Descriptive Notice and Common Parts: When the Co-Ownership Regulations Prevail over Promises

Imagine: you have just bought a beautiful apartment in Biscarrosse, with a view of the lake and a private terrace. Everything is perfect, until the day your downstairs neighbour tells you that this terrace, in reality, is a common part. He relies on a descriptive notice provided by the developer, which mentions that the terraces are shared spaces. Yet the co-ownership regulations and the divisional descriptive statement (the document listing each lot) clearly indicate that the terrace belongs to you outright. Who is right?

This is exactly the question that the Court of Cassation decided on 9 May 2019 (appeal no. 18-16.717). And the answer is clear: the co-ownership regulations and the divisional descriptive statement prevail over the descriptive notice. The latter is merely a technical document describing the materials and characteristics of the construction, but it cannot modify the composition of the lots or their property rights.

This decision is essential for all co-owners, especially in tourist areas like Mimizan or Biscarrosse, where new developments are flourishing. It protects the legal security of notarised deeds (deed of sale) and prevents advertising or technical documents from calling into question what is written in black and white at the notary's office.

The Facts: A Story That Happens Every Day

Mr X and Mrs Y bought an apartment in a new development in Biscarrosse in 2005. The development was sold off-plan (VEFA - Sale in the Future State of Completion). They received a descriptive notice, a document describing the materials, equipment and technical characteristics of the building. This notice mentions that the terraces and private gardens are in fact common parts with private use. But the co-ownership regulations and the divisional descriptive statement, signed at the notary's office, attribute these spaces to the lots as private parts with shares (quotepart) of general common parts.

A few years later, a conflict arises with the co-owners' association. The latter argues that the terraces are common parts, because the descriptive notice says so. Mr and Mrs Y take the matter to court to have their exclusive property right recognised. The Bordeaux Court of Appeal rules in their favour: the co-ownership regulations prevail. The association appeals to the Court of Cassation.

Before the Court of Cassation, the association argues that the descriptive notice forms part of the contractual documents (documents accepted by the buyer) and must prevail. It adds that the allocation of shares does not prevent an action for recovery of immovable property (action to claim property one believes to be one's own). But the Court rejects these arguments.

The Reasoning of the Court — Analysed

The Court of Cassation confirms the reasoning of the Court of Appeal. It first recalls the function of the descriptive notice: it indicates the technical characteristics of the building and the equipment works, but it does not define the buyer's rights. These rights are fixed by the co-ownership regulations and the divisional descriptive statement, which are notarised deeds (signed by a notary) and published in the land registry.

Next, the Court emphasises that the regulations and the divisional descriptive statement allocate to the disputed lots shares of general common parts, their precise composition, their purpose and their express private character excluding any common part. In other words, these documents clearly say that the terrace is a private part. The descriptive notice, which is a technical document, cannot contradict these clear provisions.

The Court specifies that the allocation of shares is not a mere indication: it carries a presumption of ownership. To overturn this presumption, it would be necessary to demonstrate an error or fraud (deception) at the time of sale. However, in this case, the buyers had adhered to the regulations and the divisional descriptive statement, and the notice did not constitute a contractual guarantee.

In short, the Court of Cassation affirms the primacy of notarised deeds over technical and advertising documents. This is a landmark decision (arrêt de principe) that confirms settled case law (the usual position of the courts).

What This Changes for You — Practically

If you are the owner of a co-ownership lot, this decision reassures you: what is written in the co-ownership regulations and the divisional descriptive statement is authoritative. You do not have to fear that a descriptive notice, sometimes drafted by the developer to enhance the development, will call your property right into question.

For buyers of new properties, the lesson is clear: read the co-ownership regulations carefully before signing the notarised deed. If the notice describes a garden as a common part but the regulations say the opposite, the regulations prevail. However, be careful: if the regulations are ambiguous or contradictory, the notice could be used for interpretation. But in case of conflict, the regulations prevail.

For co-owners in Mimizan, imagine a lot with an attached garage. The notice says the garage is a common area, but the divisional descriptive statement attributes it to the lot as private. You can rest easy: your garage is indeed yours. On the other hand, if you are in dispute with the association, you can rely on this case law to assert your rights.

What few people know is that this decision also applies to promises of sale and preliminary contracts. If the developer has given you a notice that differs from the regulations, you can ask for explanations before the final signature.

Four Tips to Avoid This Type of Dispute

• Keep all documents: keep the descriptive notice, the co-ownership regulations, the divisional descriptive statement and the deed of sale. In case of doubt, these documents will allow your lawyer to decide.
• Compare documents before the sale: if you buy off-plan, ask your notary to check the consistency between the notice and the regulations. In case of contradiction, demand a modification of the regulations or a written clarification.
• Do not rely on the developer's statements: verbal promises or advertising documents (brochures, plans) do not replace notarised deeds. Always have what is important written in the contract.
• In case of dispute, act quickly: if you discover a contradiction, take the matter to the judicial court within 5 years from the sale (standard limitation period). After that, you might lose your right to act.

Further Reading: Related Case Law and Developments

This decision is part of a consistent line. Already in 2013 (Civ. 3e, 20 March 2013, no. 12-14.179), the Court of Cassation had ruled that the co-ownership regulations prevail over the descriptive notice. More recently, in 2021 (Civ. 3e, 10 June 2021, no. 20-14.052), it specified that the descriptive notice cannot create real rights (rights over immovable property) if it is not included in the notarised deed.

The trend is therefore clear: judges protect the legal security of notarised deeds. This means that a developer cannot unilaterally modify the composition of lots by a simple notice. If you are a victim of deception, you must act on the basis of fraud (fraud by omission - deceitful silence) and not on an interpretation of the notice.

For the future, this case law could extend to other technical documents such as the technical diagnosis or the building maintenance logbook. Stay vigilant.

In Practice: What to Do

FAQ:

• Can I challenge my co-ownership regulations based on the descriptive notice? No, unless the regulations are ambiguous. The notice has only informative and technical value.
• What if my lot is described as private in the regulations but as common in the notice? Nothing, the regulations prevail. But if you are in court, show this case law to the judge.
• Can I ask for a modification of the regulations to make them correspond to the notice? Yes, but it requires the agreement of the general meeting of co-owners by a two-thirds majority (art. 26 of the law of 10 July 1965).
• What is the time limit to act? 5 years from the sale. After this period, you risk limitation (loss of the right to act).
• How much does legal action cost? Count between €1,500 and €5,000 in lawyer's fees depending on complexity, plus any expert fees.

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Conclusion

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