Apportionment of Service Charges in Co-ownership: When an Error in Shares Becomes a Dispute (Civ. 3e, 30 June 1998)

Imagine: you own a flat in Saint-Paul-lès-Dax, in a quiet co-ownership. One day you receive your service charges and notice that your neighbour, whose unit is smaller than yours, is nevertheless paying more than you. Intrigued, you check the co-ownership regulations and discover that the shares (i.e., the thousandths of common parts) have been swapped between two units. You are unit 508 (366/100,000ths) and your neighbour unit 509 (331/100,000ths), but you pay less. You think: "That's a mistake, I'll ask the court to correct it." But be careful: it's not that simple.

The question every co-owner facing such an anomaly asks is: can I have this clause in the co-ownership regulations annulled on the ground of error? The answer of the Cour de cassation, in a judgment of 30 June 1998, is a model of legal rigour. It reminds us that to allege the illegality of a clause apportioning service charges, it is not enough to prove that there is a material error; it must be shown how the current apportionment is contrary to the legal criteria of Article 10 of the Act of 10 July 1965 (which lays down the rules for apportioning service charges).

This decision has concrete implications for co-owners, particularly in the jurisdictions of Mont-de-Marsan, where I regularly practise. Whether you are in Capbreton, Saint-Paul-lès-Dax or elsewhere, understanding this case law will save you many disappointments. So, how should you react to an error in shares? And what should you do if your co-ownership is affected? Follow the guide.

The facts: a story like many that happen every day

In this case, it all starts with a simple inversion. Mr X, owner of a unit in a building, notices that the co-ownership regulations attribute to unit no. 509 shares which, in his opinion, should belong to unit no. 508. Concretely, unit 508 represents 366/100,000ths of the common parts but bears a lower proportion of service charges than unit 509, which represents only 331/100,000ths. For Mr X, it is obvious: there has been a clerical error in the regulations, and he asks the court to declare the clause non-existent (i.e., without effect).

The Court of Appeal agrees with him. It holds that the apportionment of shares of common parts is not challenged, but that because of a swap, the charges for the right-hand unit were attributed to the left-hand unit, and vice versa. It concludes that the apportionment is not proportional to the values of the private parts (the units themselves) and that the claim is based on Article 10 of the Act of 1965, which requires that charges be apportioned according to the utility of each unit. In other words, for the Court of Appeal, the error alone justifies the annulment.

But the Cour de cassation disagrees. It quashes the appellate decision, holding that the lower court did not provide a legal basis for its decision. Indeed, to declare a clause non-existent, it is not enough to note an error; it must also be shown how the resulting apportionment is contrary to the legal criteria of Article 10. In other words, the error must lead to a violation of the law, not merely a material inaccuracy. This is a crucial point for all co-owners.

The reasoning of the court — analysed

To understand properly, we must go back to the texts. Article 12 of the Act of 10 July 1965 provides that clauses in the co-ownership regulations may be declared non-existent if they are contrary to the law. Article 10 of the same Act sets out the criteria for apportioning service charges: general charges (maintenance of common parts, etc.) are apportioned proportionally to the relative values of the units (shares), while special charges (lift, heating, etc.) are apportioned according to the utility of each unit.

In this case, the Court of Appeal had considered that the error in attribution made the apportionment non-proportional to the values of the private parts. But the Cour de cassation criticises it for not having verified whether, despite the error, the apportionment complied with the criteria of Article 10. Perhaps, even with the error, the apportionment was still fair? Perhaps the error did not change the balance? The lower court should have compared the actual apportionment with the one that should have been applied, and shown how the discrepancy was contrary to the law.

What few people know is that the Cour de cassation requires precise demonstration. It is not enough to say "it's an error, therefore it's illegal." It must be proved that the error results in a violation of legal rules. undefined that a co-owner challenging a clause must provide concrete evidence: for example, a calculation showing that unit 508 pays less than it should according to its real value, or that unit 509 pays more. Without such demonstration, the claim risks being dismissed.

What this changes for you — concretely

So, what should you take away from this judgment for your situation? If you are a co-owner in Capbreton or Saint-Paul-lès-Dax, and you discover an error in the shares of your co-ownership regulations, you cannot simply ask the court to correct it by invoking the error. You must demonstrate that this error results in an apportionment of charges contrary to the law.

For landlord owners (who rent out their property), the issue is financial: if you are the unit that pays too much, you lose money every year. Imagine a flat in Capbreton with annual service charges of €2,000. If the error makes you pay 10% too much, that's €200 per year. Over 10 years, that's €2,000. But be careful: if you challenge the clause without being able to prove the imbalance, you risk losing and having to pay the legal costs.

For buyers, this is a warning signal: before buying in a co-ownership, check the regulations and the charge demands. If you notice an anomaly, ask to see the breakdowns. A simple inversion can hide a deeper problem. undefined, I have come across cases where co-owners discovered that their unit had been undervalued for years, and they had paid excessively high charges without being able to recover them for lack of proof.

For tenants, even though you do not directly pay the co-ownership charges (they are included in the rent), an error can indirectly increase your rent if the landlord passes on the increase. Stay vigilant.

Four tips to avoid this type of dispute

• Keep all documents: co-ownership regulations, divisional descriptive statement, general meeting minutes, charge demands. Without these documents, it is impossible to prove the error.
• Make a comparative calculation: compare the shares attributed to each unit with the actual surface area or relative value. If you notice a discrepancy of more than 5%, seek advice from a surveyor or a lawyer.
• Act quickly: legal actions to challenge charges are subject to time limits (in particular the five-year limitation period – 5 years – from the discovery of the error). Do not delay.
• Prefer an amicable solution: before taking legal action, send a registered letter to the managing agent requesting correction of the error. Sometimes a simple correction is enough, without a trial.

Further reading: related case law and developments

The position of the Cour de cassation is consistent. In a judgment of 5 July 1995 (no. 93-15.211), it had already ruled that a drafting error in the co-ownership regulations is not sufficient to render them void; a violation of public policy or legal provisions must be demonstrated. More recently, in a judgment of 12 January 2017 (no. 15-23.234), the Court reiterated that the lower courts must verify whether the contested apportionment complies with the principle of equality among co-owners.

This trend shows that the courts are demanding on proof. The time when one could invoke a mere material error to modify charges is over. Now, a technical and legal demonstration is required. For co-owners, this means it is essential to be assisted by a professional (lawyer, accountant) as soon as suspicions arise.

In the future, we can expect judges to be even stricter, especially with the digitisation of co-ownership regulations which reduces material errors. But human errors remain, and case law continues to evolve.

Checklist before acting

FAQ:

• Can I challenge a clause apportioning service charges solely because it contains a numerical error? No, you must prove that the error makes the apportionment contrary to the law (Article 10 of the Act of 1965).
• What is the time limit to act? You have 5 years from the time you discovered the error (or should have discovered it).
• Do I have to go through a lawyer? Yes, for a legal action, a lawyer is mandatory before the judicial court.
• What are the risks if I lose? You will have to pay the legal costs (court fees) and possibly damages to the co-ownership if your action is abusive.

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