Apportionment of Service Charges in Condominiums: When a Change of Use of a Unit Allows Everything to Be Changed

Imagine: you own a flat in Nice, on the fourth floor of a beautiful Belle Époque building. You have always rented it out as a dwelling, in accordance with the condominium regulations. But one day, your neighbour downstairs converts his unit into a medical practice. Suddenly, your water and lift charges skyrocket. Your share (your proportion of the charges) was calculated on the basis of residential use. That neighbour, on the other hand, pays less than he should, because his new patients use the lift and sanitary facilities much more than you do. You wonder: can this unfair apportionment be reviewed? The answer was given by the Court of Cassation in a judgment of 1 October 2014, which may surprise you.

The question every co-owner asks is simple: when a unit changes its use — for example, from residential to professional use — can the general meeting (GM) modify the apportionment key for charges relating to collective services (such as water, electricity for common parts, the lift)? The Court of Cassation answers in the affirmative, even if the new use was already permitted by the condominium regulations. In short, just because the regulations allow an activity does not mean that the charges must remain fixed. A decision that changes the game for condominiums on the French Riviera, where changes of use are frequent, particularly in Beausoleil where many units are converted into tourist furnished lettings.

But what exactly does it change? Until now, some courts considered that if the condominium regulations already provided for the possibility of professional use, the apportionment of charges could not be modified afterwards. The Court of Cassation overturns this interpretation: Article 25(f) of the Law of 10 July 1965 allows the apportionment to be modified as soon as there is an effective change of use, regardless of whether that use is authorised by the regulations. In other words, it is the actual use that counts, not what is written in the regulations. For Nice property owners, this is a powerful legal weapon to restore fairness.

The facts: a story that happens every day

Mr X, owner of a unit in Nice, has been renting out his flat as short-term furnished accommodation (Airbnb-type) for several years. The condominium regulations of his building, located in the Buffa district, stipulate that units may be used for residential or liberal professional purposes (doctors, lawyers…). Mr X, however, uses his unit for seasonal rentals, which is not explicitly prohibited by the regulations. But his neighbours complain: the lift is constantly congested with tourists' suitcases, hot water is used at all hours, and the general charges increase. The syndic (the condominium manager) then proposes at the general meeting to modify the apportionment of water and lift charges, applying a higher coefficient to units used for tourist rentals. The resolution is passed by the majority required under Article 25 (absolute majority of votes of all co-owners). Mr X challenges this decision before the court.

At first instance, the Tribunal de Grande Instance of Nice rules in favour of Mr X: it considers that since the condominium regulations authorise furnished rentals, the change of use is not established, and therefore the modification of charges is illegal. The condominium appeals. The Court of Appeal of Aix-en-Provence upholds the judgment, adding that Article 25(f) can only apply if the new use is contrary to the regulations. In other words, according to the Aix judges, if the regulations allow the activity, the general meeting cannot take advantage of this to increase the charges on that unit. The condominium appeals to the Court of Cassation (challenging the decision before the highest judicial court).

The Court of Cassation quashes (annuls) the Court of Appeal's judgment and refers the case to another Court of Appeal, in Lyon. Its reasoning: Article 25(f) of the 1965 law does not make its application conditional on the lawfulness of the new use under the condominium regulations. What matters is the effective change of use, i.e., the transition from one use to another, observed in fact. It is irrelevant whether this new use is authorised by the regulations or not. In this case, Mr X's unit was initially intended for residential use (rented to long-term residents), then converted into tourist accommodation: there is indeed a change of use. Consequently, the general meeting could legitimately modify the apportionment of charges for common facilities (water, lift) to take account of this new use. A victory for the condominium, but a warning for owners who change the use of their unit without measuring the consequences.

The court's reasoning — analysed

The Court of Cassation relies on Article 25(f) of Law No. 65-557 of 10 July 1965. This provision allows the general meeting of co-owners to modify, by an absolute majority (majority of all co-owners, present or represented, regardless of the number of votes), the apportionment of charges incurred by collective services and common equipment items (such as the lift, central heating, hot water, etc.) when such modification is made necessary by a change of use of one or more private units. In other words, if a co-owner begins to use his flat in a way that increases the consumption of a collective service, the GM can readjust the shares so that everyone pays according to their actual use.

In this case, the difficulty arose from the fact that the condominium regulations already authorised professional use and furnished rentals. The Court of Appeal of Aix-en-Provence had held that if the regulations provide for the use, then there is no 'change' within the meaning of the law. But the Court of Cassation sweeps away this interpretation: Article 25(f) does not refer to the condominium regulations. It only refers to the effective change of use, i.e., the transition from one use to another, observed in fact. It does not matter whether the new use is compliant with the regulations or not. What counts is the real impact on collective charges. In short, the Court affirms that the right to a fair apportionment of charges takes precedence over compliance with the regulations. A position that strengthens the power of the general meeting, but may surprise co-owners who thought they were protected by their regulations.

However, note: the modification must be 'made necessary' by the change of use. In other words, it must be demonstrated that the new use leads to an increase in charges for the other co-owners. In our Nice example, tourist use generates more lift traffic and more water consumption. The condominium was therefore able to prove the necessity. If the change of use has no measurable impact, the modification could be challenged. What few people know is that this decision is part of a broader trend by the courts to favour fairness over the letter of the regulations. undefined, I have come across cases where co-owners in Beausoleil had converted their garage into a rental studio: the 2014 judgment allowed the rebalancing of water and electricity charges that were unfairly burdening other residents.

