Expropriation: a Co-Owner May Always Lodge an Appeal in Cassation

Imagine the scene: in Prades, in the Pyrénées-Orientales, the X family has owned a plot of land for three generations, the fruit of an inheritance. But then the municipality decides to expropriate part of the land for a development project. The problem? The property is held in co-ownership between several brothers and sisters. One of them, unhappy, wants to challenge the expropriation order. But the others agree with the project. Can he act alone? The question that every co-owner asks themselves is: "Is my right of ownership diluted in the co-ownership, or can I defend my share?"

This decision of the Court of Cassation of 8 October 1975 (No. 74-70.322) clearly answers: the indivisible nature of the expropriated property cannot deprive one of the co-owners, or some of them, of the right to lodge an appeal in cassation against the expropriation order, which they have an interest in having annulled. In other words, each co-owner retains an individual right to take legal action, independently of the others. This is an essential protection for co-owners.

In short, if you own a plot of land in co-ownership and the expropriation seems irregular to you, you can challenge it alone before the Court of Cassation, without the agreement of all the other co-owners. This decision, although dating from 1975, remains relevant and protects individual rights within co-ownership.

The facts: a story that happens every day

Let us return to the case. An owner, whom I will call Mr. Y, was a co-owner of a property located in the Perpignan area. The expropriation procedure had been initiated by the public authority, and an expropriation order had been made. Mr. Y considered that the procedure was tainted by irregularities: in particular, the individual notification of the deposit at the town hall of the plot inquiry file had not been made correctly. Indeed, the prefectural decree of 17 December 1973 postponing the closing date of the second plot inquiry had not been individually notified to each co-owner. Mr. Y had received a notification on 25 October 1972 for a plot inquiry that took place from 6 to 27 November 1972, but this notification related to a decree of 15 May 1973 ordering a plot inquiry, and the status of a decree of 10 December 1973 ordering the opening of a second plot inquiry on 20 December 1973. In short, an administrative imbroglio.

Mr. Y decides to lodge an appeal in cassation against the expropriation order. But the question arises: as a mere co-owner, does he have the right to act alone? The public authority argues that since the property is indivisible, acts of disposal require the agreement of all co-owners. But the Court of Cassation does not follow this reasoning. It considers that an appeal in cassation is a preservative act or an act of administration, and not an act of disposal. Each co-owner has a personal interest in having an order that deprives them of their right of ownership, even partially, annulled. Thus, Mr. Y can validly lodge an appeal in cassation without the agreement of his co-owners.

What few people know: this decision was made in a context where the expropriation procedure was particularly complex, with multiple plot inquiries and questionable notifications. But the principle laid down is general: co-ownership does not prevent the individual exercise of remedies.

The reasoning of the court — broken down

The Court of Cassation relies on the general principles of expropriation law and co-ownership law. The implicit legal basis is Article 545 of the Civil Code, which provides that "no one may be compelled to transfer their ownership, except for reasons of public utility and upon payment of just and prior compensation." This fundamental right is individual: each owner, even a co-owner, can demand compliance with this procedure. The Court of Cassation also recalls that an appeal in cassation is an extraordinary remedy open to any person who has an interest, in accordance with Article 605 of the Code of Civil Procedure (old).

The decision specifies that "the indivisible nature of the expropriated property cannot deprive one of the co-owners, or some of them, of the right to lodge an appeal in cassation against the expropriation order, which they have an interest in having annulled." In other words, the interest in bringing proceedings is personal: even if the property is common, the harm suffered by the co-owner is individual. The Court rejects the argument that legal action requires unanimity of the co-owners, because taking legal action to defend one's rights is not an act of disposal within the meaning of Article 815-3 of the Civil Code (which governs the powers of co-owners).

This decision is a confirmation of previous case law: the Court of Cassation had already ruled, in older decisions, that each co-owner may alone exercise preservative or administrative actions. Here, it extends this principle to appeals in cassation in the context of expropriation. There is no reversal, but a useful clarification. The arguments of the public authority (necessity of a mandate or a collective decision) are firmly dismissed.

