Reference Decision: cc • No. 07-11.801 • 2008-03-27 • View the decision →
Imagine you own an apartment in Parentis-en-Born, with a private terrace overlooking the building's roof. You have been using it for years, even paying a specific share of the maintenance charges. One day, you decide to sell and present this terrace as an integral part of your co-ownership lot. But is it really?
This question, much more common than one might think, arises in many co-ownerships in the South-West, from residences in Tarnos to buildings in the city centre of Mont-de-Marsan. Owners often think that when they benefit from exclusive use of a common space and bear its charges, that space becomes their private property. But what is the reality?
The Court of Cassation, in a decision dated 27 March 2008, provided a clear answer that continues to set precedent today. This decision, often unknown to non-lawyers, has concrete implications for all those living in co-ownership or considering investing in it.
The Facts: A Story as Common as Any
The story begins in an ordinary co-ownership, similar to those I regularly encounter in the jurisdiction of Mont-de-Marsan. Mr. Dupont, owner of an apartment, benefited from an exclusive right of enjoyment (i.e., a right of use reserved for him alone) over part of the roof-terrace of the building. This terrace was, however, a common part under the 1965 law on co-ownership.
For years, Mr. Dupont used this terrace as an extension of his apartment. He had installed plants, garden furniture, and even a small storage shed. In the co-ownership regulations, it was mentioned that he had to bear a share (a proportional part) of the maintenance charges for this terrace. This situation seemed so normal to him that he came to consider this terrace as his private property.
The trouble began when he wanted to sell his apartment. In the deed of sale prepared by the notary, he presented the terrace as an integral part of his co-ownership lot, i.e., as a private part. The co-owners' association (the group of owners organised as an association) objected, arguing that the terrace remained a common part, even with an exclusive right of use.
The conflict escalated. Mr. Dupont first applied to the tribunal d'instance, then to the court of appeal, each time in vain. He finally brought the case before the Court of Cassation, hoping that the highest French civil court would rule in his favour. His main argument? Since he bore a specific share of the charges for this terrace, it should be considered his private property.
This type of situation is not rare. undefined, I have encountered cases where owners in Tarnos thought they could fence off common courtyards, or in Parentis-en-Born where roof terraces were fitted out without authorisation from the association. The confusion between right of use and right of ownership is frequent, and often a source of costly disputes.
The Court's Reasoning — Analysed
The Court of Cassation examined this case with great legal rigour. The judges recalled the essential legal basis: Article 3 of the Law of 10 July 1965 establishing the status of co-ownership of built properties. This article clearly distinguishes private parts (those reserved for the exclusive use of a co-owner) from common parts (those intended for the use of all co-owners).
In other words, the law establishes a fundamental distinction between what belongs exclusively to each co-owner and what belongs to all. This distinction is not a mere formality: it has major legal consequences on each person's rights, the charges to be borne, and even the possibility of selling or modifying the premises.
The court analysed Mr. Dupont's arguments. He maintained that since his exclusive right of enjoyment was allocated a share of common parts corresponding to the charges he had to bear, this terrace should be assimilated to a private part. In short, he thought that paying for something equated to owning it.
But the judges rejected this argument. They emphasised that an exclusive right of enjoyment, even accompanied by a share of charges, remains a mere right of use. It is not a right of ownership. The proof? Mr. Dupont could not freely dispose of this terrace: he could not sell it separately from his apartment, nor substantially modify it without the agreement of the association.
What few people know is that this decision confirms consistent case law. For decades, courts have reiterated that the nature of a part (private or common) depends on its original purpose, not on the terms of use or financing. A space designed as common from the outset remains common, even if only one co-owner has exclusive use of it.
Caution, however: this does not mean that exclusive rights of enjoyment are without value. They are perfectly valid and can even be sold with the co-ownership lot. But they do not transform a common part into a private part. This nuance, subtle but essential, is at the heart of the decision.
What This Means for You — Practically
But what exactly does this change in your daily life? The practical implications are numerous and vary depending on your situation.
