Co-ownership and Co-ownership Charges: Who Bears the Costs of Private Occupation?

Imagine: you own a flat in co-ownership with your brother in Sanary-sur-Mer. He alone lives in the property, benefits from the communal heating, hot water, and routine maintenance. Yet, when winding up the co-ownership, the notary places all the co-ownership charges on the common liabilities. Is that fair? The question every co-owner asks: should the costs related to personal occupation be borne solely by the occupant or by all co-owners?

This decision of the Court of Cassation of 12 December 2007 (No. 06-11.877) provides a clear answer: co-ownership charges relating to the private and personal occupation of an indivisible immovable property, notably routine maintenance, water, and communal heating, are borne by the occupant. Only the other co-ownership charges (major works, insurance, etc.) should appear on the liabilities side of the co-ownership account. In other words, the person who enjoys the property alone must pay its current costs.

In short, this case law protects non-occupying co-owners against an inequitable distribution of charges. But beware, it is not all so simple: the nature of each charge still needs to be determined. Let us dissect this decision and its practical implications for you, owners, tenants or property professionals in Draguignan, Toulon or elsewhere.

The Facts: A Story Like Many Others

Mr X and Ms Z were co-owners of a building located in Sanary-sur-Mer, in the Var department. Ms Z privately occupied one of the units of the co-ownership, benefiting alone from the private parts and the communal services (water, heating). The co-ownership had lasted for several years, and each year the co-ownership charges were paid and then apportioned among the co-owners.

The dispute arose during the liquidation of the co-ownership. Mr X argued that the charges for routine maintenance, water, and communal heating should be borne solely by Ms Z, since she had been the sole beneficiary. Ms Z, on the other hand, contended that all co-ownership charges should be placed on the liabilities of the co-ownership, and therefore shared between the two of them.

The case was brought before the Tribunal de Grande Instance of Toulon, then before the Court of Appeal of Aix-en-Provence. The lower courts ruled in favour of Mr X: they considered that the costs relating to private occupation were to be borne by the occupant. Ms Z appealed to the Court of Cassation.

The Court of Cassation, in its judgment of 12 December 2007, dismissed the appeal. It confirmed that co-ownership charges relating to private and personal occupation (routine maintenance, water, heating) are borne by the occupant, and that only the other charges should appear on the liabilities of the co-ownership. In so doing, it specified the allocation of charges in the context of a co-ownership, relying on the principle of fairness and the absence of fault on the part of non-occupying co-owners.

The Reasoning of the Court — Dissected

To understand the decision, one must refer back to the law on co-ownership (Articles 815 et seq. of the French Civil Code). Article 815-9 provides that each co-owner may use the undivided property in accordance with its purpose, but must bear the costs of such use. The Court of Cassation here applies this principle to co-ownership charges: the person who privately enjoys an undivided property must pay the variable costs related to personal use.

The judges distinguish two categories of charges: on the one hand, the so-called 'recoverable' charges from the occupant (routine maintenance, water, communal heating, electricity for common parts if individualised); on the other hand, the 'non-recoverable' charges concerning the preservation and administration of the building (major works, insurance, management fees, etc.). Only these latter charges should be borne by the co-ownership.

But what does this actually change? undefined that if you are a non-occupying co-owner, you will not have to pay your brother's or sister's share of the current charges for the property they occupy. Conversely, if you are the occupant, you will have to bear these costs alone.

The Court also relies on Article 1240 of the Civil Code (liability for fault): it would be inequitable for a co-owner to bear costs from which they have not benefited. This reasoning has been consistent since several earlier decisions (Civ. 1re, 1999, etc.). It is therefore not a reversal, but a welcome confirmation and clarification.

Beware, however: the decision does not say that all charges are automatically apportioned. It requires a case-by-case analysis of the nature of the charges. What few people know is that the co-ownership regulations and decisions of the general meeting can also influence the classification.