However, note that this solution only applies to appeals in cassation. For actions before the expropriation judge (fixing of compensation, for example), the rules of co-ownership apply differently. But the Court of Cassation intended to preserve a fundamental right: that of challenging the very regularity of the expropriation, which is a prerequisite for any compensation.

What this changes for you — concretely

If you are the owner of a property in co-ownership (following an inheritance, a joint purchase, etc.) and you are faced with an expropriation procedure, this decision gives you the right to act alone. You do not need to obtain the agreement of your co-owners to lodge an appeal in cassation against the expropriation order. This is a powerful tool, especially if the other co-owners are passive or favourable to the project.

Let us take a concrete example: in Canet-en-Roussillon, a plot of land co-owned by three sisters is subject to expropriation for the construction of a greenway. Two sisters agree, but the third considers that the public inquiry was botched. Thanks to this case law, she can alone challenge the order before the Court of Cassation, even if her sisters do not support her. However, note that an appeal in cassation is an exceptional remedy, subject to strict conditions (15-day time limit from notification of the order, precise grounds, etc.). It should not be confused with the appeal before the administrative court against the order of transferability or the declaration of public utility.

If you are a tenant or usufructuary, this decision does not directly concern you, as you are not the owner. But if you are a bare owner (you have ownership without the use), you are considered an owner and benefit from this protection. For co-owners in forced co-ownership (as in a condominium), the principle is similar: can each co-owner act individually to challenge an expropriation affecting the common parts? No, be careful: condominium is governed by specific rules (law of 1965). However, for a simple co-ownership, this is indeed the case.

undefined, I have come across cases where co-owners were blocked by the inaction of others. This case law allowed them to unblock the situation. But you must act quickly: the time limit for lodging an appeal in cassation is only 15 days after notification of the expropriation order. After this period, you lose this right. And if you win, the order is annulled, and the procedure must start again from scratch, which can take years. That is why a quick consultation with a lawyer lawyer is essential.

Four tips to avoid this type of dispute

• Check individual notifications: As soon as you receive a notice of a plot inquiry or a prefectural decree, ensure that each co-owner has been individually notified. If not, challenge it immediately.
• Call a meeting of co-owners: Before any procedure, try to convince the other co-owners of the need to act together. A unanimous decision simplifies things. But if you fail, know that you can act alone.
• Keep all documents: Keep all letters, decrees, notifications and proof of filing safe. In the event of a challenge, they are essential to demonstrate an irregularity.
• Consult a lawyer before any appeal: An appeal in cassation is a technical and costly remedy. A preliminary consultation (such as the one I offer) allows you to assess your chances and avoid unnecessary costs.

Further reading: related case law and developments

This 1975 decision is part of a line of protection of individual rights in expropriation matters. We can cite a decision of the Court of Cassation of 14 November 1973 (Bull. civ. III, No. 544) which had already admitted that a co-owner may appeal against the order of transferability. More recently, the Court of Cassation confirmed this approach in a decision of 22 June 2017 (No. 16-19.871) by ruling that the intervention of a co-owner in an expropriation procedure is admissible even without the agreement of the others.

The trend of the courts is therefore constant: co-ownership should not be an obstacle to the defence of individual rights. However, some lower courts (such as courts of appeal) have sometimes tried to limit this faculty by requiring an express mandate from the other co-owners. The Court of Cassation has systematically censured these positions. For the future, it is likely that this case law will continue, as it is in line with the constitutional protection of the right of ownership (Article 17 of the Declaration of the Rights of Man and of the Citizen).

What you absolutely must remember

Here are the essential points in question-and-answer form:

• Can I challenge an expropriation alone if I am a co-owner? Yes, to lodge an appeal in cassation against the expropriation order, you can act alone, without the agreement of the other co-owners.
• What is the time limit to act? The time limit is very short: 15 days from the notification of the expropriation order. After this period, you lose this right.
• What are the costs? An appeal in cassation requires a lawyer admitted to the Conseil d'État and the Cour de Cassation (lawyer lawyer). Fees vary, but expect between €3,000 and €6,000. A preliminary consultation (€45 with Maître Zakine) allows you to assess the opportunity.
• What happens if I win? The expropriation order is annulled. The procedure must start again from the beginning, which can take several years. You gain time and can negotiate better compensation.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of procedure — and often much more. Book an appointment →