on the fact that it appears from a division description, published at the land registry, that these constructions have been divided into units, allocated to several co-owners, without establishing the existence of common parts."

In other words, the publication of a division description is merely a formality. It does not, by itself, create the co-ownership regime. It must be proved that common parts exist materially and legally. In this case, the Court of Appeal did not investigate whether the units shared common elements (access, roof, foundations, etc.). It merely relied on the existence of a division into units. That is insufficient.

This reasoning is in line with the constant jurisprudence of the Court of Cassation: it requires a concrete analysis of the configuration of the premises. However, note: this is not a reversal, but a confirmation. The trial judges must verify on a case-by-case basis whether the conditions for co-ownership are met. What few people know is that this decision also applies to "volume co-ownerships", i.e. complex property developments (several buildings, different levels) where the concept of common parts may be less obvious.

What This Changes for You — Concretely

This decision has very concrete implications for owners, purchasers and even real estate professionals.

If you are the owner of a unit in a property development (for example a flat in a residence in Prades): you must check whether your property is actually subject to the co-ownership regime. Do not rely solely on the division description. Look at your co-ownership regulations (if they exist) and, above all, examine the configuration of the premises: are there common parts? If not, you could contest the application of the 1965 Law, which may have consequences on the payment of charges, the holding of general meetings, etc.

If you are a purchaser: before signing a preliminary sale agreement, ask to see the co-ownership regulations and the division description. But above all, make sure that the common parts are clearly identified. undefined, I have come across cases where purchasers ended up with high co-ownership charges without ever having been summoned to a general meeting, because the property was not in co-ownership. Concrete example: in Prades, a client bought a unit in an old farmhouse divided into three flats. The division description mentioned units, but there were no common parts (each flat had its own independent entrance, no shared roof). The Court of Cassation would have said: no co-ownership. Result: my client was able to avoid paying undue charges.

If you are a landlord: this decision may affect the apportionment of charges between tenants. In co-ownership, certain charges are recoverable (maintenance of common parts, etc.). If the co-ownership regime is not applicable, the apportionment of charges must be provided for in the tenancy agreement, otherwise it may be contested.

In practice, if you are in doubt, do not hesitate to consult a lawyer lawyer. A simple analysis of your title deed and supporting documents can save you a lot of trouble.

Four Tips to Avoid This Type of Dispute

• Check the existence of common parts before buying. Do not rely solely on the division description. Go to the property, identify common elements (stairs, corridors, roof, garden, etc.). If no space is shared, there is probably no co-ownership.
• Insist on co-ownership regulations upon sale. The co-ownership regulations are the document that defines the rights and obligations of co-owners. If they do not exist, or are incomplete, this may be a sign that the property is not in co-ownership. In that case, ask the seller to clarify the situation.
• Use a competent notary. The notary is required to inform you of the legal status of the property. Do not hesitate to ask precise questions: "Are there common parts? Am I in co-ownership?" If he hesitates, seek additional legal advice.
• Keep all documents. In case of dispute, the division description, co-ownership regulations, sale deeds and correspondence are essential. Have them scanned and filed carefully.

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Further Reading: Related Jurisprudence and Developments

This decision is part of a broader jurisprudence on the concept of co-ownership. For example, in a judgment of 3 March 2010 (No. 09-10.398), the Court of Cassation had already ruled that the existence of a division description does not suffice to characterise a co-ownership, in the absence of common parts. More recently, in 2018, the Court recalled that co-ownership can only result from the will of the parties or the configuration of the premises, and not from a mere administrative formality.

The trend of the courts is therefore clear: they require a concrete and rigorous analysis. This means that, for complex property developments (such as holiday residences, shopping centres, etc.), it is imperative to draft precise co-ownership regulations and to describe the common parts carefully. Failing that, the co-ownership regime could be set aside, leading to management difficulties.

For the future, it can be expected that the judges will be increasingly strict on this point. If you are involved in a property transaction (developer, notary, lawyer), be vigilant: a poorly drafted or incomplete division description can jeopardise the entire arrangement.

What You Must Absolutely Remember

FAQ: 5 Key Questions

1. Q: Is a division description sufficient to create a co-ownership? R: No. The Court of Cassation also requires the existence of common parts. Without them, there is no co-ownership.
2. Q: How do I know if my property is in co-ownership? R: Check your title deed, the division description and the co-ownership regulations. Above all, examine the premises: are there common parts (corridor, roof, garden)? If not, you are probably not in co-ownership.
3. Q: What should I do if I am in co-ownership without knowing it? R: Consult a lawyer. You could contest the application of the 1965 Law and recover unduly paid charges.
4. Q: What are the risks if I am not in co-ownership but I act as such? R: You could be sued for violation of the co-ownership rules (for example, unilateral decision on common parts). Conversely, you could be deprived of rights over those parts.
5. Q: Can I create a co-ownership voluntarily? R: Yes, by a notarial deed establishing co-ownership regulations and a division description, provided there are common parts.

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