General Meeting of Co-owners: A Refusal to Change Use Binds Everyone, Even Judges

Imagine the scene: you own a commercial unit on the ground floor of a posh building in Cannes, Avenue Jean Jaurès. You decide to convert it into a dwelling to let it as a tourist furnished rental. You have a good return in mind, the works are ready. But the general meeting (GM) of co-owners refuses, by a short majority. Can you override it? How far does the power of the GM go? And what if the by-laws do not explicitly prohibit this change?

This question, I often see it in my practice between Grasse and Mont-de-Marsan. Owners are frustrated: 'It's my unit, I do what I want with it!' But co-ownership is a democracy, and its decisions, once final, bind everyone. A decision of the Court of Cassation of 8 June 2017 (No. 16-16.566) forcefully reminds us: a GM decision refusing a change of use binds everyone, without judges having to verify whether it is contrary to the by-laws, socially useful, or causing disturbances.

In other words, even if your project is perfectly legal and disturbs no one, if the GM has said no, it's no. But what exactly does this change for you in practice? Let's decipher this decision and its practical implications for co-owners on the Côte d'Azur and in the Landes.

The facts: a story like those that happen every day

Mr. X is the owner of a unit in a co-ownership in Nice, Libération district. His unit is used for commercial purposes (shop). He wishes to convert it into a dwelling. The by-laws do not formally prohibit this change, but the general meeting, seized of the matter, votes against: 7 co-owners present or represented totalling 3,877 shares (co-ownership shares) vote in favour, 3,825 shares vote against, 614 abstain, and 18 absent co-owners represent 1,684 shares. The majority required for such a decision (Article 26 of the 1965 Law: majority of votes of all co-owners) is not reached in favour of the change. In reality, it is a refusal: the proposal did not obtain the necessary majority.

Mr. X challenges this decision before the court. He argues that the change is not contrary to the by-laws, that it has social utility (creating a dwelling in a tight housing market) and that it causes no disturbance. The Paris Court of Appeal rules in his favour: it annuls the GM decision on the ground that it is abusive, without verifying whether the change was actually compatible with the by-laws or whether it created nuisances. The majority co-owners (those who voted against) appeal to the Court of Cassation.

The Court of Cassation quashes the appeal judgment. It recalls that the GM decision, even if refusing a change, binds all co-owners as long as it is not annulled for abuse of majority or other defect. However, to annul a decision, it must be shown that it is abusive, i.e., contrary to the collective interest. But here, the Court of Appeal did not characterise the abuse: it merely said that the change was not contrary to the by-laws, useful and without disturbance. That is not sufficient. In short, judges cannot substitute their assessment for that of the GM simply because the project is 'reasonable'. The GM is sovereign, except in cases of clear abuse.

The reasoning of the court — dissected

The Court of Cassation relies on Articles 26 and 42 of the Law of 10 July 1965. Article 26 lists the decisions that must be taken by a majority of votes of all co-owners (the double majority: majority in number and in shares). A change of use of a unit (for example, converting a commercial unit into a dwelling) is one of them. If the proposal does not obtain this majority, it is rejected. Article 42 allows any co-owner to challenge a GM decision within two months, by showing that it is abusive or contrary to the law.

But careful: abuse of majority is not constituted simply by the fact that the decision is unfavourable to a co-owner. For abuse to exist, it must be proved that the majority co-owners voted solely in their own personal interest, to the detriment of the collective interest, or that they violated the by-laws or the law. Here, the Court of Appeal had not established that the refusal was abusive; it had simply judged that the project was 'legitimate' (compliant with the by-laws, useful, without disturbance). However, the legitimacy of a project does not make a refusal decision abusive.

What few people know is that the Court of Cassation has already affirmed in earlier decisions (e.g., Civ. 3e, 18 December 2002, No. 01-03.076) that the refusal to authorise a change of use is not abusive in itself, even if the by-laws allow it. The 2017 decision goes further: it prohibits judges from verifying compliance with the by-laws, social utility or the absence of disturbance to annul a refusal. In other words, the GM can refuse a change even if it is perfectly authorised by the by-laws and without nuisances, provided the refusal is not dictated by an abusive personal interest. This is a confirmation of the GM's discretionary power over uses.

undefined that if you want to change the use of your unit, you must obtain the prior agreement of the GM. If the GM refuses, you cannot override it, except by showing a clear abuse of majority, which is very difficult. The mere fact that your project is 'reasonable' is not enough.

What this changes for you — concretely

This decision has direct consequences for several profiles:

Landlord owner: You want to convert a commercial unit into a dwelling to let it? You must obtain the GM's agreement. If the GM refuses, you keep a commercial unit, even if the residential market is buoyant. In Nice, for example, a 30 m² commercial unit on Rue de France can rent for €1,200/month as a dwelling, compared to €800/month as commercial. The difference in return is real, but without GM agreement, you cannot. undefined, I have come across cases where the refusal was motivated by the fear of noisy tourists arriving. Even if your project is quiet, the GM can say no.

