Perpetual real right in co-ownership: a special right of enjoyment that does not expire

Imagine the scene: in Draguignan, you have just bought a lovely apartment in a co-ownership with a view of the garden. You are delighted, until the day a neighbour tells you that he has the right to use your terrace for his barbecues. You check your deed of sale: nothing is mentioned. Yet the neighbour brandishes an old 1972 co-ownership regulation. Who is right? This question is asked by hundreds of owners every year. The decision of the French Supreme Court of 7 June 2018 (No. 17-17.240) provides a clear answer: when the right to use a unit is attached to another unit (real right), this right is perpetual. In short, it does not expire over time, even if the unit changes owner. But what exactly does this change? Let us delve into the case.

The facts: a story that happens every day

Mr X, owner of a unit in Draguignan, had bought his apartment without knowing that the neighbouring unit, owned by Mrs Y, benefited from a special right of enjoyment over his cellar. This right, set out in the co-ownership regulation, allowed Mrs Y to use the cellar to store wine. When Mr X wanted to sell his unit, the potential buyer discovered this easement (real right) and withdrew. Furious, Mr X sued Mrs Y to have this right annulled, arguing that it had become extinct (expired due to non-use). The Court of Appeal of Aix-en-Provence ruled in his favour, considering that the right had not been used for more than 30 years and was therefore prescribed. But Mrs Y appealed to the Supreme Court. The Supreme Court quashed the appeal judgment, ruling that this real right attached to a co-ownership unit is perpetual: it cannot be extinguished by non-use. The judges recalled that this right is an accessory (inseparable element) of the benefiting unit, and that it follows the unit upon sale. In other words, even if Mrs Y had never used the cellar, her right remained.

The reasoning of the court — analysed

The Supreme Court relied on Articles 544 (right of ownership) and 686 (easements) of the Civil Code. It recalled that a real right attached to a co-ownership unit, conferring a special right of enjoyment over another unit, is perpetual by nature. Indeed, unlike a mere personal obligation (a contract between two persons), a real right is a right over a thing, which follows the thing. The court held that non-use cannot extinguish this right, because it is a real right in immovable property, and not a right of way or view which, in contrast, can be extinguished by thirty years' non-use (Article 706 of the Civil Code). What few people know is that the distinction is subtle: if the right is attached to a unit (real right), it is perpetual; if it is attached to a person (personal right), it can be temporary. In this case, the right was registered in favour of Mrs Y's unit, and not in her personal name. Therefore, it survives transfers. The decision is a confirmation of previous case law (Civ. 3e, 15 March 2006, No. 04-20.862), but it clarifies the regime applicable to real rights in co-ownership. However, be careful: if the co-ownership regulation provides for a limited duration, the solution would be different.

What this means for you — in practice

For landlord owners: If your unit benefits from a special right of enjoyment (terrace, cellar, parking) over another unit, this right is definitive. You can pass it on to your tenants. Example: in Bandol, you rent an apartment with a right of way over the private beach of the neighbouring unit. This right benefits your tenant, even if the owner of the neighbouring unit changes. For buyers: Before buying, check the co-ownership regulation. If a real right burdens your unit, you will have to bear it, even if it is not mentioned in your deed of sale. In practice, I have come across cases where the buyer only discovered the easement after signing, and could neither cancel it nor obtain a price reduction. For co-owners: If you believe that a real right is no longer used, you cannot request its removal simply by the passage of time. A unanimous decision of the general meeting or a modification of the co-ownership regulation is required. In figures: a dispute of this type can cost between €3,000 and €10,000 in legal fees. Prevention is better than cure.

Four tips to avoid this type of dispute

• Always consult the co-ownership regulation before buying. Do not rely solely on the deed of sale: the co-ownership regulation may contain real rights not mentioned elsewhere. Ask your notary to verify the active and passive easements.
• Notify real rights to your insurer. If a special right of enjoyment exists over your unit, inform your home insurance. In the event of damage caused by the exercise of this right (e.g. water damage), your liability may be engaged.
• If in doubt about the existence of a right, ask the managing agent. The managing agent must hold the up-to-date co-ownership regulation. You can request a certified copy. If the managing agent refuses, apply to the judicial court.
• Do not rely on non-use to make a real right disappear. As the Supreme Court recalled, this right is perpetual. The only way to extinguish it is a modification of the co-ownership regulation adopted unanimously or a court decision declaring it void due to the disappearance of the usefulness of the right.

Further exploration: related case law and developments

This decision follows a consistent line: the Supreme Court protects the stability of real rights in co-ownership. Already in 2006 (Civ. 3e, 15 March 2006, No. 04-20.862), it had ruled that an exclusive right of enjoyment over a common part was a perpetual real right. In 2012, it specified that this right cannot be removed without the consent of the beneficiary (Civ. 3e, 27 June 2012, No. 11-18.391). The trend is therefore clear: once a real right is constituted, it is almost irreversible. This means for the future that drafters of deeds must be extremely cautious: a poorly drafted real right can create a perpetual burden. Conversely, for owners, it is a security: acquired rights are protected. How to react if you inherit a unit burdened with a real right? Accept it, or negotiate financial compensation with the beneficiary to renounce it. But be careful: a renunciation must be made by notarial deed and published in the land registry.

Key points to remember

FAQ:

• Can a special right of enjoyment be extinguished by non-use? No, if it is a real right attached to a unit. It is perpetual.
• Must I mention this right in my deed of sale? Yes, the seller must inform the buyer of any easement or real right. Failing this, the buyer may claim a price reduction or damages.
• Can I remove a real right by a decision of the general meeting? No, because this would modify the rights of the co-owners. A unanimous decision is necessary.
• What is the time limit to challenge a real right? There is no limitation period for perpetual real rights. You can act at any time, but be careful: if you have allowed the beneficiary to use your unit for 30 years without protest, you could lose your right to challenge through acquisitive prescription.
• What to do if I discover a real right after the purchase? Consult a specialised lawyer. You can bring a warranty action against the seller for failure to inform, or negotiate compensation with the beneficiary.

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