Reference Decision: cc • No. 10-18.220 • 2011-06-08 • View the decision →
Imagine you are purchasing a flat in Vallauris, in a well-maintained co-ownership. You review all the documents, including the co-ownership regulations (the document that sets out the rules for communal living). You discover a particular clause concerning your unit. You accept it, you sign. But here's the catch: this clause was never validated by the general meeting of co-owners. Is it valid? Can you challenge it?
This is a question that hundreds of owners ask themselves every year on the French Riviera. Between the older residences in Grasse and the more recent buildings in Vallauris, informal modifications to the regulations are common. One owner convinces their neighbours, a document is amended at the notary's office, and the deed is done. But is it legal?
The Court of Cassation, in a judgment of 8 June 2011, answers clearly: no. A modification to the co-ownership regulations that has not been voted on in a general meeting is void, even if the purchaser was aware of it. This decision, seemingly technical, has very concrete consequences for all owners. Let's see why.
The Facts: A Story as Common as Any
The story begins in a co-ownership divided into several units (the flats or private parts). Among them, four particular units: units 33, 34, 35, and unit 32, of significant size. The owners of these units decide to modify the co-ownership regulations to include easements (rights or obligations attached to a property, such as a right of way) between their units.
But beware: they do not convene a general meeting. They do not submit this modification to a vote by all the co-owners. Instead, they obtain the express consents (written and clear agreements) of the concerned owners, and have the modification recorded at the notary's office. The modification is thus integrated into the official documents.
Some time later, Madame Y... acquires units 1 and 2 in this same co-ownership. She becomes aware of this modification to the regulations during her acquisition. She knows that particular easements exist between units 32 to 35. Yet, she decides to challenge this modification. She brings legal proceedings to have it declared unwritten (i.e., void and without effect).
The court rules in her favour at first instance. But the court of appeal, seized by the owners of units 32 to 35, overturns this judgment. It considers that since Madame Y... knew of this modification at the time of her acquisition, and that it had been requested at the notary's office by all the concerned co-owners, she could not challenge it. Madame Y... then appeals to the Court of Cassation. And it is here that the Court of Cassation intervenes, quashing the appeal court's judgment.
The Court's Reasoning — Analysed
The Court of Cassation, in its judgment, recalls fundamental principles of the Law of 10 July 1965 establishing the status of co-ownership. It specifically cites three articles.
First, Article 14, paragraph 3. This article provides that "the co-ownership regulations may be modified by decision of the general meeting". In short, any modification must be decided by the general meeting of co-owners. This is a mandatory formal requirement. In other words, no general meeting, no valid modification. Full stop.
Next, Article 17, paragraph 1. It specifies that "decisions of the general meeting are taken by a majority of the votes of the co-owners present or represented". The modification must therefore be voted on, according to the majority rules provided by law. A simple agreement between a few owners, even notarised, is not sufficient.
Finally, Article 43. It states that "any clause of the co-ownership regulations contrary to the provisions of this law is deemed unwritten". If a clause does not comply with the law, it is void.
The appeal court had rejected Madame Y...'s claim by arguing that she knew of the modification and that it had been recorded at the notary's office. But the Court of Cassation quashes this judgment. Why? Because the appeal court violated these three articles. It admitted a modification that had not been voted on in a general meeting. It does not matter that Madame Y... was aware of it. It does not matter that all the concerned co-owners had requested it at the notary's office. The absence of a vote in a general meeting renders the modification illegal, therefore void.
What few people know is that the purchaser's knowledge of the clause does not validate it. The Court of Cassation is firm: the formality of the general meeting is imperative. It is an essential protection for all co-owners, guaranteeing transparency and democracy in the management of the building.
What This Means for You — Concretely
But what exactly does this change in your life as an owner or purchaser? Let's take concrete examples.
If you are a purchaser, like Madame Y...: you discover, when reviewing the sale documents, a strange clause in the regulations. For example, an easement that obliges your future flat to accommodate the passage of the neighbour's pipes. This clause was not voted on in a general meeting. Even if the seller informs you of it, even if it appears in the notarial deed, you can challenge it. undefined, I have encountered cases where purchasers in Grasse have thus avoided heavy easements, simply because the modification was illegal. Concretely, if you are in this situation, you must: 1) check in the minutes of the general meetings whether the clause was indeed voted on; 2) if not, have it declared void by the court. The time limit to act is generally 5 years from the discovery of the nullity.
If you are a co-owner wishing to modify the regulations: you cannot rely solely on an agreement between neighbours. You must convene a general meeting, include the modification on the agenda, and have it voted on. For example, to create a private parking space on a common part in Vallauris, a vote in a general meeting is required. Otherwise, the modification will be void, even if all co-owners agree. The consequences? If a purchaser challenges it, you may have to restore things to their original state, with costs that can reach several thousand euros.
If you are a landlord owner: an illegal modification can affect the value of your property or generate conflicts with your tenants. Imagine a clause prohibiting pets in your flat rented in Grasse, but this prohibition was not voted on. Your tenant could challenge it, and you would be acting illegally by enforcing it.
However, be careful: this decision does not call into question regular modifications. If a clause was voted on in a general meeting, it is valid. A purchaser who was aware of it cannot challenge it simply because they disagree.
Four Tips to Avoid This Type of Dispute
- Systematically check the minutes of general meetings: before buying or modifying a clause, consult the minutes to ensure that all modifications have been voted on. A notary or solicitor can assist you with this.
- Require a vote in a general meeting for any modification: even if all co-owners agree, convene a GM. It is the only way to guarantee the validity of the modification. The cost? Approximately €150 to €300 for convening and drafting the minutes, but this avoids much more costly lawsuits.
- Document any agreement between co-owners: if you make an informal agreement (for example, for a right of way), have it recorded in writing and have it voted on in a GM to make it enforceable against all, including future purchasers.
- Consult a professional if in doubt: a solicitor specialising in property law can review your documents in 30 minutes and tell you if a clause is valid. At €45 for a consultation, it is a minimal investment compared to the risks.
Further Insight: Related Case Law and Developments
This decision is part of consistent case law. Already, in a judgment of 3 March 1999 (No. 96-21.223), the Court of Cassation had recalled that "the modification of the co-ownership regulations must be decided by the general meeting". It thus confirms a firm guideline: the formality of the GM is immutable.
On the other hand, some prior decisions might have suggested that the purchaser's knowledge of the clause could validate an irregular modification. The appeal court in this case had followed this logic. But the Court of Cassation puts an end to this ambiguity. It clearly states that knowledge is not enough. This is an important evolution for legal certainty.
What does this mean for the future? Courts will be increasingly strict about compliance with formalities. Co-ownerships will need to be rigorous in their procedures. For purchasers, this is enhanced protection: they will be able to challenge illegal clauses more easily. For sellers and co-owners, it is a reminder: everything must be voted on in a GM.
What You Must Absolutely Remember
- 1. Any modification to the co-ownership regulations must be voted on in a general meeting. No exceptions, even if all co-owners agree.
- 2. The purchaser's knowledge of the modification does not validate it. If it was not voted on, it is void, full stop.
- 3. Check the minutes before buying. Request the last 3 years of GM minutes to see if clauses have been regularly adopted.
- 4. In case of modification, convene a GM. The cost is minimal compared to the risk of annulment.
- 5. If you discover an illegal clause, act within 5 years. Consult a solicitor to have the clause declared void.
Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.
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 →
