Common Courtyard and Purpose of the Premises: When a Co-owner Goes Too Far

Imagine: you live in Danjoutin, in an old house with a common courtyard. For years, you park your car there, your children play there. One day, a neighbour, who also owns a share of this courtyard, decides to set up a car repair workshop there. The noise, the smells, the comings and goings… How far can he go without your consent? This question is asked by hundreds of property owners every year. And the answer is not always obvious.

The Court of Cassation, in a judgment of 5 November 2014 (No. 13-11.304), reminds us of an essential principle: the use of a common courtyard by a co-owner (co-owner of an undivided property) must not be contrary to the purpose of the premises. But who decides what is consistent or not? The lower courts, the Court tells us. In other words, it is for the court to decide on a case-by-case basis.

This judgment, although technical, has very concrete consequences for you. Whether you are an owner, tenant, or simply co-owner of a shared courtyard or garden, it sets the limits of what you can do without the agreement of others. Let's dive into this case.

The Facts: A Story That Happens Every Day

In this case, two neighbours are tearing each other apart over a common courtyard. Mrs. Y. and the real estate company (SCI) La Haie Meriais are undivided owners of a courtyard located in Valdoie. The SCI, which owns an adjacent building, uses the courtyard to store equipment, carry out repairs, and leave vehicles waiting. In short, it makes a quasi-professional, even industrial, use of it.

Mrs. Y., who lives next door, struggles with the noise, smells, and constant traffic. She sues the SCI to obtain the cessation of abnormal neighbourhood disturbances and damages. The first instance court partially rules in her favour, finding that the nuisances exceed normal neighbourhood inconveniences. But the SCI contests: according to it, the courtyard is common, it has the right to use it as it sees fit, and Mrs. Y. does not prove her alleged disturbances.

The case goes to appeal, then to cassation. The central question: is the SCI's use of the courtyard consistent with the purpose of the premises? The Besançon Court of Appeal had ruled that it was, based on the fact that the co-ownership regulations (or the deed of undivided ownership) did not provide for any particular restriction. But the Court of Cassation censures this reasoning: it is not because no text prohibits it that the use is automatically consistent. The lower courts must assess independently whether the disputed use is compatible with the normal purpose of the courtyard, taking into account local circumstances.

The Reasoning of the Court of Cassation — Analysed

The Court of Cassation (the highest French court) does not judge the facts, but verifies that the law has been correctly applied. Here, it criticises the Court of Appeal for not having sufficiently reasoned its decision. Indeed, the lower courts must examine whether the use of the courtyard by a co-owner is consistent with its purpose, i.e., the use to which it is destined by its nature, configuration, or the will of the parties.

The legal basis is Article 544 of the Civil Code (right of ownership), but also Article 1240 (formerly 1382) which penalises any abuse of the right of ownership causing damage to another. The Court recalls that "use contrary to the purpose of the premises, by a co-owner, of a common courtyard" falls within the sovereign assessment of the lower courts. In other words, the judge has a wide discretion to decide whether the use is abusive or not.

In this case, the SCI argued that the courtyard was an annex of its commercial building and that it could therefore use it freely. But the Court of Cassation considers that the Court of Appeal did not sufficiently explain why the commercial use was consistent with the purpose of the premises. It should have, for example, checked whether the courtyard was intended for the enjoyment of the residents, for passage, or for parking. By not doing so, it deprived its decision of a legal basis.

This judgment is neither a reversal nor a major evolution, but a confirmation of constant case law: in matters of undivided ownership, each co-owner may use the common property, but subject to respecting its purpose. The novelty is the reminder that the absence of a text does not suffice to justify any use.

What This Changes for You — Concretely

If you are the owner of a courtyard or garden in undivided ownership, you must know that your rights are not absolute. Even if no regulation prohibits it, you cannot transform a common courtyard into a car park, workshop, or storage area if it changes its purpose. In Valdoie, for example, a client told me that his neighbour had installed a garden shed in the common courtyard, reducing the space for children to play. The court ordered its demolition, ruling that the use was contrary to the purpose of leisure.

