Reference Decision: cc • No. 02-14.670 • 2004-04-07 • View the decision →
You are the owner of a flat in Mandelieu, and each month you pay co-ownership charges that increase. But what if your lot was simply a right to excavate under the building, without any premises? Could you decide one day that you no longer have to pay, since you are not using anything? This is exactly the question that the Court of Cassation decided on 7 April 2004. And the answer is clear: no. The co-ownership by-laws are a contract. You cannot exit it alone. Analysis of this decision which concerns many co-ownerships on the Côte d'Azur.
The Facts: A Story Like Many Others
Imagine a co-ownership in Cannes, with classic lots (flats, cellars) and one particular lot: a right to excavate (i.e., the right to dig and use the subsoil). The owner of this lot, a company (let's call it SNC), considered that since its lot no longer had any real utility, it should no longer pay the corresponding co-ownership charges. It therefore stopped paying. The syndicate of co-owners sued it for payment of the unpaid charges. Before the Court of Appeal, SNC lost: it was ordered to pay. It then appealed to the Court of Cassation. Its main argument? The co-ownership by-laws provided for an allocation of charges based on shares (fractions of co-ownership). However, according to it, since the lot could no longer receive the intended use (for example, no further construction possible in the subsoil), the allocation clause was "deemed unwritten", and therefore it no longer had to pay. But the Court of Cassation did not follow this reasoning.
The Reasoning of the Court — Analysed
The Court of Cassation upheld the Court of Appeal. It recalls a fundamental principle: the co-ownership by-laws are contractual in nature (they are a contract between all co-owners). Consequently, a co-owner cannot unilaterally (alone) free themselves from their obligations without the agreement of the others. In other words, if the by-laws require you to pay charges, you must pay them, even if your lot has become useless or different. The only way to modify this obligation is by a decision of the general meeting of co-owners, taken by the majority under article 26(a) of the Law of 10 July 1965 (majority of the members of the syndicate representing at least two-thirds of the votes). In clear terms, SNC could not decide alone to stop paying. It first had to request a modification of the by-laws at a general meeting. The Court also specifies that the syndicate cannot proceed with a real estate acquisition (for example, buying back the lot) without a decision of the general meeting. Therefore, no solution outside the collective framework.
What few people know is that this decision confirms constant case law: the co-ownership by-laws are the law of the parties. One cannot derogate from them individually. However, attention: if the allocation of charges becomes manifestly abusive or contrary to public policy, it could be contested. But here, the mere uselessness of the lot is not sufficient.
What This Changes for You — Practically
If you are the owner of a parking space in Mandelieu, and you no longer use it, you cannot stop paying the co-ownership charges allocated to it. Similarly, if you are a co-owner of a commercial property in Cannes that has lost value, you must continue to contribute to the common charges. This decision protects the other co-owners: without it, some could evade their obligations, which would place a heavier burden on the others.
undefined, I have encountered cases where an owner of a flooded cellar considered that they should not have to pay charges. The case law is constant: as long as the by-laws are not modified, you pay. If you are in this situation, you must either request a modification of the by-laws at a general meeting (enhanced majority), or consider selling your lot. Unpaid charges can lead to penalties and legal action. For example, for a lot with annual charges of €1,200, three years of arrears represent €3,600, plus legal costs.
Four Tips to Avoid This Type of Dispute
- Read your co-ownership by-laws carefully before buying. If a lot is atypical (right to excavate, cellar, parking), find out about the charges allocated to it. Do not rely on future non-use to free yourself.
- If your lot becomes unusable, act collectively. Convene a general meeting to propose a modification of the allocation of charges or a transfer of the lot to the syndicate. The majority under article 26 is demanding, but it is the only legal route.
- Never stop paying unilaterally. Even if you believe the charges are unfair, continue to pay under protest. Then, take legal action to contest the allocation. Stopping payment exposes you to proceedings and additional costs.
- Consult a lawyer lawyer at the first sign of difficulty. Early advice can avoid a judgment for unpaid charges plus surcharges. In Cannes or Mandelieu, Maître Zakine can help you analyse your situation.
Further Reading: Related Case Law and Developments
This 2004 decision is part of a consistent line. Already in 1999, the Court of Cassation had ruled that the co-ownership by-laws are binding (Civ. 3e, 10 March 1999). More recently, it recalled that modification of charges requires unanimity or the majority under article 26 depending on the case (Civ. 3e, 12 September 2019). The trend is therefore clear: no individual freedom against the collective contract. For the future, the ALUR Law of 2014 strengthened the powers of the general meeting, but the principle remains the same. One cannot free oneself alone from the by-laws.
Summary and Next Steps
FAQ:
- Can I stop paying charges if my lot is unusable? No, as long as the by-laws are not modified by the general meeting.
- What should I do if I want to free myself from my lot? Propose its sale to the syndicate or to a third party, or request a modification of the by-laws.
- What is the time limit to contest an allocation of charges? You have 5 years from the decision of the general meeting that set it.
- Can I obtain a reduction in charges if my lot has become worthless? Only a court decision or a vote at a general meeting can modify the allocation.
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