Division of a Unit in a Condominium: Impossible Without the Consent of the General Meeting

Imagine the scene: in Mandelieu-la-Napoule, the owner of a flat with a garden decides, without asking anyone, to divide their unit into two studios to rent them out separately. They have a new division plan drawn up, modify the partitions, and install an extra kitchen. Everything seems in order… until the day the managing agent gives them formal notice to restore everything to its original state. The owner protests: 'It's my unit, I can do what I want with it!'

This question is asked by hundreds of co-owners every year in the Alpes-Maritimes. Can I divide my unit without the consent of the others? The answer is clearly no, as the Court of Cassation reminded in a landmark judgment of 17 March 1976. And this rule, often unknown, can prove very costly for those who break it.

In this article, I explain why the division of a unit is subject to a collective decision, what exactly the 1976 case law says, and how to avoid a dispute that could ruin you. Whether you are an owner in Vallauris, an investor in Cannes, or a co-owner in Grasse, these rules affect you.

The facts: a story like those that happen every day

In the mid-1960s, the company Guigue et Thomassin built a condominium development called 'Le Parc Saint-Didier'. To organise communal life, it drafted a set of by-laws and a descriptive state of division (a document describing each unit with its area, private and common parts). The general meeting of co-owners then had only a limited role: to approve what the by-laws had not provided for.

But a co-owner, owner of a unit, decided to divide it into several separate units without consulting anyone. They considered that their exclusive ownership right over their unit allowed them to dispose of it freely. The division was recorded, and the new units were sold separately. Very quickly, tensions arose: the shares (quotas of common parts) no longer matched, the service charges were poorly allocated, and some co-owners considered themselves prejudiced.

The matter was brought before the courts. The co-owner argued their right of ownership, guaranteed by Article 544 of the Civil Code (the right to enjoy and dispose of things in the most absolute manner). The other co-owners and the managing agent invoked the contractual nature of the by-laws and the descriptive state of division. The Court of Appeal ruled in favour of the opponents, and the co-owner appealed to the Court of Cassation.

The Court of Cassation, in its judgment of 17 March 1976, dismissed the appeal. It held that the descriptive state of division, whether or not included in the by-laws, is a contractual document. Its modifications must therefore be approved by the general meeting of co-owners. A co-owner cannot, by their own will alone, divide a unit belonging to them.

The reasoning of the court — explained

The reasoning of the judges is simple but powerful. They rely on the legal nature of the by-laws and the descriptive state of division. Article 1 of the Law of 10 July 1965 (law relating to condominium) provides that the by-laws determine the purpose of the private and common parts, and the descriptive state specifies the content of each unit. Together, they form the 'condominium contract' that binds all co-owners.

Now, a contract cannot be modified unilaterally by one of the parties. This is a fundamental principle of contract law, set out in Article 1103 of the Civil Code (formerly 1134): agreements lawfully entered into take the place of law for those who have made them. Modifying the descriptive state is modifying the contract. And only the general meeting, which expresses the collective will, can do so, by the majority required by law (majority under Article 26 for modifications of the allocation of service charges, for example).

The Court thus dismissed the argument of absolute ownership right. It recalled that condominium ownership is a 'special' form of ownership, where the right of each co-owner is limited by the rights of others and by the by-laws. In other words, you own your unit, but not the allocation of shares or the configuration of neighbouring units. However, note: this rule does not concern mere internal alterations that do not modify the descriptive state. If you knock down a non-load-bearing partition in your flat, you do not need the consent of the general meeting. On the other hand, if this creates a new unit, it is a modification of the descriptive state.

What few people know: the 1976 decision has been confirmed by many subsequent judgments, such as the judgment of the 3rd Civil Chamber of 9 March 1994 (No. 92-12.585) or that of 8 June 2011 (No. 10-19.602). The case law is constant: the division of a unit is a modification of the descriptive state subject to the approval of the general meeting.

undefined, I have come across cases where co-owners had divided their unit without authorisation, and were ordered to restore the premises to their original state under a penalty of €100 to €500 per day of delay. Not to mention legal fees and damages. An error that can cost several tens of thousands of euros.

