Right of exclusive use over common parts: does not constitute a unit of co-ownership

Imagine: you are in Nice, you buy a flat with an adjoining parking space. The co-ownership regulations indicate that this space is a "unit" and allocates you shares. You think you own this space. But one day, the managing agent tells you that it is only a right of exclusive use over a common part. What difference does it make? And above all, what are your rights?

This question, which seems technical, has very concrete consequences: sale, letting, works, opposition from other co-owners. The Court of Cassation ruled in a judgment of 6 June 2007: a right of exclusive use over common parts is not a right of ownership and cannot constitute the private part of a co-ownership unit. Explanations.

But what exactly does that change for you, owner in Grasse, Vallauris or elsewhere? Let's delve into this decision which is still binding today.

The facts: a story like many that happen every day

Mr X, owner of a flat in Nice, acquired a unit comprising, according to the co-ownership regulations, a parking space classified as a "unit" with corresponding shares. He therefore considers himself the owner of this space. But the co-owners' association disputes this: according to it, it is a common part with exclusive use. The dispute arises when Mr X carries out works on this space (installation of an awning, modification of boundaries) without authorisation from the general meeting. The association sues him to stop these works and obtain damages.

At first instance, the court rules in favour of the association: the space is a common part, Mr X only has a right of use, he cannot modify the premises without agreement. Mr X appeals. The Aix-en-Provence Court of Appeal confirms. He appeals to the Court of Cassation.

Mr X argues that the regulations classify the space as a "unit" and allocate him shares, which would make it a private part. He invokes Article 544 of the Civil Code (right of ownership) and the articles of the Law of 10 July 1965 on co-ownership. The association retorts that the classification of "unit" in the regulations is not decisive if the space is structurally a common part (floor, walls, roof).

The Court of Cassation must decide: can one own a common part?

The reasoning of the court — broken down

The Court of Cassation dismisses Mr X's appeal. It recalls the fundamental principle of co-ownership law: common parts are the undivided property of all co-owners (Article 2 of the Law of 10 July 1965). A right of exclusive use, even if attributed to a unit, does not confer ownership of the common part. In other words, you may have exclusive use of a corridor, a garden or a parking space, but you are not the owner of it.

The high court specifies that the classification of "unit" in the co-ownership regulations and the allocation of shares are not sufficient to turn a common part into a private part. To be private, a part must be "proper to the co-owner" and not allocated for the use of all. However, a parking space, even if allocated, remains a common part because it is used for parking, a collective use.

This decision is a confirmation of previous case law. It follows in the line of the judgment of the 3rd Civil Chamber of 9 March 1994 (No. 92-14.720) which had already held that a right of exclusive use over a common part does not constitute a right of ownership. However, what few people know is that the distinction is crucial for works. An owner can freely modify his private parts (subject to the regulations), but for a common part, even with exclusive use, he must obtain authorisation from the general meeting.

In short, the judges considered that the nature of the part (common or private) depends on its purpose and structure, not on the classification given by the regulations. If you have any doubt, check the objective criteria: is the parking space delimited by partitions? Does it have independent access? If not, it is probably a common part.

What this changes for you — concretely

The practical implications are numerous:

• For the buyer: If you buy a flat with a parking space classified as a "unit", do not assume that you own it. Ask the seller to justify the classification. If it is a right of exclusive use, the price should be lower. For example, in Vallauris, a private parking space is worth around €15,000, while a right of exclusive use is negotiated around €5,000.
• For the landlord owner: You cannot let the parking space separately if it is a common part with exclusive use. Accessory letting with the flat is possible, but be careful not to create an independent unit.
• For the co-owner: You cannot fence off your space, build a shelter on it or modify it without authorisation from the general meeting. If you do, the managing agent can ask you to restore the premises and claim damages.
• For the managing agent: He must ensure that the regulations are clear. If units are incorrectly classified, a general meeting must be convened to rectify them.

If you are in this situation, you must check your co-ownership regulations and the division plan. If the space is classified as "common part with exclusive use", you cannot dispose of it freely. A concrete example: in Nice, a co-owner had to pay €2,000 in legal costs for installing a roller shutter on his parking space without authorisation.

Four tips to avoid this type of dispute

• Consult the co-ownership regulations before buying: Do not rely solely on a visit. Read the division plan and check the classification of common parts. A notary can help you.
• Require a warranty from the seller: If the seller claims that the space is private, ask him to put it in writing in the sale deed and to guarantee this classification. In case of dispute, you can take action against him.
• Do not carry out works without authorisation: Even if you think you are the owner, any modification of a common part requires a vote at the general meeting. Otherwise, you risk an action for restoration.
• If in doubt, ask the managing agent: The managing agent is obliged to provide you with the necessary documents. If the regulations are ambiguous, ask for a general meeting for clarification.

Further reading: related case law and developments

This decision is part of consistent case law. Already in 1994 (Civ. 3e, 9 March 1994, No. 92-14.720), the Court of Cassation had held that a right of exclusive use over a terrace does not confer ownership. More recently, in 2019 (Civ. 3e, 4 July 2019, No. 18-16.357), it specified that even if the regulations classify a courtyard as a "private part", its nature as a common part can be recognised if it is necessary for the use of the building.

The trend is therefore protective of co-owners' rights: a right of exclusive use remains a precarious right, revocable by the general meeting (except in case of abuse). This means that, theoretically, other co-owners could decide to remove this right, subject to compensation.

For the future, be vigilant: if you buy a parking space or an allocated garden, ask for a certificate from the managing agent confirming the classification. In Grasse, some developers have already been convicted for selling common parking spaces as "private units".

Checklist before acting

• If you are a buyer: Check the co-ownership regulations. If the space is classified as "common part with exclusive use", negotiate the price. Require a warranty clause.
• If you are a co-owner: Before carrying out works, ask the managing agent for advice. If necessary, convene a general meeting to obtain authorisation.
• If you are a managing agent: Ensure that the division plan is consistent with reality. In case of ambiguity, propose a modification at the general meeting.
• In case of dispute: Gather the documents (regulations, general meeting minutes, correspondence). Consult a solicitor specialising in property law.

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

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 →