Reference decision: cc • No. 98-10.924 • 1999-10-06 • View the decision →
Imagine: you live in Mimizan, in a quiet co-ownership residence. An owner decides to divide his unit into five flats. But who pays what for the special common charges (lift, central heating)? The question can quickly become a headache.
What to do if the general meeting has not voted on the apportionment? Can you go directly to the judge? The Court of Cassation ruled in 1999: it is premature to bring the matter before the court until the general meeting has been consulted. A decision that has direct consequences for co-owners in Saint-Vincent-de-Tyrosse and elsewhere.
In this article, we analyse the judgment of 6 October 1999 (No. 98-10.924) and explain how to act to avoid a deadlock.
The facts: a story that happens every day
Mr X, owner of a large unit in a co-ownership in Mimizan, decides to divide his unit into five separate units. Each new unit is allocated a share of the common parts. However, for special common charges (e.g., maintenance of the swimming pool or entrance hall), no apportionment is provided for in the co-ownership regulations.
The general meeting of co-owners was not asked to vote on an apportionment key. Some dissatisfied co-owners bring the matter before the court to have it fix the apportionment itself. The Tribunal de Grande Instance of Mont-de-Marsan (the jurisdiction covering Mimizan) is seised.
The Court of Appeal of Pau, and then the Court of Cassation, are called upon to rule. The lower courts had ruled in favour of the applicant co-owners, but the Court of Cassation quashes the decision: the seising was premature, as the general meeting had not been consulted beforehand.
The reasoning of the court — explained
The Court of Cassation relies on Article 10 of the Law of 10 July 1965 (which defines co-ownership charges). It recalls that the apportionment of special common charges among units is a matter for the exclusive competence of the general meeting of co-owners. The judge cannot substitute himself for it.
In clear terms, the Court of Appeal should have noted that the general meeting had taken no decision on this apportionment. By itself fixing the apportionment keys, it exceeded its powers.
Beware, however: this is not a reversal of precedent, but a confirmation of a constant principle: the judge cannot make up for the failure of the general meeting. Co-owners must first vote at a general meeting. It is only in the event of a refusal or persistent disagreement that the judge may be seised, but only after a decision of the general meeting.
What few people know: in my practice, I have come across cases where co-owners went directly to court without going through the general meeting. Result: the proceedings are declared inadmissible, and they have to start all over again, with additional costs.
What this means for you — practically
For a co-owner in Saint-Vincent-de-Tyrosse who wishes to divide his unit: you must submit the apportionment of special charges to the general meeting. If you do not, the judge cannot help you.
For a buyer: before purchasing a unit resulting from a division, check that the general meeting has voted on an apportionment of charges. Otherwise, you risk having to pay an undetermined share, or facing litigation.
For a managing agent: you must include this question on the agenda of the general meeting. In the absence of a decision, the charges remain unpaid, which can block the co-ownership budget.
Concrete example: if the apportionment is not voted, the owner of the new unit may pay the same amount as before the division, which is unfair to the others. The general meeting must therefore fix a fair key.
Four tips to avoid this type of dispute
- Anticipate the division: before dividing a unit, provide a clause in the co-ownership regulations for special charges, or have a resolution voted at the general meeting.
- Put the question on the agenda: the managing agent must ensure that the apportionment of charges for the new units is submitted to the general meeting as soon as possible.
- Consult a lawyer before seising the judge: a premature seising may be rejected. Prior advice will save you unnecessary costs.
- Negotiate among co-owners: an amicable agreement, even informal, can facilitate the vote at the general meeting. But it must be formalised in a resolution.
Further reading: related case law and developments
The Court of Cassation has reaffirmed this principle in several subsequent judgments. For example, in a judgment of 12 May 2004 (No. 02-18.123), it held that the judge cannot fix the share of special charges without a prior decision of the general meeting.
The trend is therefore constant: the autonomy of the general meeting is protected. Courts cannot substitute themselves for it, except in cases of manifest failure (systematic refusal to vote).
For the future, this case law could evolve if the legislature intervenes to simplify divisions of units. But as it stands, the message is clear: go through the general meeting.
Checklist before acting
FAQ:
- Can I seise the judge if the general meeting has not voted on the apportionment? No, the seising will be declared premature. You must first request a vote at the general meeting.
- What if the general meeting refuses to vote? You can then seise the judge to have the refusal recorded and request a judicial apportionment.
- What are the time limits? The general meeting must meet at least once a year. If the question is not on the agenda, you can request an extraordinary general meeting.
- What costs? A premature seising can cost several thousand euros in lawyers' fees and court costs, without result.
- Can I challenge the apportionment voted by the general meeting? Yes, if it is abusive or disproportionate, within two months of the vote.
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