Incorporation of Condominium Lots: Mandatory Modification of the Regulations and Descriptive Statement

Imagine: you have just purchased a flat in Cannes, in a condominium from the 1970s. The neighbouring lot, a small studio, has been unoccupied for years. You propose to its owner to buy it to enlarge your living room. An agreement is reached, the funds are paid, you knock down the partition. Everything seems perfect. But a few months later, the managing agent writes to you: this merger of lots was never formalised. You must regularise everything, on pain of litigation with the other co-owners. How can such a simple operation become a legal headache?

The answer lies in a judgment of the French Court of Cassation of 6 February 2002 (No. 00-17.781). This decision, often unknown to the general public, lays down a golden rule: the incorporation of a condominium lot into another cannot be done without amending the condominium regulations and the descriptive statement of division (EDD). In short, walls are not enough: the law must follow.

In this article, I will tell you the story behind this decision, explain its reasoning and, above all, give you practical keys to avoid finding yourself in the same situation. Whether you are a landlord, purchaser or co-owner, these rules directly concern you.

The facts: a story that happens every day

Mr X and Mrs Y were owners of two lots in a building subject to the condominium regime (Law of 10 July 1965). The first lot was a flat, the second a commercial premises. One day, they decide to merge these two lots into one: they knock down the partition, reorganise the space and turn it into a large dwelling. They then sell the whole to Mr Z. Everything seems regular.

But a few years later, a dispute breaks out. Another co-owner, Mr A, challenges this merger. He considers that the incorporation of the lots did not comply with condominium rules. The case is brought before the Tribunal de Grande Instance of Grasse, then before the Cour d'Appel of Aix-en-Provence. The judges rule in favour of Mr A: the merger is void because it was not accompanied by an amendment to the condominium regulations and the descriptive statement of division.

Mr Z, the purchaser, appeals to the Court of Cassation. He argues that the works were perfectly legal and that the condominium regulations did not prohibit this type of fitting out. But the Court of Cassation dismisses his appeal by a judgment of 6 February 2002. It confirms that the incorporation of one lot into another requires the amendment of the condominium regulations and the descriptive statement of division, regardless of whether the works have been carried out or not.

This case illustrates a classic trap: one thinks that it is enough to buy the neighbouring lot and carry out works, but condominium law imposes additional formalities. In Le Cannet, I saw a similar case where an owner merged two lots without telling the managing agent. Result: a legal action by the condominium owners' association to restore the original lots, with legal fees of €5,000 and a year of proceedings.

The reasoning of the court — dissected

The Court of Cassation relies on the condominium regime, in particular Article 71 of the Decree of 14 October 1967 (now codified in Article 8-1 of the Law of 1965). This text requires that any modification of the distribution of lots or their composition be recorded by an amending deed of the condominium regulations and the descriptive statement of division. Why? Because the condominium regulations are the charter of the building: they define the rights and obligations of each co-owner, and in particular the shares (quotas of common parts) attached to each lot. If two lots are merged, the shares must be recalculated and redistributed.

The judges here recalled a fundamental principle: the amendment of the condominium regulations and the descriptive statement of division is a condition for the validity of the incorporation, and not a mere formality. In other words, as long as these documents are not updated, the incorporation does not exist legally. The Court rejects Mr Z's argument that the works alone were sufficient to characterise the merger. It specifies: 'it is irrelevant that the fitting-out works were not followed by an amendment to the condominium regulations'. In doing so, it confirms constant case law: form prevails over substance.

Note, however, that this decision does not create a change in case law. It is part of a line of judgments that protect the legal security of condominiums. What few people know is that the absence of amendment exposes one to an action for nullity of the sale or for restoration of the original lots. undefined, I have come across cases where the purchaser of a merged lot ended up with an 'irregular' property that he could neither resell nor mortgage easily.

