Subdivision Hedges: When a Majority of Co-Owners Can Modify the Rules

Imagine you own a house in Capbreton, in a subdivision where all hedges must respect a maximum height of 1.80 metres according to the deed of conditions. You wish to plant a taller hedge for more privacy, but your neighbours object. Who is right? Can this rule be modified? And if so, how?

I hear these questions regularly in my practice, whether in Mont-de-Marsan or on the Côte d'Azur. Subdivisions, with their sometimes strict rules, are a source of numerous conflicts between neighbours. Hedge height, shutter colour, type of fencing... all topics that can escalate into lengthy and costly legal proceedings.

A decision by the Court of Cassation on 12 July 2018 provides essential clarifications on this precise point. It distinguishes between regulatory clauses (which require administrative approval) and non-regulatory clauses (which can be modified by the owners themselves). But what exactly does this change for you, as an owner, tenant, or real estate professional?

The Facts: A Story as Common as Any

Mr. and Mrs. Martin (names changed to respect confidentiality) own a house with a garden in a subdivision in Biscarrosse. The deed of conditions (the document setting out the rules for living in the subdivision) provides that hedges must not exceed 1.50 metres in height. The Martins wish to plant a 2-metre hedge to protect themselves from view, arguing that this does not affect the safety or aesthetics of the neighbourhood.

They first consult their immediate neighbours, who give their agreement. But when they present their project to the owners' meeting of the subdivision, a majority opposes it. Some believe it would set a precedent, others fear for their garden's sunlight. The Martins decide nonetheless to plant their hedge, considering the rule too restrictive.

The subdivision association (the owners' association) then sues them to enforce the deed of conditions. At first instance, the court rules in favour of the association: the hedge must be reduced to 1.50 metres. The Martins appeal, but the court of appeal confirms this judgment. They then appeal to the Court of Cassation, arguing that the clause on hedge height should have been approved by the administrative authority to be valid.

Their argument? According to them, this clause has a regulatory nature (it imposes planning rules) and must therefore be validated by the town hall. Without this approval, it would not be enforceable. But will the Court of Cassation rule in their favour? This is the very question decided by this ruling.

The Court's Reasoning — Analysed

The Court of Cassation dismisses the Martins' appeal and upholds the court of appeal's decision. Its reasoning rests on two essential distinctions that I often see misunderstood by my clients.

Firstly, the judges distinguish between regulatory clauses and non-regulatory clauses in a deed of conditions. A regulatory clause is a provision that has a planning character (it concerns the occupation or use of land) and must be approved by the competent administrative authority (generally the town hall). Conversely, a non-regulatory clause falls under private organisation between owners and does not need this approval.

Here, the Court considers that the clause on hedge height does not have a regulatory nature. Why? Because it does not directly concern planning in the strict sense, but rather aesthetics and communal living in the subdivision. In other words, it is not a planning rule imposed by the community, but a private rule agreed between owners.

Secondly, the Court bases its decision on Article L. 315-3 of the French Planning Code (reproduced in Article L. 442-10). This article provides that modifications to a subdivision's deed of conditions can be adopted by a majority of owners, unless they concern regulatory clauses. Since the clause on hedges is not regulatory, its modification can therefore be decided by a majority of owners, without needing the town hall's approval.

undefined, I have encountered cases where owners confused these two types of clauses. Some thought that every rule in a deed of conditions had to be approved by the town hall, others believed they could freely modify any clause. This decision clarifies matters: one must first determine the nature of the clause before knowing how to modify it.

The Court also rejects the Martins' argument that the court of appeal violated Article L. 422-10 of the French Planning Code. It considers that the court of appeal correctly applied the law by distinguishing regulatory clauses from others. This is therefore not a reversal of case law, but rather a confirmation and clarification of the courts' position on this issue.

What This Changes for You — Concretely

If you are an owner in a subdivision, this decision has important implications. Firstly, it gives you more flexibility to modify certain rules. For example, if you wish to change shutter colour or type of fencing, and these points are not covered by municipal planning rules, you can propose a modification at a general meeting.