For tenants: you are not the owner, but you can act if another occupant (or the owner) uses the courtyard abusively. You can apply to the interim judge for a swift measure, such as an injunction under penalty (financial penalty per day of delay). The timeframe can be a few weeks, and lawyer fees vary between €1,500 and €3,000 depending on complexity.

For purchasers: before buying a property in undivided ownership, check the descriptive state of division and the co-ownership regulations. Ask your notary if there are any easements (rights of use) over the courtyard. Use contrary to the purpose can devalue your property: a courtyard used as a storage area reduces the value of a house by 10 to 20%, according to real estate professionals.

Finally, for co-owners in a building: similar rules apply to common parts. A co-owner cannot privatise a courtyard, install a barrier, or carry out works without authorisation from the general meeting. The 2014 judgment is a useful tool to challenge an abuse.

Four Tips to Avoid This Type of Dispute

• Consult the title deeds before any development. The sale deed or co-ownership regulations often mention the purpose of the common parts. If not, contact the managing agent or notary. A simple check can avoid years of litigation.
• Obtain written agreement from the other co-owners. For any new use (storage, parking, works), seek express written consent. A verbal agreement is difficult to prove and can be contested. Better to use a recorded delivery letter with acknowledgment of receipt or a general meeting resolution.
• Respect the peaceful use of the courtyard. Avoid noisy, smelly activities, or those that obstruct passage. If you need to store objects, do so in an orderly manner and for a limited time. The judge will consider your good faith if a conflict arises.
• In case of dispute, prioritise mediation. Before going to court, try conciliation with your neighbour or mediation by a professional. The cost (about €200 to €400 per session) is much lower than that of a trial (several thousand euros). Many courts now offer free or low-cost court-ordered mediation.

Further Reading: Related Case Law and Developments

This judgment fits into a consistent line of authority. Already in 2005, the Court of Cassation ruled that the installation of a satellite dish on a common terrace could be prohibited if it altered the appearance of the premises (Civ. 3e, 23 March 2005, No. 03-20.220). Similarly, in 2011, it recalled that the prolonged parking of a utility vehicle in a common courtyard could constitute an abnormal neighbourhood disturbance (Civ. 3e, 30 November 2011, No. 10-26.476).

The trend is therefore towards protecting the purpose of the premises, even in the absence of an express clause. The lower courts are increasingly attentive to concrete nuisances. In the future, one can expect courts to require precise justification from the co-owner who deviates from normal enjoyment.

For real estate professionals, this decision is a reminder: when drafting sale deeds or co-ownership regulations, it is prudent to clearly specify the purpose of each common part. Failing that, the judge can always intervene, with a margin of appreciation that may surprise the parties.

Checklist Before Acting

Practical FAQ:

• Can I install a pergola in the common courtyard? It depends on the purpose. If the courtyard is a passage or garden space, a light and removable pergola may be tolerated. A fixed structure requires the agreement of all co-owners or an authorisation from the general meeting.
• What if my neighbour uses the courtyard for his professional activity? Start by sending him a recorded delivery letter asking him to stop. If no response, apply to the interim judge. You can request an expert assessment and a penalty payment.
• What are the time limits to act? For abnormal neighbourhood disturbance, the limitation period is 5 years from the manifestation of the disturbance. For an infringement of property rights, you can act without time limit (real action).
• Can I obtain damages? Yes, if you prove a loss (loss of enjoyment, noise nuisance, depreciation of your property). The amount varies from a few hundred to several thousand euros depending on the duration and severity.
• Do I have to go through a lawyer? Before the judicial court, a lawyer is mandatory for disputes over €10,000. Below that, you can plead alone, but a lawyer will help you gather evidence and legally qualify your claim.

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