Private or Common Parts: The By-laws Are Decisive (Cass. 3e civ., 7 Jan. 2021)

Imagine yourself, owner of a flat in Alès. You bought this property ten years ago, with a terrace you thought was private. One day, the managing agent tells you that this terrace is actually a common part because the by-laws do not explicitly mention it. Panic sets in. How do you determine what truly belongs to you? The answer lies in a recent decision of the Cour de cassation, which settles a crucial question for all co-owners.

The classification of parts of a co-owned building – private or common – is often a source of conflict. Articles 2 and 3 of the Act of 10 July 1965 provide suppletive rules: parts of collective interest are common, private units are... private. But what happens when the by-laws have already classified these parts? This is the subject of the judgment of 7 January 2021 (no 19-19.459).

The Cour de cassation affirms a simple principle: the classification made by the by-laws excludes the application of Articles 2 and 3. In other words, if the by-laws qualify an element as a "private part", it is private, period. The lower courts do not have to check whether, according to the law, this part would be common or private. A clarification that puts an end to years of uncertainty.

The facts: a story like many that happen every day

In this case, SCI du Merle owned the flat constituting unit no 9 of a co-owned building. This unit included a "terrason" (a small terrace) that SCI considered private. The co-owners' association, on the other hand, argued that the terrasson was a common part because it was not explicitly mentioned in the by-laws. The dispute was set.

SCI du Merle therefore sued the association before the tribunal de grande instance of Nîmes. At first instance, the court ruled in favour of SCI: the by-laws classified the terrasson as a private part. But the cour d'appel of Nîmes reversed this judgment, holding that Articles 2 and 3 of the 1965 Act applied, and that the terrasson, being used by several co-owners, was common. SCI then appealed on points of law.

Before the Cour de cassation, the question was: could the cour d'appel disregard the classification in the by-laws to apply the suppletive rules? The answer is no. The High Court quashed the appellate decision, on the ground that the by-laws had classified the terrasson as a private part, and that this classification alone was relevant. The lower courts could not substitute their assessment for that of the drafters of the by-laws.

The reasoning of the court — dissected

The reasoning of the Cour de cassation is clear: the by-laws are the law of the parties. They determine the allocation of private and common parts, and this classification takes precedence over the suppletive provisions of the Act of 10 July 1965. In short, Articles 2 and 3 apply only in the absence of a contrary stipulation in the by-laws. Here, the by-laws were clear: unit no 9 comprised a flat and a terrasson, without stating that the latter was common. The cour d'appel therefore erred in considering whether, under the law, the terrasson was common.

The Cour de cassation relies on the sovereign interpretation of the by-laws by the lower courts. But this interpretation must not distort the clear terms of the by-laws. In this case, the cour d'appel had distorted the by-laws by considering that the terrassons were balconies. However, the description of unit no 9 referred to a "terrason", a term which, in context, designated a private terrace. In other words, the by-laws were sufficiently precise to classify the element, and the cour d'appel could not reclassify it.

This decision is not a reversal: it confirms consistent case law (notably Cass. 3e civ., 18 July 2001, no 99-20.370). But it strongly emphasises the importance of drafting the by-laws. Co-owners and property professionals must be vigilant: poorly drafted by-laws can create disputes, but clear by-laws avoid them.

What this changes for you — concretely

For landlord owners: You rent out a flat in Alès with a terrace. If the by-laws classify it as private, you can freely dispose of it (rent it out, modify it subject to the by-laws). If the by-laws are ambiguous, the risk is that a co-owner will challenge your right. After this decision, you are more protected if the by-laws are explicit.

For buyers: Before buying, check the by-laws. If the seller tells you the terrace is private, make sure the by-laws mention it. Otherwise, you might end up with a common part. In Le Vigan, a buyer lost €15,000 on the value of his property because the by-laws did not classify the terrace. What few people know is that even exclusive use for years is not enough: only the by-laws are decisive.

For co-owners: If you believe that parts you use exclusively are actually common, you can ask the general meeting to amend the by-laws. But beware: an amendment requires unanimity of all co-owners (except exceptions). In practice, this is difficult. Prevention is better than cure.

For property professionals (agents, notaries): You must draw clients' attention to the importance of the by-laws. A failure to advise can lead to liability. undefined, I have come across cases where a notary was held liable for failing to point out an ambiguity in the by-laws (Cass. 1re civ., 12 June 2013).

Four tips to avoid this type of dispute

• Read the by-laws before buying or renting. Do not rely on oral statements from the seller or managing agent. Check the description of each unit and the list of common parts.
• Consult a lawyer or notary to interpret ambiguous clauses. A 30-minute consultation (around €150) can save you years of litigation. In Le Vigan, a similar dispute cost over €10,000 in legal fees.
• If you are a managing agent, ensure the by-laws are up to date. If in doubt about the classification of an element, have a modification voted on at the general meeting. But remember that unanimity is often required for common parts.
• In case of dispute, favour mediation before litigation. The decision here took over 5 years to become final. Mediation can resolve the conflict in a few months, at a much lower cost.

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Further reading: related case law and developments

This decision is part of a consistent line. As early as 2001, the Cour de cassation held that "the by-laws have binding force" (Cass. 3e civ., 18 July 2001). More recently, a judgment of 12 July 2018 (no 17-21.356) clarified that judges cannot interpret clear by-laws. The trend is therefore towards securing contractual stipulations.

However, caution: the by-laws cannot contravene public policy. For example, they cannot classify as private a common part essential to the structure of the building (load-bearing walls, roof). But in most cases, the by-laws prevail. In short, the drafting of the by-laws is crucial. Professionals must be particularly careful.

For the future, we can expect courts to become increasingly strict about the clarity of by-laws. Drafters should avoid vague expressions like "and other accessories" and prefer precise lists. Digitalisation of deeds may also facilitate the search for these clauses.

Summary and next steps

Here are the questions you are likely asking:

1. Can I challenge the classification of a part if the by-laws are unclear? Yes, but you must prove that the by-laws are ambiguous. The judges then interpret the by-laws, but if they are clear, they cannot modify them.

2. What if I discover that my terrace is common? You can ask the general meeting to buy it or amend the by-laws. Otherwise, you can use it as a co-owner, but not exclusively.

3. What are the time limits for taking action? An action to challenge the classification is time-barred after 10 years from the publication of the by-laws. But if you bought recently, you have 5 years from the sale.

4. How much does litigation cost? Between €3,000 and €10,000 depending on complexity. Mediation costs around €500 to €1,000.

5. Can I sell my property if the classification is disputed? Yes, but you must inform the buyer of the dispute. Better to resolve the issue first.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of litigation — and often much more. Book an appointment →