Be careful, however: this flexibility has its limits. To modify a non-regulatory clause, you must obtain a majority of the owners' votes (according to the rules set by the deed of conditions or the law). In the case of the Martins in Biscarrosse, they failed to convince this majority, so the initial clause still applies. If you are in this situation, you must first consult your neighbours and prepare your arguments before the general meeting.

For tenants, the situation is different. As a tenant, you must respect the subdivision's deed of conditions, even if you are not an owner. If your landlord authorises you to plant a hedge, but the deed of conditions prohibits it, you risk conflicts with the subdivision association. In this case, always check the rules before undertaking works, even minor ones.

Real estate professionals (agents, notaries, developers) must also take this decision into account. When selling a property in a subdivision, it is crucial to inform the purchaser of the rules in force and their nature. What few people know is that some clauses can be modified relatively easily, while others are more rigid. A purchaser wishing to personalise their property will appreciate this information.

Concretely, if you wish to modify a non-regulatory clause, here are the steps: 1) Verify the nature of the clause (regulatory or not), 2) Consult the internal regulations to know the voting procedures, 3) Present your project at a general meeting, 4) If a majority is obtained, formalise the modification with minutes. Timelines vary, but allow at least 2 to 3 months between idea and implementation. Costs are generally limited to meeting convening and holding fees (often a few tens of euros per owner).

Four Tips to Avoid This Type of Dispute

• Read the deed of conditions carefully before buying: Do not just glance at it. Identify clauses that might bother you (hedge height, façade colour, type of vegetation allowed). Ask questions to the seller or the managing agent.
• Distinguish regulatory clauses from others: Ask the managing agent or a professional (lawyer, notary) which clauses require administrative approval and which can be modified by owners. This distinction is crucial to know which rules are negotiable.
• Prioritise dialogue before conflict: If you wish to modify a rule, first discuss it with your close neighbours. Explain your project, listen to their objections, seek compromises. A hedge at 1.80 metres instead of 1.50 metres can sometimes be accepted if well-maintained.
• Document your steps: If you obtain a verbal agreement, have it confirmed in writing. If you vote on a modification at a general meeting, keep the minutes. In case of dispute, these documents will be essential to prove your good faith and compliance with procedures.

Further Insight: Related Case Law and Developments

This decision fits into consistent case law from the courts on the distinction between regulatory and non-regulatory clauses. For example, in a Court of Cassation ruling of 15 March 2017 (No. 16-10.305), the judges had already considered that a clause prohibiting fences in a subdivision did not have a regulatory nature and could be modified by owners.

In contrast, for regulatory clauses (such as those setting distances from boundaries or building heights), case law is stricter. They must be approved by the administrative authority and their modification follows specific rules. For example, in a ruling of 5 July 2016 (No. 15-20.789), the Court recalled that a non-approved regulatory clause was not enforceable against owners.

The trend in the courts is therefore to give more autonomy to owners to manage non-regulatory aspects of their subdivision, while maintaining strict control over planning aspects. This means that, in the future, one can expect to see more modifications to deeds of conditions on points like aesthetics or comfort, but fundamental planning rules will remain stable.

For owners, this is good news: you have more latitude to adapt rules to your needs, provided you respect the procedure and obtain majority agreement. For managing agents and professionals, this implies properly informing owners of their rights and obligations, to avoid disputes.

What You Must Absolutely Remember

• Non-regulatory clause: Rule not related to planning (e.g., hedge height, shutter colour). Can be modified by a majority of owners, without administrative approval.
• Regulatory clause: Rule related to planning (e.g., building distances, building heights). Must be approved by the town hall, modification more complex.
• Modification procedure: For a non-regulatory clause, vote at a general meeting by majority. Keep the minutes.
• Consequences of non-compliance: If you do not comply with a valid clause, the association can sue you to cease the violation, with possible damages.
• Verification before purchase: Read the deed of conditions, identify restrictive clauses, ask if they are regulatory or not.

Do you find yourself 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 →