Purchaser: Before buying a unit, check its use in the by-laws and ask for the minutes of the last GM. If you plan to change the use, know that the GM can refuse. Include a suspensive condition in your sale agreement: 'subject to the GM's agreement for the change of use'. Otherwise, you risk buying a property that you cannot use as intended. For example, if you buy an old office in Cannes to convert it into a flat, without prior GM agreement, you could end up with an unusable office.

Co-owner: You are a co-owner opposed to a change of use? The decision comforts you: the GM can refuse without having to justify a disturbance. But careful, a systematic and bad faith refusal may be abusive. For example, if you refuse solely because of the applicant's origin, you risk an action for abuse of majority.

Tenant: You rent a unit used for commercial purposes and you want to live in it? Your landlord must obtain the GM's agreement. Without it, you cannot change the use. If you do so without authorisation, you risk termination of the lease for unauthorised change of use.

In summary, if you are in this situation, you must: 1) check the current use of your unit, 2) consult the by-laws, 3) request the inclusion of a resolution on the agenda of the next GM, 4) convince the co-owners of the merits of your project (present guarantees: quiet tenants, absence of nuisance, etc.), 5) if refused, challenge only if you can prove an abuse of majority (personal interest of opponents, violation of the by-laws, etc.). The deadline to challenge is two months from notification of the GM minutes.

Four tips to avoid this type of dispute

• Anticipate upstream: Before buying a unit, have the by-laws analysed by a lawyer lawyer (like me, Maître Zakine). Identify clauses on uses. If you plan a change, request a resolution from the GM at the time of purchase, with a suspensive condition.
• Prepare your file for the GM: Present a detailed project: plans, intended use (furnished rental, main residence), insurance, guarantees of peace (tenants without pets, no tourist rental). The more reassuring your project is, the more likely you are to obtain agreement.
• Negotiate with opponents: Before the GM, meet influential co-owners. Propose adjustments (e.g., enhanced soundproofing, restricted delivery hours). In Nice or Cannes, co-ownerships are often small: convincing 2 or 3 people can swing the majority.
• In case of refusal, act quickly: If you believe the refusal is abusive, challenge it within two months. Gather evidence: emails showing the personal interest of opponents (e.g., a co-owner who refuses to avoid competition with his own commercial unit). Legal action can lead to annulment of the decision, but it is rare. Prevention is better than cure.

Further reading: related case law and developments

The decision of 8 June 2017 is part of consistent case law of the Court of Cassation. Already, in a judgment of 18 December 2002 (No. 01-03.076), the Court held that the GM's refusal to authorise a change of use was not abusive in itself, even if the by-laws allowed it. In 2017, it specifies that judges cannot substitute their assessment for that of the GM on the advisability of the change. Another decision of 14 November 2019 (No. 18-23.476) confirms that the GM decision binds everyone, except in cases of clear abuse, and that the absence of disturbance is not a criterion for annulling a refusal.

The trend of the courts is therefore clear: the GM is sovereign to authorise or refuse a change of use, subject only to the control of abuse of majority. This means that co-owners must be cautious: a systematic refusal not motivated by the collective interest may be challenged, but the burden of proof is heavy. For the future, one can expect judges to be even stricter on the characterisation of abuse. Co-ownerships that refuse a change without valid reason (e.g., out of mere hostility) could see their decision annulled, but it still must be proved.

Key points to remember

FAQ:

• Can I change the use of my unit without the GM's agreement? No, it is impossible. A change of use requires a GM decision by a double majority (Article 26 of the 1965 Law). If the GM refuses, you must comply, unless you prove an abuse of majority.
• What if the GM refuses even though my project complies with the by-laws? You cannot override. The refusal is not abusive solely because the project complies with the by-laws. You must show that the opponents acted solely in their personal interest, for example by preventing you from letting to avoid competition.
• What is the deadline to challenge a GM decision? Two months from notification of the GM minutes. After this period, the decision is final and binds everyone.
• How much does a legal action for abuse of majority cost? Lawyer fees vary, but expect between €2,000 and €5,000 for a first instance, plus possible expert fees. If you win, costs may be borne by the co-ownership. But the risk of losing is real: it is better to try negotiation first.
• Can I sell my unit with an unauthorised change of use? Yes, you can sell, but you must inform the buyer of the actual use and the lack of authorisation. The buyer will not be able to use the unit otherwise than in accordance with the original use, unless he obtains the GM's agreement himself. This may reduce the property's value.

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