Reference decision: cc • N° 11-25.476 • 2012-11-28 • See the decision →
Imagine: you own a flat in Le Cannet, in a residence with services. One day, the general meeting of co-owners votes to enter into a contract with a service company for paramedical services, basic services and optional personalised services. Some co-owners object, arguing that this contract modifies the by-laws and requires a reinforced majority (Article 26 of the Act of 10 July 1965). The question that arises is crucial: what majority is required to adopt such a resolution?
This decision of the French Supreme Court of 28 November 2012 (No. 11-25.476) provides a clear answer: as long as the by-laws are not modified in their provisions relating to the enjoyment, use and management of the common parts, a simple majority or that of Articles 24 or 25 is sufficient. But what does that actually change for you, a co-owner in Grasse or elsewhere?
In this article, we will dissect this case, understand the judges' reasoning, and see how to apply it practically to avoid disputes. Because, in my practice as a solicitor specialising in property law, I have come across cases where a simple misunderstanding of the majority rules has led to deadlock and unnecessary costs.
The facts: a story like many others
The case begins in a residence with services, typical of what you find in Grasse or Le Cannet. The by-laws already provide for a services contract distinguishing between services benefiting all co-owners (security, maintenance of green spaces) and paramedical services, reserving certain common parts for these services. The general meeting approves the conclusion of a new contract with a service company, which distinguishes three categories: basic services, optional personalised services, and services benefiting all residents.
Several co-owners challenge this resolution. They argue that this contract modifies the by-laws, as it affects the purpose of the private parts and the apportionment of service charges. According to them, such a decision should have been taken by a two-thirds majority (Article 26 of the 1965 Act). The co-owners' association, for its part, argues that this is simply the performance of the existing by-laws, which already provide for this type of service.
The dispute goes all the way to the French Supreme Court. The objecting co-owners, whom we will call Mr X and Mrs Y, owners in Le Cannet, argue that the budgets in question have nothing to do with the payment of service charges according to the general shares. They argue that the classification of service charges under Article 10 of the 1965 Act would be disrupted, and that the purpose of the private parts would be modified. But the Court does not follow them.
Plot twist: the French Supreme Court quashes the judgment of the Court of Appeal which had annulled the resolution. It considers that the lower court judges did not characterise how the contract modified the by-laws. In short, as long as the by-laws remain unchanged as to the enjoyment, use and management of the common parts, the general meeting may validly approve such a contract by the majority provided for in the by-laws (often the majority under Article 24 or 25).
The reasoning of the court — dissected
The French Supreme Court relies on Article 26 of Act No. 65-557 of 10 July 1965, which requires a two-thirds majority (or reinforced majority) for any decision modifying the by-laws, particularly with regard to the enjoyment, use and management of the common parts. In other words, if the services contract does not change these aspects, a simple majority (Article 24) or an absolute majority (Article 25) suffices.
The judges recall that the by-laws already included a services contract distinguishing between collective and paramedical services. The new contract merely specified the categories of services (basic, optional personalised, collective) without modifying the apportionment of service charges or the use of the common parts. However, note: if the contract had imposed new charges or modified the use of the private parts, the reinforced majority would have been necessary.
The Court dismisses the co-owners' argument that the budgets in question concerned personal charges and not common charges. It recalls that security costs, for example, form part of the general charges, and that the contract does not create a new category of charges. What few people know is that the distinction between general charges and special charges (Article 10) can be confusing. Here, the Court clarifies that the mere existence of optional services does not transform common charges into personal charges.
Finally, the French Supreme Court criticises the Court of Appeal for not sufficiently justifying its decision. It requires that the lower courts demonstrate concretely how the contract modifies the by-laws. This is a confirmation of consistent case law: the by-laws are the law of the parties, and only an express modification of them requires a reinforced majority.
What this changes for you — practically
For landlord co-owners in Grasse, this decision means that you can, at the general meeting, vote to subscribe to additional services (such as paramedical care or concierge services) without fear of annulment, provided that the by-laws already provide for this type of service. Concrete example: in a residence in Grasse, if the by-laws mention security services, the meeting may choose a new provider by a simple majority, even if that provider offers personalised options as well.
If you are a buyer, always check the by-laws before buying. In Le Cannet, a property in a residence with services may see its service charges vary depending on the contracts voted on. Do not rely solely on the current amount of service charges: find out about the possibility for the meeting to enter into new services without your individual consent.
For owner-occupier co-owners, you should know that if the services contract modifies the purpose of your private part (for example, by requiring access to your flat for care), then a reinforced majority is required. But for collective services, you cannot object individually. If you are in this situation, you should check the minutes of the general meeting and, if in doubt, consult a solicitor specialising in this area within 2 months of notification.
Caution: if the contract creates personal charges (for example, paramedical services billed individually), this does not modify the by-laws. These charges are then apportioned according to the general shares if they are common, or directly billed to the user if they are personal. undefined, I have seen disputes where co-owners refused to pay for optional services, even though they had been voted on by a simple majority and were apportioned according to the shares. Case law rules against them, unless the by-laws expressly prohibit these services.
Four tips to avoid this type of dispute
- Read the by-laws before buying or voting. Identify the clauses on services, service charges, and the use of common parts. In Le Cannet, well-drafted by-laws will save you surprises.
- Check the applicable majority before each vote. Ask the managing agent to clarify whether the decision modifies the by-laws. If it only concerns performance, a simple majority suffices.
- Keep the minutes of general meetings. They are evidence in case of a challenge. A co-owner in Grasse who challenged a services contract two years later was unsuccessful for lack of proof.
- Consult a solicitor as soon as you have doubts. A 30-minute consultation can save you a long and costly procedure. In property law, time works against you: challenge periods are often 2 months.
Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.
Further details: related case law and developments
This decision is part of a line of French Supreme Court cases that strictly distinguish between performance of the by-laws and their modification. In an earlier judgment of 12 January 2011 (No. 09-71.605), the Court had already held that a decision to no longer provide a service provided for in the by-laws (such as security) required a reinforced majority, because it modified the use of the common parts. Here, on the contrary, the addition of optional services does not modify the by-laws.
The tendency of the courts is therefore to protect the contractual freedom of co-owners in general meeting, as long as the initial framework of the by-laws is respected. However, note: some Courts of Appeal are stricter and require that the contract comply with the purpose of the building. For the future, if you wish to introduce innovative services (such as shared teleworking), it is better to modify the by-laws by a reinforced majority to avoid any challenge.
Key points to remember
FAQ:
Q: Can I challenge a services contract voted by a simple majority?
A: Only if the contract modifies the by-laws regarding the enjoyment, use or management of the common parts. Otherwise, the vote is valid.
Q: What if the contract creates new charges?
A: If these charges are common (collective services), they are apportioned according to the shares. If they are personal (optional), they are billed to the user. In both cases, a simple majority suffices if the by-laws allow it.
Q: What are the time limits for acting?
A: 2 months from the notification of the minutes of the general meeting to challenge a resolution. After this period, the decision becomes final.
Q: Can a co-owner refuse to pay their share of the collective services?
A: No, if the contract was regularly voted and the services are provided for in the by-laws. The managing agent can initiate recovery proceedings.
Q: How do I know if the contract modifies the by-laws?
A: Compare the new contract with the clauses of the by-laws. If the common parts are used identically and the service charges remain apportioned according to the shares, there is no modification.
Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →
