Prescription of an Abusive Clause in a Co-ownership: The Landmark 2008 Decision Explained

Imagine: you own a flat in Saint-Pierre-des-Corps, in a quiet co-ownership. For years, you have been paying service charges without paying much attention. One day, you discover that the co-ownership by-laws contain a clause requiring you to pay for the maintenance of the common areas in a disproportionately high proportion, or prohibiting you from letting your property. You think: "This is abusive, but can I still take action after so many years?"

This question is asked by hundreds of co-owners every year. The law generally provides time limits for taking legal action: this is known as limitation (the period after which one can no longer bring a claim). However, for certain actions, the law excludes these time limits, particularly when it comes to having a clause declared "non-existent" (i.e., void and of no effect).

The judgment of the Court of Cassation of 7 May 2008 (No. 07-13.409) ruled clearly: an action seeking to have an abusive clause in a co-ownership by-laws declared non-existent is not subject to the limitation period under Article 42 of the Act of 10 July 1965. In short, you can challenge an unlawful clause at any time, even decades after having accepted it. But beware, this rule has its limits. Let’s break down this landmark decision together.

The facts: a story like many others

The case began in Lyon, in a co-ownership located at 76 rue Eugène Pons, 37 rue Joséphin Soulary and 7-9 rue Mascrany. The co-owners' association (the body representing all owners, managed by the syndic) had included in its by-laws a clause that some co-owners considered abusive. What was it about? A clause that imposed a manifestly disproportionate apportionment of charges, or that excessively restricted the rights of co-owners.

A co-owner, whom we will call Mr X, decided to challenge this clause. He sued the co-owners' association before the tribunal de grande instance of Lyon to have the clause declared "non-existent" (i.e., devoid of any legal effect). The association raised a strong argument: under Article 42 of the Act of 10 July 1965, actions between co-owners or against the association are time-barred after ten years from the publication of the by-laws. Since the clause dated back more than ten years, the association argued that the action was inadmissible.

The tribunal de grande instance ruled in favour of the co-owner, but the Lyon Court of Appeal followed the association's argument. Mr X then appealed to the Court of Cassation. In its judgment of 7 May 2008, the Court of Cassation quashed the Court of Appeal's decision and referred the case back to a differently composed Lyon Court of Appeal. The reasoning of the highest court is clear: an action seeking a declaration that a clause is non-existent, based on Article 43 of the 1965 Act, falls outside the limitation period of Article 42.

The court's reasoning — explained

To understand this decision, you need to know two key provisions of the Act of 10 July 1965 governing the status of co-ownership of built properties:

• Article 42: it sets a limitation period (time limit for bringing legal action) of ten years for all personal actions between co-owners or between a co-owner and the association. For example, if you wish to challenge a decision of the general meeting, you have ten years to do so.
• Article 43: it provides that clauses in the co-ownership by-laws that infringe the rights of co-owners set out in Articles 6 to 37 of the Act, or that are contrary to public policy, are deemed non-existent (i.e., void). In other words, certain clauses are so abusive that they are automatically void, without any need to challenge them within a time limit.

The question was therefore: is an action to have a clause declared non-existent under Article 43 subject to the ten-year limitation period of Article 42? The Court of Cassation answered no. Why? Because Article 43 sets out an absolute nullity on grounds of public policy (a violation so serious that it cannot be cured by the passage of time). Allowing an abusive clause to produce its effects indefinitely would be contrary to public policy. The judges considered that limitation cannot purge (make valid) a clause that is void ab initio (from the outset).

What few people know is that this solution was not self-evident. Before 2008, some courts applied the ten-year limitation period to all actions, including those based on Article 43. The Court of Cassation thus put an end to a divergence of interpretation. undefined, I have come across cases where co-owners had lost their right to act because they had waited too long, before this judgment clarified the matter.

However, note: the Court specifies that the action for a declaration that a clause is non-existent is not subject to limitation, but this does not apply to an action for restitution of sums paid under that clause. In other words, if you have paid undue charges because of an abusive clause, you can claim reimbursement, but only within the ordinary five-year limitation period. Therefore, you must act quickly to recover your money.

