Reference Decision: cc • No. 23-11.700 • 2024-07-11 • View the decision →
Imagine: you are selling your flat in Biscarrosse. The notary informs you that the co-ownership union has filed an opposition against the sale price for unpaid service charges. To allow the sale to proceed, you accept that the notary pays the amount claimed. But you believe the amount is excessive or unjustified. Can you still challenge it after receiving the sale price? The Court of Cassation, in a judgment of 11 July 2024 (No. 23-11.700), answers yes: payment made by the notary, in the absence of judicial challenge by the seller, does not amount to acquiescence (admission of the debt). A decision that reassures seller-owners.
But what does this actually change for you, an owner in Dax, a co-owner in Mont-de-Marsan, or a buyer on the Landes coast? A lot. This judgment clarifies a frequent grey area in co-ownership sales: payment under the compulsion of an opposition does not deprive you of your rights. Analysis.
Let's start at the beginning: what does the law say? Article 20 of the Act of 10 July 1965 allows the co-ownership union to oppose payment of the sale price of a unit to recover unpaid service charges. The notary then blocks part of the price. If the seller does not challenge it in court, payment is made. Until now, some considered that this payment amounted to an admission of the debt. The Court of Cassation puts an end to this uncertainty.
The Facts: A Story That Happens Every Day
Mr X, owner of a flat in Dax, sold his property in 2020. The co-ownership union claimed €8,500 in unpaid service charges from him. It filed an opposition with the notary under Article 20 of the 1965 Act. To allow the sale to proceed, Mr X accepted that the notary pay this sum to the union. But he challenged the amount: according to him, some charges were time-barred (too old) or unjustified. He sued the union in court for reimbursement.
The first instance court partly ruled in his favour: it reduced the debt to €3,200. But the union appealed. The Bordeaux Court of Appeal, in its judgment of 13 December 2022, reversed the decision: it considered that by allowing the notary to pay without judicially challenging the opposition, Mr X had acquiesced (admitted) the debt. He could no longer go back on it. Mr X appealed to the Court of Cassation.
Before the Court of Cassation, the issue was clear: does payment made by the notary as a result of an opposition, without the seller having brought a judicial challenge, constitute acquiescence to the debt? The Court answered no on 11 July 2024. It quashed the appeal judgment and referred the case to another court of appeal.
The Reasoning of the Court — Analysed
The Court of Cassation relies on Article 20, I, of Act No. 65-557 of 10 July 1965, which provides that the co-ownership union may oppose payment of the price to recover unpaid service charges. But this opposition is neither a legal claim nor a judgment. In other words, it is not a court decision that resolves the dispute. The resulting payment is a mere protective (interim) measure to secure recovery.
Consequently, payment by the notary cannot constitute acquiescence by the seller to the debt. Acquiescence requires an unequivocal (clear and unambiguous) intention to recognise the other party's right. However, accepting payment to unblock a sale, under the compulsion of the opposition, is not a voluntary admission. It is a practical necessity.
The Court clarifies that only a prior judicial challenge by the seller (for example, issuing a claim to challenge the opposition) could prevent the payment from being considered acquiescence. But in the absence of a challenge, the payment does not entail admission of the debt. The seller retains the right to subsequently challenge the amount of the charges.
This reasoning confirms a protective trend towards debtors (persons who owe money) in opposition procedures. It prevents the seller from being trapped by a procedure they cannot avoid without blocking the sale.
What This Changes for You — Concretely
If you are a seller-owner in a co-ownership: you can accept payment of the charges claimed by the union via the opposition, without losing the right to challenge the amount after the sale. For example, if the union claims €12,000 in charges in Biscarrosse, but you believe €5,000 are time-barred (more than 5 years old), you can let the notary pay and then sue the union for reimbursement. However, you must act promptly, within the limitation period (generally 5 years).
If you are a buyer: the opposition ensures that unpaid charges are settled from the sale price. You need not fear being chased after the purchase. But check that the union has indeed filed an opposition; otherwise, you could be jointly liable (responsible with the seller) for charges due before the sale.
If you are a non-selling co-owner: this decision does not directly affect your rights. But it reminds that the union must precisely justify the charges claimed. An overly greedy union might be forced to repay.
undefined, I have encountered cases where sellers, under the pressure of an opposition, paid questionable charges and then did not dare to take action. This judgment gives them a lifeline: they can recover sums unduly paid.
Four Tips to Avoid This Type of Dispute
- 1. Request a detailed statement of charges before the sale. Before signing the preliminary contract, demand from the union an individual statement of charges with details of sums due. Check dates, calls for funds, and any penalties. In Dax, for example, a managing agent may charge abusive recovery fees.
- 2. Challenge the opposition in writing within 15 days. If the union files an opposition, write to them immediately to challenge the amount. Keep a copy. This shows your disagreement and can avoid a finding of acquiescence (even though the judgment says payment alone is insufficient).
- 3. Do not accept payment without reservation. During the sale, ask the notary to mention in the deed that payment is made "subject to all rights" or "without admission of debt." This strengthens your position.
- 4. Consult a solicitor as soon as the amount is questionable. If the charges claimed exceed €2,000, a consultation can save you from losing significant sums. In Biscarrosse, legal fees are often lower than the stakes.
Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.
Further Analysis: Related Case Law and Developments
This judgment is part of a protective line: the Court of Cassation had already ruled (Civ. 3rd, 10 June 2021, No. 20-15.230) that payment by the notary on opposition does not amount to admission of the debt if the seller subsequently challenges it. The 2024 decision goes further: even without prior challenge, payment does not entail acquiescence.
However, an earlier decision (Civ. 3rd, 13 January 2016, No. 14-27.893) had seemed to suggest the opposite by considering that a seller who did not challenge the opposition was deemed to accept the debt. The 2024 decision therefore effects an implicit reversal: it clarifies that opposition is not a legal claim, so silence does not constitute acquiescence.
What this means for the future: unions will have to be more precise in their statements and can no longer rely on sellers' passivity to endorse questionable charges. Sellers now have a legal weapon to recover overpayments.
Frequently Asked Questions
1. Can I challenge the charges after signing the deed of sale?
Yes, according to this judgment, payment by the notary does not prevent you from challenging the amount of charges after the sale. You must bring a claim within 5 years of payment.
2. What if the union refuses to repay after my challenge?
You must sue the union before the Judicial Court (standard procedure). A solicitor is mandatory if the amount exceeds €10,000; below that, you can apply to the local judge.
3. What are the time limits for challenging?
The limitation period is 5 years from the date of actual payment (Article 2224 of the Civil Code). For charges prior to the sale, the starting point is the date of the opposition.
4. Can the buyer be pursued for unpaid charges of the former owner?
No, if the union has filed an opposition, the charges are deducted from the sale price. Otherwise, the buyer may be jointly liable for one year after the sale (Art. 20 of the 1965 Act).
5. How much does a procedure to challenge charges cost?
Solicitor's fees vary: a simple consultation costs €150-250; a full procedure, €1,500-3,000. But if you win, the union may be ordered to pay your costs.
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 →
