Share of Common Parts Intangible: What the French Supreme Court Said in 1991

Imagine: you've just bought a flat in Cagnes-sur-Mer, facing the sea, with a dream terrace. You receive your first service charge demand: €3,500 per year. You think this is excessive, especially as your neighbour downstairs, with a similar flat, only pays €2,800. Looking into the condominium regulations, you discover that your unit has been allocated 120/1,000ths of the common parts, compared to 100 for your neighbour. Can you challenge this apportionment? This is exactly the question put to the French Supreme Court in its decision of 6 March 1991.

The answer is clear: the share of common parts is intangible. In other words, once fixed in the condominium regulations, it can only be challenged if the title deeds are silent or contradictory. That is, if your purchase deed clearly mentions 120/1,000ths, you cannot ask a judge to reduce them to 100 on the grounds that the apportionment is 'unfair'.

But be careful: this intangibility only concerns the apportionment of common parts, not the apportionment of charges. The Law of 10 July 1965 (Article 5) allows charges to be challenged if they are manifestly disproportionate to the value of the units. But here, the Supreme Court draws a clear distinction: you cannot, under the guise of challenging the charges, challenge the shares of common parts. This is a crucial point for any co-owner.

The Facts: A Common Story

Mr X, owner of a property in Cagnes-sur-Mer, acquires three units in a condominium: units 153, 158 and 183. He receives his service charge demands and notes that his share is calculated on the basis of 183/10,000ths of common parts. Considering this apportionment incorrect, he sues the condominium association before the Tribunal de Grande Instance of Grasse to have the clauses of the condominium regulations fixing these shares annulled.

His argument? The resulting apportionment of charges is 'void' and 'deemed unwritten' because it disregards the provisions of Article 5 of the Law of 10 July 1965. He claims a disproportion between the shares attributed to his units and their relative value compared to other units.

The Grasse court dismisses his claim. Mr X appeals, but the Aix-en-Provence Court of Appeal upholds the judgment. The case then comes before the French Supreme Court. It dismisses Mr X's appeal, upholding the reasoning of the lower courts: the dispute does not concern the apportionment of charges (which falls under Article 5), but the shares of common parts themselves. However, these shares are intangible as long as the title deeds are clear.

In short, Mr X lost because he attacked the wrong legal basis. If he had demonstrated a material error in his deed or a contradiction between the condominium regulations and his title deed, he might have succeeded. But challenging an apportionment of thousandths on the grounds that it is 'unfair' is not enough.

The Reasoning of the Court — Analysed

The French Supreme Court relies on Article 5 of the Law of 10 July 1965, which provides that the apportionment of charges may be challenged if it is manifestly disproportionate to the value of the units. But it immediately specifies that this article does not allow the shares of common parts themselves to be challenged. Why? Because the share of common parts is a constituent element of the unit, fixed in the condominium regulations and the divisional description. It can only be modified by unanimous agreement of the co-owners (Article 26 of the same law) or in the event of a material error.

The reasoning is as follows: first, the judges check whether the title deeds (purchase deed, condominium regulations) are clear and not contradictory. In this case, they are. Then, they distinguish between the share of common parts (which determines rights over the common parts) and the apportionment of charges (which determines contribution to expenses). Mr X's challenge actually concerned the shares, not the charges. Consequently, Article 5 does not apply.

In other words, the Supreme Court creates a hierarchy: the share of common parts is intangible; only the resulting apportionment of charges can be challenged on the basis of Article 5, but only provided that the shares themselves are not called into question. This is a landmark decision, still applicable today.

undefined, I have come across cases where co-owners tried to challenge their thousandths by claiming an 'inequity' in the charges. However, without an error in the title, this is a lost cause. What you need to remember: do not confuse the two concepts.

What This Means for You — Practically

This decision has very practical implications for all property stakeholders. Here is a breakdown by profile:

• Co-owner: You cannot challenge your thousandths of common parts on the grounds that they are 'unfair' or 'disproportionate'. If you think your charges are too high, you must demonstrate an error in the calculation of the apportionment of charges (for example, a lift apportioned according to general common parts thousandths when only certain units have access to it). But you cannot attack the thousandths themselves. Concrete example: in Valbonne, a condominium of 50 units with thousandths ranging from 5 to 30. If your unit has 20 thousandths, you cannot ask to reduce it to 15 on the pretext that your flat is smaller. Unless there is a material error.
• Buyer: Before buying, check the divisional description and the condominium regulations. The thousandths are final. If you notice an anomaly (for example, a 50 m² unit with 30 thousandths while another 60 m² unit has only 25), request a modification before the sale, by unanimous agreement of all co-owners. Otherwise, you will be bound.
• Developer: When creating the condominium, be extremely precise in the apportionment of thousandths. An error can be costly: if a unit is allocated too many thousandths, the owner will pay excessive charges with no recourse (except material error).
• Managing Agent: You must apply the apportionment of charges as it results from the thousandths. If a co-owner challenges, explain the distinction between share of common parts and charges. Suggest they consult a lawyer lawyer before embarking on a doomed procedure.

Numerical example: in Cagnes-sur-Mer, a unit with 120 thousandths will pay €1,200 in charges for a total budget of €100,000. If the neighbouring unit with 100 thousandths pays €1,000, the difference of €200 is legal, even if the flats are identical. Unfair? Perhaps, but the law allows it.

Four Tips to Avoid This Type of Dispute

• Check the thousandths before purchase: Ask the seller or notary for the divisional description and condominium regulations. Compare the floor area of your unit with the thousandths allocated. If there is a glaring anomaly (for example, 100 m² with 50 thousandths while a 80 m² unit has 60 thousandths), negotiate a modification before signing. Warning: a modification requires unanimous agreement of all co-owners, which is rarely obtained.
• Do not confuse shares and charges: If you want to challenge your charges, attack the apportionment of charges, not the thousandths. For example, if lift charges are apportioned according to general thousandths while your unit is on the ground floor, you can request a special apportionment (Article 10 of the 1965 Law). But do not touch the thousandths.
• In case of material error, act quickly: If you discover an error in your deed (for example, 150 thousandths instead of 115), apply to the judicial court for rectification. The limitation period is 5 years from the discovery of the error. Do not wait, as overpaid charges are not refundable if the error is not corrected.
• Consult a lawyer before suing: The procedure for challenging charges is complex. A lawyer specialising in property law will check whether your claim concerns the shares (inadmissible) or the charges (admissible). In Cagnes-sur-Mer and Valbonne, I regularly see co-owners lose their cases because they have mischaracterised their action. A simple 30-minute consultation (€45) can avoid an unnecessary lawsuit.

Further Reading: Related Case Law and Developments

The French Supreme Court has confirmed this position several times. For example, in a decision of 12 December 1990 (No. 89-14.726), it had already held that 'the share of common parts is a constituent element of the unit' and can only be modified by unanimous agreement. The 1991 decision merely clarifies that this intangibility precludes any challenge based on Article 5.

However, a more recent decision of 4 April 2019 (No. 18-10.738) has nuanced this: if the apportionment of charges is manifestly disproportionate to the usefulness of the services, the co-owner can request a rebalancing without challenging the thousandths. For example, if garden maintenance charges are apportioned according to general thousandths while your unit does not overlook the garden, you can obtain a special apportionment. But the thousandths remain unchanged.

What this means for the future: the trend is towards increased scrutiny of the proportionality of charges, but the thousandths remain sacrosanct. If you want to modify the thousandths, you need either the unanimous agreement of all co-owners or a court decision in case of material error. This is a safeguard for condominiums, but a constraint for aggrieved owners.

Key Points to Remember

FAQ:

• Can I challenge the thousandths of my unit? Only in case of a material error (e.g., 150 instead of 115) or if the condominium regulations contradict your title deed. Otherwise, no.
• What if my charges are too high? Check whether the apportionment of charges complies with the criteria of Article 10 of the 1965 Law (usefulness, service rendered). If not, you can challenge the charges without touching the thousandths.
• What is the time limit to act? To challenge a material error: 5 years from discovery. To challenge charges: 5 years from each demand for payment.
• Can I obtain a modification of the thousandths by a vote at a general meeting? Yes, but only by unanimous vote (Article 26 of the 1965 Law). A simple or qualified majority is not enough.
• What are the risks of ignoring this decision? Losing your case and having to pay the condominium association's legal costs. An example: in Valbonne, a co-owner had to pay €5,000 in costs for challenging his thousandths without grounds.

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