Condominium By-Laws: Can a Single Owner Challenge Their Validity?

You have just bought a flat in Bordeaux, in a condominium in the historic centre. Reading the by-laws, you discover a clause that prohibits you from letting your property furnished for short stays. Yet you were counting on this rental to repay your mortgage. What should you do? Wait for the next general meeting to try to amend the by-laws, or act alone in court?

Hundreds of owners ask themselves this question every year. Many think they must necessarily go through the co-owners' association to challenge a clause. Yet the Court of Cassation, in a landmark decision of 9 February 1982 (No. 80-11.710), clearly stated the opposite. Analysis.

In this article, we will see that each co-owner, bound to comply with the by-laws, is entitled to challenge their validity to ensure their conformity with mandatory legal provisions, without having to consult the general meeting beforehand. But beware: this action is not without conditions.

The facts: a story like many others

Mr X, owner of several lots (attics and mansards) in a condominium building in Bordeaux, had an ambitious project: to merge his lots, close off the corridor serving them, and raise the roof above these lots. To carry out this work, he considered that certain clauses of the by-laws were abusive or contrary to law. He therefore sued the co-owners' association and another co-owner, Mr Y, seeking a declaration that these clauses were void.

At the same time, Mr Y, who wished to sell his lots, complained that Mr X's actions (works, alterations) made the sale more difficult and sought damages. The Tribunal de grande instance of Bordeaux initially ruled in Mr X's favour on some points, but the Court of Appeal partially reversed that judgment. The case went up to the Court of Cassation.

The main legal issue was the admissibility of Mr X's action: could he, alone, challenge the by-laws, or did he need authorisation from the general meeting? The lower courts had held that he could not, that the association must be consulted. But the Court of Cassation quashed this decision.

The reasoning of the court — explained

The Court of Cassation relies on a simple principle: each owner is bound to comply with the provisions of the by-laws. Consequently, he has a legitimate interest in challenging the validity of those provisions if they appear to him contrary to public policy or to the prerogatives of the general meeting. In other words, since you must obey a rule, you must be able to challenge it.

The legal basis is Article 1240 of the Civil Code (formerly 1382), which requires reparation for damage caused by one's fault, but also the general principles of condominium law. The Court specifies that each lot includes a share of the common parts: it matters little whether the association is involved or not. And no legislative provision, nor any procedural rule, requires consultation of the general meeting prior to bringing such an action.

What few people know is that this decision was handed down at a time when the law on condominium ownership (Law of 10 July 1965) was still young. The Court wanted to protect co-owners against abusive by-laws. Since then, this case law has been consistently confirmed. In short, the Court said: 'You do not need to ask permission from the general meeting to challenge the by-laws. Your personal interest suffices.'

But beware: this action is not a blank cheque. The owner must demonstrate that the contested clause is illegal or abusive. It is not enough to say 'I don't like this clause'. You must prove that it violates a mandatory provision, for example a rule on common parts or on the rights of co-owners.

What this means for you — practically

If you are the owner of a lot in a condominium, you can now act alone to challenge a clause in the by-laws. For example, if the by-laws prohibit short-term furnished letting in your Bordeaux building, and that prohibition is not in accordance with the law (because the ALUR law of 2014 limited the possibilities of prohibition), you can bring proceedings before the Tribunal judiciaire of Bordeaux without having to convene a general meeting.

For tenants: you are not directly concerned, but you may be affected if your landlord is prevented from letting due to an abusive clause. You can encourage him to take action.

For landlord co-owners: if you let a property in Arcachon on a seasonal basis and the by-laws prohibit it, you can challenge that clause. In practice, I have come across cases where owners have succeeded and have been able to continue letting, generating several thousand euros of income per year.

For purchasers: before buying, ask to see the by-laws. If a clause seems problematic to you, know that you can challenge it after purchase. But it is better to do so beforehand, or to negotiate a condition precedent.

Time limits: an action to challenge a clause is time-barred after 5 years from the publication of the by-laws in the descriptive division statement (for clauses not conforming to the law). But if the clause is contrary to public policy, the limitation period is 5 years from its discovery. Beware: you must act quickly.

Four tips to avoid this type of dispute

• Read the by-laws carefully before buying. Do not rely solely on the technical survey. Get assistance from a lawyer specialising in property law in Bordeaux or elsewhere: €150 of advice can save you years of litigation.
• If you discover an abusive clause after purchase, do not delay in seeking advice. The limitation period is 5 years. undefined, I have seen owners lose their right to act because they waited too long.
• Before starting proceedings, check whether you can obtain mediation. Sometimes a simple registered letter to the managing agent is enough to have the clause removed amicably. Mediation costs less than a lawsuit.
• Keep all evidence. Correspondence with the managing agent, minutes of general meetings, photographs of the premises. Everything can be used to demonstrate your interest in acting and the harm suffered.

Further reading: related case law and developments

The 1982 decision was confirmed by a ruling of the Court of Cassation of 6 July 2016 (No. 15-18.755), which reiterated that a co-owner can challenge a clause without authorisation from the general meeting, even if the clause was adopted unanimously. However, the Court specified that the action must be brought against the co-owners' association, represented by the managing agent.

Another important decision is that of the Court of Cassation of 22 October 2020 (No. 19-16.247), which held that a co-owner can also seek the nullity of a resolution of the general meeting that is contrary to the by-laws or the law. This jurisprudential trend shows that the courts are increasingly protective of the individual rights of co-owners.

For the future, we can expect judges to continue to expand the possibility for a co-owner to act alone, particularly with the proliferation of disputes relating to seasonal rentals (Airbnb) and energy renovation works.

Summary and next steps

Here is a checklist of what to do if you want to challenge a clause in the condominium by-laws:

1. Identify the problematic clause: note its number and exact content.
2. Check its legality: consult a lawyer to see if it is contrary to a mandatory provision (Law of 1965, Building Code, etc.).
3. Gather evidence: copy of the by-laws, correspondence, proof of your loss (e.g., loss of rent).
4. Put the managing agent on notice: send a registered letter requesting an amicable modification of the clause.
5. Sue the co-owners' association if the notice remains unanswered within 2 months. You can act alone, but legal assistance is strongly recommended.

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 →