If you are a landlord (i.e., an owner who rents out their property), this decision directly concerns you. Imagine you rent out an apartment in Tarnos with a private roof terrace. You must check in the co-ownership regulations whether this terrace is a common part with an exclusive right of use, or a true private part. In the first case, you cannot authorise your tenant to carry out works without the agreement of the association. A simple installation of an awning or pergola could trigger a conflict.
For tenants, the distinction is equally important. If you rent an apartment with a space presented as "private", verify its true nature. An exclusive right of enjoyment does not give you the same freedoms as a private part. You might be required to dismantle fittings at the end of the lease, or see your use restricted by a decision of the general meeting of co-owners.
Buyers must be particularly vigilant. When you purchase a property in co-ownership, read the descriptive schedule of division carefully. A space presented as a "private part" when it is actually a common part with an exclusive right of use can represent an error of several thousand euros in the price. In the jurisdiction of Mont-de-Marsan, I have seen valuation differences of up to €15,000 for 20m² terraces, depending on whether they were true private parts or rights of use over common parts.
For co-owners already in place, this decision reminds us of the importance of the co-ownership regulations. If you benefit from an exclusive right of enjoyment, you must respect the limitations attached to it. You cannot, for example, transform a common terrace into a habitable room without the unanimity of the co-owners. Sanctions can range from the obligation to restore the premises to substantial damages.
How to react if you discover that your "private property" is actually only a right of use? The first step is to consult your co-ownership regulations and the minutes of general meetings. If confusion persists, a consultation with a specialised lawyer can save you years of litigation.
Four Tips to Avoid This Type of Dispute
- Read your co-ownership regulations carefully before any purchase or fitting-out: clearly identify what is a private part and what is a common part with an exclusive right of use. Do not rely on the terms used by the seller or estate agent.
- Have the descriptive schedule of division checked by a professional: a notary or specialised lawyer can identify inconsistencies between spaces presented as private and their true nature. This preventive check costs less than a lawsuit.
- Always obtain written agreement from the association for works on common parts: even for minor works on a space you have exclusive use of, proper authorisation protects you from subsequent claims.
- Document the origin of your right of use: keep the minutes of general meetings that allocated the exclusive right of enjoyment, as well as all subsequent modifications. This documentation will be essential in case of sale or dispute.
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In-Depth Analysis: Related Case Law and Developments
The 2008 decision fits into consistent case law. Already in 1995, the Court of Cassation ruled in a judgment of 4 July that "an exclusive right of enjoyment over a common part does not confer a right of ownership on its holder". This position has never been challenged since.
More recently, in a judgment of 13 January 2016, the third civil chamber clarified that even when the exclusive right of enjoyment is perpetual and accompanied by a specific share of charges, it does not transform the common part into a private part. This clarification is important because it closes the door to any attempt at "transformation" through duration or financing.
What this case law shows is a trend of courts protecting the collective character of common parts. Judges are vigilant against attempts at individual appropriation of spaces designed as common. This protection is explained by the need to preserve the balance between co-owners and avoid neighbourhood disputes.
For the future, this trend should continue. With urban densification and the scarcity of outdoor spaces in cities like Mont-de-Marsan, conflicts over terraces, courtyards, and roofs will probably increase. The current case law provides a clear framework, but it requires increased vigilance from owners and real estate professionals.
What You Must Absolutely Remember
1. An exclusive right of enjoyment is not a right of ownership: even if you have exclusive use of a space and pay its charges, this space remains a common part.
2. Always verify the true nature of spaces: do not rely on terms, consult the co-ownership regulations and the descriptive schedule of division.
3. The consequences are concrete: you cannot sell a right of use separately, nor carry out works without authorisation from the association.
4. In case of doubt, consult a professional: a preventive check by a specialised lawyer can save you years of litigation and thousands of euros in costs.
5. Document everything: keep the minutes, authorisations, and correspondence concerning your right of use.
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