What this means for you — in practical terms

For a landlord owner in Vallauris: you have a large flat that you want to divide into two studios to increase your rental income. Without the consent of the general meeting, this is impossible. You must first obtain authorisation at a general meeting, by the majority required under Article 26 (majority of votes of all co-owners). Then, have a new descriptive state drawn up by a chartered surveyor, and register it with the land registry. Allow €2,000 to €5,000 in costs, and several months of procedure.

For a buyer: you are buying a unit in a condominium in Mandelieu. Check that the unit has not been divided without authorisation. Ask the seller for the minutes of the general meeting that authorised the division. If not, you risk buying an 'irregular' unit that the managing agent can challenge, and you could be forced to restore it at your own expense. A concrete example: Mr X, an owner in Grasse, bought a unit divided into two studios without knowing that the division had not been authorised. The managing agent sued the seller and the buyer. Result: Mr X had to restore the premises (€10,000 in works) and lost the rental income from the studios (€2,000 per month for 6 months).

For a co-owner: if you notice that a neighbour has divided their unit without authorisation, you can take action. You can notify the managing agent, who must convene a general meeting to regularise or require restoration. If the managing agent does nothing, you can take legal action to stop the disturbance. But beware: the limitation period (time to act) is 10 years from the division. After this period, the division may be considered as acquired if it has not been challenged.

For a developer: you must be particularly careful when creating a condominium. The descriptive state must be precise and not allow subsequent divisions without consent. If you plan for 'divisible' units, mention it in the by-laws to avoid any dispute.

Four tips to avoid this type of dispute

• Check the descriptive state before any division project: Consult the by-laws and the descriptive state of division. If they prohibit or require authorisation for division, you know what you have to do. A chartered surveyor can help you understand the documents.
• Obtain a written consent from the general meeting: Do not settle for a verbal agreement from the managing agent or a few neighbours. Only a resolution passed at a general meeting, recorded in the minutes, constitutes authorisation. Prepare a precise draft resolution (number of units created, shares, new service charges).
• Use a professional to modify the descriptive state: Once consent is obtained, have a new descriptive state drawn up by a chartered surveyor or a notary. This document must be registered with the land registry to be enforceable against third parties.
• Anticipate the impact on service charges: The division modifies the allocation of service charges (general, special, lift…). Make a precise calculation of the new shares to avoid later challenges. A miscalculation can lead to legal action for revision of service charges.

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

Further reading: related case law and developments

The 1976 decision is part of a consistent line. One can cite the judgment of the 3rd Civil Chamber of 9 March 1994 (No. 92-12.585) which recalls that the division of a unit modifies the descriptive state and requires the consent of the general meeting. More recently, the judgment of 8 June 2011 (No. 10-19.602) specifies that even if the division is carried out without modification of the common parts, it remains subject to authorisation because it affects the content of the units.

A notable development: the ALUR law of 2014 strengthened the powers of the general meeting regarding modification of the descriptive state, requiring a reinforced majority (Article 26) for any modification of the allocation of service charges. Previously, a simple majority under Article 24 sometimes sufficed. Now it is more difficult.

What about divisions carried out before 1976? Case law admits that they can be regularised by a decision of the general meeting, but beware of acquisitive prescription (ownership by thirty-year possession). In a judgment of 13 January 2015 (No. 13-27.070), the Court of Cassation held that the division of a unit without authorisation cannot be regularised by mere possession if the by-laws prohibited it.

Checklist before acting

1. Have I consulted the by-laws and the descriptive state? Check the clauses relating to the division of units.
2. Have I obtained authorisation at a general meeting? The resolution must be adopted by the required majority (often Article 26).
3. Have I had a new descriptive state drawn up by a chartered surveyor? This document must be precise (areas, shares, common parts).
4. Have I registered the modification with the land registry? Without registration, the division is not enforceable against third parties.
5. Have I informed the managing agent and the co-owners? Transparent communication avoids conflicts.

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 →