Private Right of Enjoyment over Common Parts: The Court of Cassation Reminds the Rules of Transfer between Co-owners

Imagine you live in Bayonne, in a beautiful co-ownership with a view of the Nive. Your downstairs neighbour, who owns a flat with a private terrace, decides one day to transfer you a piece of that terrace to enlarge your balcony. Nice, isn't it? Yet this transfer, even if amicable, may be unlawful without the consent of all co-owners. This is exactly what the Court of Cassation reminded in a judgment of 17 December 2013 (No. 12-23.670).

This decision, often overlooked, is nevertheless crucial for any owner or purchaser in a co-ownership. It sets a simple rule: a right of private enjoyment attached to a unit cannot be transferred, even partially, to the owner of another unit without the consent of the owners' association. In other words, you cannot freely 'give' or 'sell' the exclusive use of a common part to your neighbour.

But what exactly does this change for you, an owner in Orthez or elsewhere? We will dissect this decision, its practical implications, and give you the keys to avoid pitfalls.

The Facts: A Story as Common as They Come

Mr. X is the owner of a unit in a co-ownership located in Bayonne. His unit includes a right of private enjoyment over part of the building's roof terrace. One day, he decides to transfer part of this right to Mr. Y, owner of another unit, so that Mr. Y can set up a relaxation area. The two co-owners sign a private deed without informing the owners' association. For a few months, everything goes well. But the managing agent eventually discovers the manoeuvre and convenes a general meeting. The owners' association then refuses the transfer and sues Mr. X and Mr. Y to have the deed annulled.

The Tribunal de grande instance of Bayonne rules in favour of the owners' association: the transfer is void. Mr. X and Mr. Y appeal, but the Court of Appeal of Pau upholds the judgment. They then appeal to the Court of Cassation, arguing that the right of private enjoyment is an ancillary right attached to the unit, freely transferable. But the Court of Cassation dismisses their appeal. It recalls that the private enjoyment of a common part is a modality of that common part, and its modification requires the consent of all co-owners (or at least of the owners' association voting by the required majority). In short, you cannot change the rules of the game without the consent of the community.

The Reasoning of the Court — Dissected

The legal basis of this decision is Article 1134 of the Civil Code (old), now Articles 1103 and 1104, which sets out the principle of the binding force of contracts. But above all, it relies on the Law of 10 July 1965 relating to co-ownership, and more precisely on its Article 8 which provides that the co-ownership regulations cannot impose any restrictions on the rights of co-owners other than those justified by the purpose of the building. The Court of Cassation deduces that the right of private enjoyment, even if attached to a unit, cannot be transferred to another unit without modifying the co-ownership regulations and the divisional description.

What few people know is that this decision is a confirmation of consistent case law. As early as 1996, the Court of Cassation had ruled that the transfer of a right of private enjoyment between co-owners was subject to the consent of the owners' association (Civ. 3e, 19 June 1996, No. 94-19.684). The 2013 judgment therefore merely recalls this rule, but with reinforced scope: it specifies that even a partial transfer is prohibited without consent.

However, be careful: the decision only concerns common parts. If the right of enjoyment relates to a private part (for example, a garden adjoining a unit), the rules are different. But in our case, it was indeed a roof terrace, a common part by nature.

The arguments of the transferring co-owners were as follows: the right of enjoyment is a real right attached to the unit, so they are free to dispose of it as they see fit. But the Court held that this right is inseparable from the purpose of the common part, and its modification affects the balance of the co-ownership. In other words, you cannot privatise a common part for the benefit of a single co-owner without the community giving its approval.

What This Changes for You — Concretely

If you are the owner of a unit with a right of private enjoyment (terrace, garden, cellar, parking space), you cannot transfer this right to another co-owner without going through a general meeting. In practice, you must obtain a decision of the owners' association, taken by the majority under Article 26 of the 1965 Law (majority of votes of all co-owners). If the transfer is accepted, it must be formalised by a notarial deed and a modification of the co-ownership regulations and the divisional description.

For a purchaser, be vigilant: if you buy a unit to which a right of private enjoyment is attached, make sure that this right is mentioned in the co-ownership regulations. If the seller tells you 'you can use the neighbour's terrace', be wary: this promise could be void.

Let's take a concrete example in Orthez: you are a co-owner of a flat with a right of enjoyment over a common courtyard. Your neighbour offers to transfer half of this courtyard so that he can install a barbecue. You sign a paper. A few months later, the owners' association sues you. You risk annulment of the transfer, damages, and legal costs. Not to mention tensions with other co-owners. Moral: do nothing without the consent of the owners' association.

If you are a tenant, you are not directly concerned, but your lease may mention a right of enjoyment. Check that the landlord had the right to grant it to you. In the event of a dispute, the owners' association could take action against the landlord, but you could be evicted from the common part.

Four Tips to Avoid This Type of Dispute

• Consult the co-ownership regulations before any transfer or acquisition. Identify precisely the rights and obligations attached to each unit. If a right of private enjoyment is promised to you, check that it appears in the divisional description.
• Never sign an agreement between co-owners without the advice of the managing agent. Even if the agreement seems trivial, it can be challenged. Send a written request to the managing agent, who will submit it to the general meeting.
• If you are the owner of a unit with private enjoyment, do not let a neighbour believe they can use it. You could create a de facto situation which, over time, could be interpreted as a tacit transfer. In a dispute, you would be at fault.
• If in doubt, consult a lawyer specialising in property law. A quick consultation can save you months of proceedings. undefined, I have encountered cases where co-owners transferred their right of enjoyment without formalities, and ended up having to compensate the owners' association.

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

Further Analysis: Related Case Law and Developments

The Court of Cassation has had occasion to clarify its position several times. In a judgment of 8 June 2017 (No. 16-16.057), it ruled that the transfer of a right of private enjoyment between co-owners is not void ab initio, but only voidable if not authorised by the owners' association. In other words, if the owners' association does not react, the transfer may be validated by the passage of time (prescription). But be careful: the limitation period is 5 years from the transfer.

Another important decision is that of 4 July 2019 (No. 18-18.503), which specified that the consent of the owners' association must be express and not tacit. Mere silence of the general meeting is not enough. An explicit resolution is required.

The trend of the courts is therefore to protect the collective interest of the co-ownership against unauthorised privatisations. The judges are very meticulous about compliance with formalities. For the future, it can be expected that any transfer of a right of private enjoyment will systematically be reclassified as a modification of the co-ownership regulations, subject to unanimity in certain cases.

In Practice: What to Do

FAQ: Frequent Questions

1. Can I transfer my private parking space to my neighbour? If the space is a private part (unit), yes, you can sell or rent it freely. But if it is a common part with private enjoyment, no, you need the consent of the owners' association.
2. What if I have already transferred a right of enjoyment without consent? You risk an action for annulment. Consult a lawyer quickly. You can regularise by obtaining a decision of the general meeting retrospectively, but this is not guaranteed.
3. What is the cost of regularisation? Count between €1,500 and €3,000 in notary and lawyer fees to modify the co-ownership regulations and the divisional description, plus the managing agent's fees.
4. Can the managing agent refuse the transfer? Yes, if it is contrary to the purpose of the building or if it creates inequality between co-owners. The refusal must be reasoned.
5. Can I rent my right of private enjoyment to a third party? Yes, as long as you respect the co-ownership regulations. But be careful: the rental of a common part may be prohibited by the regulations. Check the clauses.

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 →