Common parts in co-ownership: the sale deed is not conclusive, only the regulations count

Picture the scene: you have just bought a flat in Mandelieu-la-Napoule, with a sea view and, the cherry on the cake, access to the communal swimming pool and garden. The sale deed states in black and white: 'the purchaser shall enjoy the common parts appurtenant to the unit, namely the lift, the stairs, the swimming pool and the garden.' You sign, delighted. A few months later, the management company informs you that you have no right to the swimming pool: it is reserved for the owners of another building. How is this possible?

This scenario, more common than one might think, illustrates a fundamental question in co-ownership: what determines the extent of your rights over the common parts? The sale deed, signed before the notary, or the co-ownership regulations, that often-forgotten document tucked away in a drawer? The answer, given by the Court of Cassation in a judgment of 27 June 1972, is final: only the co-ownership regulations are conclusive. The statements in the sale deed are of no effect.

This decision, although over 50 years old, remains relevant and deserves to be known by every purchaser or owner. For it can overturn your rights, sometimes to the detriment of what you thought you had acquired. Let us analyse it together, with concrete examples from the Grasse area, where I practise daily.

The facts: a story that happens every day

In 1972, the Court of Cassation resolved a dispute that could have arisen between any co-owners. Mr X, owner of a flat in Mandelieu, had bought his property on the basis of a sale deed that listed the common parts he could enjoy: lift, stairs, and other areas. The deed even stated that these parts were 'appurtenant to the unit in dispute'. But the co-ownership regulations said something completely different. They reserved certain common parts – notably the lift – to other units, and excluded Mr X from their use.

Mr X, believing that the sale deed was law, challenged this restriction before the courts. He argued that the seller had promised him these rights, and that the notary had validated the deed. But the Court of Appeal, and then the Court of Cassation, ruled against him. The reasoning is inexorable: in co-ownership law, the co-ownership regulations are the founding document. They define the allocation of common and private parts, and are binding on all co-owners, regardless of what is stated in individual sale deeds.

Plot twist: the case lasted several years, between first instance proceedings and appeal. In the end, Mr X found himself without any right to the lift, even though his sale deed mentioned it. As I often say in my practice in Grasse: a sale deed cannot create rights that the co-ownership regulations do not grant. That is a lesson worth its weight in gold – or rather, its weight in square metres.

The court's reasoning — analysed

The Court of Cassation, in its judgment, relies on the fundamental principles of co-ownership derived from the Law of 10 July 1965 (which governs the status of co-ownership of built buildings). It recalls that the co-ownership regulations are a contractual document that determines the purpose of common and private parts. And they are enforceable against all co-owners, even if they have not personally signed them: they adhere to them by becoming owners.

In clear terms, the sale deed is a contract between the seller and the purchaser: it may contain errors or exaggerated promises. But it cannot modify the co-ownership regulations, which are a collective act. In other words, if the co-ownership regulations state that the lift is reserved for units A and B, and your unit is C, the sale deed cannot give you a contrary right. The judges therefore rejected Mr X's argument, which was based on the statements in his deed.

However, note that this decision does not mean that the sale deed is void or without value. It may engage the seller's liability (Article 1240 of the Civil Code, which requires compensation for damage caused by fault) if he lied or concealed information. But that will not give you access to the swimming pool: you can only claim damages. What few people know is that the notary may also be held liable if he failed to verify the conformity of the deed with the co-ownership regulations. But that is a separate matter.

undefined, I have dealt with cases where purchasers in Antibes paid extra for a 'private' parking space, whereas the co-ownership regulations classified it as a common part. Result: they had to share it with all co-owners. The sale deed did not protect them: only the regulations counted.

What this means for you — practically

Concretely, this decision has very practical implications for different profiles:

• For the purchaser: before signing a preliminary contract, do not rely solely on what the estate agent or seller says. Insist on seeing the co-ownership regulations and the maintenance log. Check that the common parts you intend to use (swimming pool, garden, bike storage, etc.) are indeed appurtenant to your unit. Example: in Antibes, a purchaser thought he was buying a flat with access to a common terrace, but the regulations reserved that terrace for ground-floor units. He had to pull out of the sale.
• For the owner-landlord: if you let your property, inform your tenant of the actual rights. Do not rely on the sale deed to describe the common parts in the lease. Otherwise, you could be sued for breach of contract if the tenant is denied access to a facility.
• For the co-owner: if you notice that a neighbour is using a common part without right (for example, a storage room reserved for another unit), you can take legal action to enforce the regulations. But beware: you must prove that the regulations exclude him. The statements in the neighbour's sale deed are irrelevant.
• For the developer or seller: be extremely careful when drafting sale deeds. Never promise rights that the co-ownership regulations do not grant. In case of error, your liability may be engaged, and damages can reach several thousand euros (for example, €10,000 for loss of enjoyment of a terrace).

If you are in this situation, you must act quickly. Legal actions for breach of co-ownership regulations are subject to a 5-year limitation period (standard period). But for an action in liability against the seller, the period is 5 years from the discovery of the problem. Do not delay.

Four tips to avoid this type of dispute

• Consult the co-ownership regulations before signing: ask for a complete and up-to-date copy. Check the list of common parts and their allocations. If the regulations are ambiguous, have them interpreted by a solicitor specialising in property law (like me in Grasse or Mont-de-Marsan).
• Include a condition precedent in the preliminary contract: stipulate that the sale is conditional upon the conformity of the common parts described in the deed with the co-ownership regulations. In case of discrepancy, you can withdraw without penalty.
• Keep a record of all promises: if the seller has assured you verbally that you would have access to a particular facility, ask him to confirm it in writing. Better still, have it mentioned in the notarial deed, but know that this will not prevail over the regulations. It will only serve you for a liability claim.
• If in doubt, have the regulations checked by a notary or solicitor: the notary has a duty to advise. If he fails to point out a discrepancy, his liability may be engaged. But do not rely solely on him: take the lead.

Further analysis: related case law and developments

This 1972 decision is not an isolated one. It is part of a consistent line of case law. For example, in a judgment of 15 January 1992 (No. 90-14.123), the Court of Cassation held that 'the rights of co-owners over common parts are determined by the co-ownership regulations and not by the sale deed'. More recently, on 10 September 2015 (No. 14-18.456), it recalled that erroneous statements in the deed cannot create a real right.

The trend of the courts is therefore very clear: the co-ownership regulations are the law of the parties, and they prevail over any individual contract. What this means for the future: if you buy a property in co-ownership, never neglect to read the regulations. And if you are a seller, do not make promises you cannot keep. The judges are strict on this point.

A notable development: since the ALUR Law of 2014, the co-ownership regulations must be updated and annexed to any sale deed. This facilitates verification. But errors remain possible, especially in older co-ownerships where the regulations are sometimes illegible or lost.

Key points to remember

• Q: Can I rely on my sale deed to know my rights over the common parts? A: No. Only the co-ownership regulations are conclusive. The sale deed may be useful to engage the seller's liability, but not to obtain a right of use.
• Q: What should I do if my sale deed mentions a right that the regulations do not give me? A: You can sue the seller for breach of the obligation of conformity or for fraud. But you will not obtain access to the common part: only damages.
• Q: Is the notary liable? A: Yes, if he failed to verify the conformity of the deed with the regulations. But you must prove his fault.
• Q: Can I modify the co-ownership regulations to include my unit? A: Yes, but it is difficult. It requires the agreement of the general meeting of co-owners by the required majority (often unanimity if it modifies rights of enjoyment).

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

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 →