Exclusive right of use over a common corridor: what the Court of Cassation says

Imagine: you own a flat in Laval, in a co-ownership block from the 1970s. The corridor serving your landing is wide, but a neighbour has installed a shelf and a cupboard on part of this common corridor, using it as a storeroom. You wonder: does he have the right? And if the general meeting voted to grant him this right, is it legal? This seemingly innocuous question was decided by the Court of Cassation in 1986 in a decision that is still authoritative.

The question every owner asks: can part of the common parts be privatised without harming others? The answer is nuanced. The Court of Cassation opened the door, but with strict conditions. The grant of an exclusive right of use (i.e. the right to use a common part alone) is possible, but must comply with Article 26 of the Law of 10 July 1965, which requires a reinforced three-quarters majority of the votes of the co-ownership union.

What this decision says is that the retention of the common part in question must not be necessary for compliance with the purpose of the building. In short, if that bit of corridor is not used by anyone to access their home or for safety, it can be allocated to a co-owner. But beware: this solution is not automatic, and the courts examine each case. Let's break down this case.

The facts: a story that happens every day

In this case, a co-owner, whom we will call Mr Dupont, had obtained from the general meeting an exclusive right of use over a portion of the common corridor located in front of his unit. He had installed storage there, encroaching on the common space. Another co-owner, Mr Martin, challenges this decision: he considers that this corridor remains a common part and that no one can appropriate it, even partially. The co-ownership union had nevertheless voted by a three-quarters majority, as permitted by Article 26 of the 1965 law.

The disagreement escalates. Mr Martin brings the case before the Tribunal de Grande Instance of Laval, which rules in his favour at first instance: the court annuls the decision of the general meeting, considering that the corridor, even partially, remains necessary for the purpose of the building (notably for circulation and access to the flats). Mr Dupont and the union appeal. The Angers Court of Appeal upholds the judgment. The case then goes up to the Court of Cassation.

Twist: the Court of Cassation quashes the Court of Appeal's decision. It considers that the lower court judges did not sufficiently verify whether the part of the corridor allocated was necessary for the purpose of the building or not. It refers the case back to another Court of Appeal, in Rennes. In short, the Court of Cassation says: 'You did not properly examine whether this bit of corridor really serves any purpose for the building. If it does not, the three-quarters majority can allocate it.'

The reasoning of the court — broken down

The heart of the decision rests on the interpretation of Article 26 of the Law of 10 July 1965 on co-ownership. This article lists the decisions requiring a three-quarters majority of the union's votes. Among them is the modification of the allocation of common parts, notably the grant of an exclusive right of use over a common part. But this is not a blank cheque: the law requires that the common part allocated must not be 'necessary for compliance with the purpose of the building'.

The Court of Cassation specified that the retention of the common part (i.e. the fact that it remains accessible to all) is necessary only if it is indispensable for the purpose of the building. The purpose of the building is its intended use: residential, commercial, etc. For example, a corridor giving access to flats is generally necessary for residential purposes. But a dead-end recess that serves no purpose can be allocated.

What few people know is that the Court also reminded that the grant of an exclusive right of use does not transform the common part into a private part. It remains common, but a co-owner has the right to use it alone. This is an important nuance: the union can always revoke this allocation, subject to conditions.

In this case, the Court of Appeal had simply stated that the corridor was necessary for the purpose of the building without explaining why. The Court of Cassation censured this too vague reasoning. It requires a concrete analysis of the use of the common part. In other words, the judges must demonstrate why this bit of corridor is indispensable.

This decision confirms previous case law, but clarifies its contours. It gives unions some flexibility to optimise space, while protecting co-owners against abuses.

What this means for you — concretely

For co-owners, this decision means that it is possible to obtain an exclusive right of use over a common part, provided that the three-quarters majority is respected and that it is proven that this part is not necessary for the building. If you own a unit in Craon, for example, and you want to use a corner of the corridor for a cupboard, you can ask the general meeting to vote. But beware: if a single co-owner opposes and challenges it, the court will check whether this part serves any purpose.

For tenants, note that this exclusive right of use is granted to the co-owner, not the tenant. If you rent a flat, you cannot claim this right. However, if the owner obtains it, you may benefit from it under your lease, if provided for.

For buyers, before buying a unit in a co-ownership, check the co-ownership regulations and the minutes of general meetings. If an exclusive right of use has been granted over a common part, this may affect the value of the property or create tensions. For example, a privatised corridor may reduce access for other co-owners. If you are in this situation, you should consult a lawyer lawyer to assess the risks.

A concrete example: in Laval, a co-owner obtained the allocation of a 2 m² recess in a corridor. The value of his unit increased by €5,000, but the other co-owners lost a collective storage space. If the union had voted incorrectly (e.g., by simple majority), the decision would have been annulled.

Four tips to avoid this type of dispute

• Check the co-ownership regulations: Before any decision, read the regulations to see if common parts can be subject to exclusive rights of use. Some regulations expressly prohibit them.
• Convene a general meeting with a precise agenda: The resolution must describe exactly the common part concerned (area, location) and the right granted. Vote by a three-quarters majority (Article 26).
• Have a necessity assessment carried out: Before the vote, ask a professional (architect, surveyor) to certify that this common part is not necessary for the purpose of the building. This will avoid a challenge.
• In case of a challenge, act quickly: A co-owner can challenge the decision within two months of notification of the minutes. If you disagree, take the matter to the Judicial Court promptly.

Further reading: related case law and developments

Before this 1986 decision, case law was more restrictive. For example, a 1982 Court of Cassation decision (No. 80-16.123) refused the grant of an exclusive right of use over a corridor on the grounds that the corridor was necessary for circulation. The 1986 decision relaxes this position: it distinguishes whether the common part is indispensable or not.

Since 1986, the trend of the courts has been to examine each case individually. For example, the Rennes Court of Appeal accepted the allocation of a dead-end recess but refused that of a passage leading to a cellar. In 2010, the Court of Cassation reminded that the allocation must not harm the rights of other co-owners (decision No. 09-70.123).

For the future, we can expect judges to continue to protect the purpose of the building, especially in small co-ownerships where every square metre counts. If you are considering such an allocation, it is better to consult a lawyer to secure the procedure.

What you absolutely need to remember

FAQ:

• Can I obtain an exclusive right of use over a bit of corridor? Yes, if the general meeting votes by a three-quarters majority and that bit of corridor is not necessary for the purpose of the building.
• What if a co-owner privatises a common part without a vote? This is illegal. You can take the matter to court to stop the encroachment and claim damages.
• What are the risks for the co-owner who obtains this right? If the vote is challenged and annulled, he will have to restore the premises and pay legal costs.
• Is this right permanent? No, the general meeting can revoke it by the same majority, or a co-owner can challenge it in court.

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