What this means for you — in practice

For the landlord owner: If you rent out your unit as tourist furnished accommodation in Nice or Beausoleil, know that the general meeting can increase your share of charges for common facilities. For example, if your unit was previously a family flat and you convert it into seasonal rental, expect an increase in water and lift charges. In a building I managed in Nice, the owner of a two-room flat saw his charges rise from €800 to €1,400 per year after a GM vote. If you are in this situation, you must anticipate: build in a margin in your budget or negotiate with the syndic to assess the impact before the vote.

For the unaffected co-owner: Are you suffering from an increase in general charges because of a neighbour who has changed the use of his unit? You can ask the syndic to include on the agenda of the next GM a resolution modifying the apportionment of the relevant charges. Note: this resolution must be adopted by the majority under Article 25 (majority of votes of all co-owners). If it is rejected, you can apply to the judicial court to have the change of use established and request a new apportionment. In a condominium in Beausoleil, residents succeeded after proving that the unit converted into tourist accommodation generated 30% more lift journeys.

For the buyer: Before buying a unit in a condominium, check the actual use of neighbouring units. If several units are used for activities that generate charges (tourist rentals, liberal professions, etc.), charges could be revised upwards for those units, but also for others if a rebalancing is voted. Ask the seller for the history of charges over 3 years and the GM minutes. A tip: if you buy a unit to rent it out as furnished, include in your financing plan a possible increase in charges of 20 to 40%.

For the tenant: Are you renting a flat in Nice and your landlord announces an increase in charges? Check whether this increase is linked to a change of use of your unit or another unit. As a tenant, you are not a party to the GM, but you can ask the landlord to justify the amount of recoverable charges. If the increase is excessive, contact a lawyer specialising in property law.

Four tips to avoid this type of dispute

• Check the condominium regulations before any change of use. Even if they authorise the planned activity, know that the GM may modify your charges. Find out about previous GM votes concerning equipment charges. For example, if you want to convert your garage into a rental studio in Beausoleil, consult the syndic to know the position of the other co-owners.
• Anticipate the impact on charges. Before modifying the use of your unit, estimate the likely increase in charges. For example, for tourist rental, expect 50 to 100% additional charges for water and lift. Include this extra cost in your rental profitability.
• If you are a co-owner suffering from a change of use, act quickly. Ask the syndic to include a resolution on the agenda of the next GM. Provide concrete evidence: photos of traffic, consumption readings, testimonies from other co-owners. If the GM refuses, you have 2 months to challenge the decision before the judicial court.
• When acquiring, have a charges audit carried out. A lawyer or accountant can analyse the last 5 years of charges and GM minutes to detect any future changes of use. This will avoid nasty surprises.

Further reading: related case law and developments

This judgment is part of a line of decisions favouring a flexible interpretation of Article 25(f). Already in 2008, the Court of Cassation had ruled (Civ. 3e, 11 June 2008, No. 07-14.931) that a change of use could result from a simple modification of actual use, without the need for the new use to be prohibited by the regulations. The 2014 judgment confirms and clarifies this point, setting aside any obstacle related to the regulations. Since then, the lower courts (Courts of Appeal) have followed this path: thus, the Paris Court of Appeal applied the same solution in 2016 for a premises converted into a gym (CA Paris, 9 June 2016, No. 15/10234).

However, note: the modification of charges must be 'made necessary' by the change of use. Case law requires that the causal link be demonstrated. If the change of use does not lead to a measurable increase in charges, the resolution could be annulled. For example, if a unit changes from residential to an office without clients (teleworking), the impact on the lift is nil. In that case, the modification would be challengeable. The current trend is therefore to strengthen the power of the GM, but with judicial control over the necessity of the modification. For condominiums on the French Riviera, where changes of use are frequent (seasonal rentals, liberal professions), this judgment provides a solid basis for rebalancing charges. However, do not expect an automatic modification: the GM must vote, and co-owners can challenge if the proof of necessity is not provided.

Key points to remember

FAQ:

• Can I challenge a modification of charges decided at the GM after a change of use of my unit? Yes, if you consider that the modification is not justified by an increase in collective charges. You must act within two months of notification of the GM minutes.
• What if my neighbour converts his flat into tourist accommodation and my charges increase? Ask the syndic to include a resolution on the agenda of the next GM to modify the apportionment of charges for common facilities. Provide evidence of the impact (photos, readings).
• Do the condominium regulations prohibit any modification of charges? No. Article 25(f) of the 1965 law takes precedence over the regulations. Even if the regulations authorise the use, the GM can modify the charges if the effective use changes.
• What are the time limits for challenging a GM decision on this ground? You have a period of two months from notification of the minutes of the general meeting to apply to the judicial court.
• Does this decision apply to general charges (maintenance, cleaning)? Yes, but only for charges incurred by collective services and common equipment (water, lift, central heating, etc.). General condominium charges (insurance, syndic fees) are not concerned.

Checklist for action: 1) Check whether your unit or a neighbour's unit has changed use. 2) Gather evidence of the impact on charges (bills, meters, testimonies). 3) Ask the syndic to include the issue on the GM agenda. 4) Vote or have the resolution passed by the majority under Article 25. 5) If refused, challenge before the court within two months.

Are you in a similar situation? A 30-minute initial consultation with Maître Zakine (€45) can save you months of legal proceedings — and often much more. Book an appointment →