What This Changes for You — Practically

If you own a property in co-ownership and one of the co-owners occupies it, this case law is a tool to avoid paying on their behalf. For example, in Draguignan, a 70 m² flat in a co-ownership generates about €1,200 in annual charges, of which €600 for water and heating. If the occupant is your cousin, you will only have to bear the €600 of common charges (insurance, maintenance of common parts), and not the €600 of charges related to his consumption.

For a tenant of a co-owned property, the situation is different: the tenant pays his rental charges directly, but the landlord co-owner must pass on the share of recoverable co-ownership charges. The decision therefore applies upstream in the relations between co-owners.

For a buyer of a co-owned property, this is a key element to check before purchasing. If the seller occupied the property alone, they should have borne the current charges. Check the co-ownership accounts to avoid having to pay retroactively for charges that the occupant should have settled.

In practice, if you are in this situation, you must: 1) identify in the management company's calls for funds the recoverable charges (heating, water, routine maintenance); 2) ask the occupant to reimburse these sums; 3) in case of refusal, apply to the Tribunal Judiciaire of Toulon to have the co-ownership account established. Timeframes vary, but an interim procedure can be completed in a few months.

Four Tips to Avoid This Type of Dispute

• Draft a co-ownership agreement: at the start of the co-ownership, sign a written agreement specifying the allocation of co-ownership charges. This avoids any subsequent dispute. Example: 'The occupying co-owner bears alone the costs of water, heating and routine maintenance.'
• Keep all supporting documents: retain the calls for funds, water and heating bills, and minutes of general meetings. These documents allow proof of the nature of the charges in the event of a dispute.
• Establish an annual co-ownership account: each year, take stock of the charges paid by the co-ownership and those borne by the occupant. A simple shared spreadsheet (Excel) is enough to avoid nasty surprises.
• Consult a lawyer lawyer: if the disagreement persists, a 30-minute consultation with Maître Zakine (€45) can clarify your rights and start the right steps. undefined, I have seen cases where a simple letter from a lawyer was enough to resolve the situation without proceedings.

Further Reading: Related Case Law and Developments

This decision is part of a consistent line of the Court of Cassation. Already in 1999 (Civ. 1re, 9 February 1999), the Court had ruled that water and heating charges were borne by the occupant. More recently, the judgment of 24 October 2018 (No. 17-21.034) extended this reasoning to co-ownership charges related to private use (e.g., electricity of private parts). Conversely, a 2015 decision (Civ. 3e, 11 June 2015) recalled that major works charges (roof, repointing) remain the responsibility of the co-ownership.

The trend of the courts is therefore to clearly distinguish between occupation charges (personal) and conservation charges (collective). What this means for the future: occupying co-owners should expect to bear an increasing share of charges, particularly due to rising energy costs. It is therefore more necessary than ever to contractually regulate the allocation.

Frequently Asked Questions

• Can I refuse to pay co-ownership charges if I am a non-occupying co-owner? You cannot refuse to pay the management company, because the charges are owed by the co-ownership. However, you can demand reimbursement from the occupant for their personal share, and if necessary, have an account established in court.
• What if the occupant does not reimburse the charges? Send them a formal notice by registered letter. If unsuccessful, apply to the Tribunal Judiciaire of Toulon (or your location) to obtain a judgment for payment. Statutory interest runs from the date of the formal notice.
• How to prove that the charges are related to private occupation? The co-ownership regulations and the management company's calls for funds often mention the nature of the charges. For water and heating, individual bills or meter readings divide the consumption.
• Does this rule also apply to co-ownerships without co-ownership? Yes, the same principle applies between co-owners: the person who privately occupies a common part (e.g., garden) must bear the maintenance costs, unless the regulations provide otherwise.
• Can I include a clause in the deed of sale to avoid this dispute? Yes, when selling a co-owned property, you can provide in the deed that the occupant will reimburse the current charges up to the date of sale. This is a common practice to avoid disputes.

Are you 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 →