What this means for you — in practice

For a co-owner: If you discover that your co-ownership by-laws contain an abusive clause (e.g., a clause prohibiting you from letting your flat, or imposing charges for facilities you do not use), you can at any time bring a claim before the court to have it declared non-existent. Even if the by-laws date from 1990, you can act in 2024.

For a buyer: Before purchasing a property in a co-ownership, have the by-laws checked by a lawyer. If an abusive clause exists, it can be challenged after the purchase, even if it was accepted by the seller. Concrete example: in Joué-lès-Tours, a buyer purchased a flat in 2015. In 2023, he discovers that the by-laws prohibit short-term rentals (e.g., Airbnb). This clause is abusive if it is not justified by the purpose of the building. He can challenge it without time limit.

For a tenant: You are not directly concerned by the co-ownership by-laws, but if an abusive clause affects your rights (e.g., a clause restricting access to common areas), the owner can take action. You can also report the clause to the syndic.

For a co-owners' association: This judgment requires you to regularly check that your by-laws comply with the law. An abusive clause can be challenged at any time, exposing the co-ownership to legal action and reimbursements.

Example with figures: in Saint-Pierre-des-Corps, a co-ownership of 20 units had a clause apportioning lift charges equally, even though ground-floor flats did not use the lift. A co-owner challenged the clause in 2020, even though the by-laws dated from 1985. The court declared the clause non-existent, and the co-owner obtained reimbursement of charges paid since 2015 (within the 5-year limit). Without this judgment, he would have been time-barred after 1995.

Four tips to avoid such disputes

• Have your co-ownership by-laws reviewed by a property lawyer at the time of purchase. A lawyer will identify potentially abusive clauses (e.g., prohibition on letting, inequitable apportionment of charges, restriction of co-owners' rights). The cost of this review (€200 to €500) is trivial compared to the stakes.
• Keep all minutes of general meetings and receipts for service charges. In the event of a challenge, you will need to prove the existence of the clause and the harm suffered. Receipts from the last 5 years are essential to claim reimbursement.
• Do not wait to act if you discover an abusive clause. Even though the action for nullity is not subject to limitation, the action for reimbursement of sums paid is limited to 5 years. Each year that passes, you lose the right to recover an additional year of undue charges.
• If you are a syndic, have a vote at a general meeting to amend the by-laws to remove abusive clauses. An unchallenged abusive clause can be invalidated at any time, creating legal uncertainty for the co-ownership.

Further reading: related case law and developments

Before the 2008 judgment, the Court of Cassation had already begun a movement to protect co-owners. For example, in a judgment of 26 March 2003 (No. 01-02.241), it ruled that a clause prohibiting the letting of a unit is deemed non-existent because it infringes the co-owner's right of enjoyment. However, the limitation issue was not settled.

Since 2008, several decisions have confirmed and extended this solution. The Court of Cassation has notably specified that the exemption from limitation also applies to clauses that contravene public policy, such as those that remove the right to vote at general meetings or impose charges without consideration. Conversely, actions for relative nullity (e.g., for lack of consent) remain subject to a five-year limitation period.

The current trend is therefore towards enhanced protection of co-owners against abusive clauses. Courts do not hesitate to declare non-existent clauses that, although old, are contrary to public policy. This means that co-owners' associations must be vigilant: an outdated set of by-laws may contain clauses that have become unlawful due to legislative changes (e.g., prohibition on letting to students, or requirement of principal residence).

Frequently asked questions

• What is a clause deemed non-existent? It is a clause that is considered never to have existed. It is automatically void without the need to challenge it in court, but a judgment is often required to have it established.
• Can I challenge an abusive clause if I voted for it at a general meeting? Yes, because a clause contrary to public policy is void even if you approved it. A vote cannot validate an unlawful clause.
• What are the time limits for claiming reimbursement of sums paid under an abusive clause? You can claim sums paid within the 5 years preceding your legal action (ordinary five-year limitation period). For older sums, you are time-barred.
• What should I do if my syndic refuses to amend the by-laws? You can bring a claim before the judicial court to have the clause declared non-existent. The syndic will be ordered to amend the by-laws and reimburse the undue charges.
• Does this case law apply to residential leases? No, it specifically concerns co-ownership by-laws. For leases, the Act of 6 July 1989 governs abusive clauses.

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