Public Domain: a leasehold regulation cannot privatise a communal structure

Imagine: you own a flat in Valbonne, in a charming leasehold development overlooking Place Saint-Nicolas. On the ground floor, there are covered arcades. For decades, the leaseholders have used them, maintained them, paid service charges for their repair. And one day, the commune tells you that these arcades are in fact public domain assets, that they belong to everyone, and that you have no exclusive rights over them. Surprising, isn't it?

This situation, however, is exactly what the Court of Cassation had to decide in a judgment of 25 February 2009 (No. 07-15.772). The judges recalled a fundamental principle of administrative law: public domain assets are imprescriptible (you cannot become owner by the passage of time) and inalienable (they cannot be sold or given away). A leasehold regulation, even an old one, cannot override this principle.

But what does this actually mean for you, as an owner in Sophia-Antipolis or elsewhere? This article explains everything simply, and gives you the keys to avoid finding yourself in a similar dispute.

The facts: a story like many that happen every day

Let's go back in time. In 1881, the commune of Valbonne (let's say) sold by auction (public auction) a building called "Casino", located on Place Saint-Nicolas. The conditions of sale provided, in Article 5, that the arcades on the ground floor "shall always remain in the public domain". The commune undertook to maintain the pavement and repair the ceiling. In short, these arcades were and remained public assets, open to all.

Decades later, the building was divided into leasehold lots. A leasehold regulation was drawn up, which included the arcades in the common parts of the leasehold. The leaseholders considered them as belonging to them, maintained them, and prohibited public access.

Until the day the commune challenged this. It brought the matter to court to have it declared that the arcades were indeed part of the communal public domain, and that the leasehold regulation was illegal on this point. The leaseholders resisted: "But we've been using them for over a hundred years! The leasehold regulation is binding!"

The court of first instance (the Tribunal de Grande Instance of Grasse, probably) ruled in favour of the commune. The leaseholders appealed, then appealed to the Court of Cassation. The Court of Cassation had to decide: can a leasehold regulation, by its mere existence, transfer an asset from the public domain into the private domain of a leasehold?

The reasoning of the court — dissected

The Court of Cassation answered in the negative, and its reasoning is clear. It first recalled the general principle: assets forming part of the public domain are imprescriptible (Article L. 3111-1 of the General Code of the Property of Public Persons). In other words, no one can become owner of them simply by using them for a long time, even decades. And they are inalienable: the commune cannot sell them, except through a declassification procedure (removal from the public domain).

Next, the Court examined the leasehold regulation. This purported to include the arcades in the common parts of the leasehold. But the Court held that this document could not have the effect of removing a public structure from the public domain. Why? Because the public domain is defined by law and by the asset's allocation to public use or to a public service. A contract between private individuals (the leasehold regulation is a contract) cannot modify this status of public policy (i.e., which binds everyone, even without agreement).

What few people know: the Court did not merely say "the regulation is void", it stated that the commune never lost ownership of the arcades. The 1881 conditions of sale were clear: the arcades "shall always remain in the public domain". This is not merely a contractual clause; it is a recognition of the public allocation. And this allocation never ceased, even if the leaseholders physically occupied the premises.

In short: a leasehold regulation cannot "privatise" an asset which, by its nature or allocation, belongs to the public domain. The judges thus confirmed constant case law: acquisitive prescription (becoming owner by the passage of time) does not apply against the public domain. The leaseholders lost their case.

What this means for you — concretely

This decision has very concrete implications, whether you are an owner, tenant, or leaseholder.

If you are a leaseholder: you must check that the common parts of your leasehold do not mistakenly include assets that might belong to the public domain. For example, a square, a path, a public garden, an arcade. If so, the commune can demand restoration and you cannot rely on your leasehold regulation to maintain exclusivity. undefined, I have come across cases in Sophia-Antipolis where a housing development had included a public access road in its regulation: the commune obtained the nullity of the clause and the reopening of the road.

If you are an owner-landlord: be careful when buying a property in a leasehold. If the property includes disputed common parts, their value may be called into question. You could lose rights of use that you thought were acquired.

If you are a buyer: before buying a leasehold lot, ask your notary to check whether the leasehold regulation includes assets that could be public. This may concern green spaces, car parks, terraces. In case of doubt, a consultation with a lawyer property lawyer (like me) can save you from an unpleasant surprise.

If you are a tenant: you benefit from the owner's rights, but you are not directly affected by this dispute. However, if your owner loses a case on this ground, it may affect your enjoyment of the premises (e.g., loss of a private access).

In practice, a dispute of this type can last several years (3 to 5 years on average) and cost several thousand euros (lawyer's fees, expert reports, etc.). Prevention is better than cure.

Four tips to avoid this type of dispute

• Check the history of the property: before buying or modifying a leasehold regulation, consult the land registry, old deeds of sale (like the 1881 conditions of sale in our case) and ask the town hall about the status of common spaces. An asset may be classified as public domain even if it is not maintained by the commune.
• Do not rely on use: the fact of using an asset for decades does not make you the owner if it is on the public domain. Prescription (acquisition by time) does not apply. Do not assume a space is private because no one has complained.
• Use a notary or lawyer lawyer: when drafting or modifying a leasehold regulation, a professional will identify problematic clauses. In Valbonne or Sophia-Antipolis, lawyers like me are familiar with these local issues.
• In case of doubt, seek a consultation: if you have a disagreement with your leasehold or the commune, do not let the situation escalate. A 30-minute consultation can clarify your rights and save you from an expensive lawsuit.

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

Further reading: related case law and developments

This 2009 decision is part of consistent case law. As early as 1892, the Council of State (in the "Commune de Saint-Jean-de-Luz" case) affirmed that public roads cannot be acquired by prescription. More recently, the Court of Cassation confirmed this principle in a judgment of 6 May 2003 (No. 01-12.066): a private individual cannot become owner of a beach plot by prescription, even after 30 years of use.

The trend is therefore clear: judges strictly protect the public domain. However, there is an exception: declassification. A commune may voluntarily remove an asset from the public domain (for example, to sell it), but this requires a formal resolution and decommissioning (the asset is no longer used for the public). Without this procedure, the asset remains public.

For the future, it is possible that disputes may arise over mixed assets (e.g., a shopping arcade open to the public but managed by a leasehold). The boundary between public and private domain can be blurred. In such cases, judges look at the actual allocation: does the public have free access? Does the commune maintain it?

What you absolutely must remember

FAQ:

1. Can I become owner of a public domain asset if I have used it for more than 30 years? No. Prescription does not apply against the public domain. You cannot acquire a public asset by use, even prolonged.
2. Can a leasehold regulation make a public space private? No. It is void on this point. The commune can seek annulment of the clause and restoration.
3. What are my remedies if the commune claims an asset I thought was private? You can challenge this before the judicial court (Tribunal de Grande Instance). But you must prove that the asset is not public (lack of public allocation, decommissioning, etc.). Chances of success are low if the asset is clearly public.
4. What if I was in good faith? Good faith does not affect imprescriptibility. You must return the asset, without compensation.
5. What can I do to secure my investment? Before buying, have the status of common parts checked by a professional. If you already own and have doubts, consult a lawyer.

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 →