What this changes for you — concretely

If you are a landlord in Nice or Cannes, this decision concerns you as soon as you consider merging two lots. For example, you own a 50 m² flat and a 20 m² studio in the same building. You want to rent them together as a large 70 m² dwelling. Without amending the condominium regulations and the descriptive statement of division, this operation is legally risky. In the event of a check, the managing agent could require a return to the original state, and your tenants could find themselves without a title (void lease).

For a purchaser, vigilance is required. Before buying a lot that appears to be the result of a merger, ask to see the up-to-date condominium regulations and descriptive statement of division. If the original lots still appear separately, be wary: the merger may not have been regularised. In Le Cannet, a couple bought an 'enlarged' flat without checking these documents. Six months later, the managing agent required the reinstatement of the partitions, costing €15,000 in works.

For co-owners, this decision is a protection: it prevents a neighbour from unilaterally modifying the distribution of lots without the approval of the general meeting (AG). Indeed, the amendment of the condominium regulations requires a decision of the AG taken by the majority of Article 26 (majority of votes of all co-owners). Without this resolution, the incorporation is void.

In summary: if you are in this situation, you must absolutely consult a lawyer specialised in property law to check whether the formalities have been completed. The limitation periods are short: the action for nullity is time-barred after 10 years from the merger (Article 42 of the Law of 1965).

Four tips to avoid this type of litigation

• Before any merger of lots, consult the condominium regulations: check whether they prohibit or subject the merger of lots to conditions. Some old regulations contain restrictive clauses.
• Have an amendment to the condominium regulations voted at a general meeting: you must obtain a majority under Article 26 (majority of votes of all co-owners). Prepare a draft amendment with a surveyor to recalculate the shares.
• Have a new descriptive statement of division drawn up by a notary: this document must be published with the Land Registry (formerly the mortgage registry). Without this publication, the amendment is unenforceable against third parties.
• Keep a record of all authorisations: keep the minutes of the AG, the amending deed and the publication. In the event of a resale, these documents will be required by the notary.

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Further reading: related case law and developments

The Court of Cassation reaffirmed this principle in several subsequent judgments. For example, in a judgment of 12 May 2004 (No. 02-18.784), it held that the amendment of the descriptive statement of division is necessary even in the absence of modification of the common parts. Similarly, the Cour d'Appel of Aix-en-Provence, in a judgment of 23 January 2020, annulled a merger of lots carried out without amendment of the condominium regulations, ordering the restoration of the original lots at the expense of the defaulting co-owner.

There is a trend for courts to become increasingly strict: they require not only the amendment of the documents, but also that this amendment be published. Failing that, the merger is considered non-existent. For the future, it is likely that judges will continue to protect the legal security of condominiums, to the detriment of unauthorised fitting outs.

What this means: do not rely on the tolerance of the managing agent or on the absence of reaction from neighbours. The risk of legal action is real, especially if a co-owner considers that his rights are prejudiced (for example, if the merger modifies his shares of charges).

In practice: what to do

FAQ:

Q: Can I merge two lots without the approval of the general meeting?
A: No, because the amendment of the condominium regulations requires a decision of the AG by the majority of Article 26. If you proceed without, the merger is void and can be challenged for 10 years.

Q: What if I have already merged lots without formalities?
A: You must regularise as soon as possible. Convene an AG, have the amendment voted, then have a new descriptive statement of division drawn up by a notary. Note: if the 10-year period has expired, regularisation may be more complex.

Q: What are the costs of regularisation?
A: Expect between €2,000 and €5,000 for the fees of the surveyor, notary and lawyer, depending on complexity. Without regularisation, the risk is legal action that could cost €10,000 or more.

Q: Can I sell a merged lot without amendment?
A: Yes, but with a risk. The notary will generally require up-to-date documents. If the merger is not regularised, the sale may be delayed or annulled.

Q: What if my neighbour merges lots without authorisation?
A: You can contact the managing agent, who must convene an AG to regularise or take legal action. You can also act individually to have the nullity of the merger declared and claim damages if you suffer harm (for example, an increase in your charges).

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