Distribution of Service Charges in Condominiums: Can It Be Modified Without Unanimity?

Imagine for a moment: you own a flat in Mougins, in a residence built in the 1970s. Tired of soaring collective heating bills, you decide to install individual heating. You think you will no longer have to pay those charges, but the managing agent continues to demand your share. Unfair, isn't it? That is exactly the scenario that played out in the case decided by the French Supreme Court (Cour de cassation) on 13 May 1980.

This decision, although over forty years old, remains an absolute reference in French condominium law. It answers a crucial question: can the distribution of service charges set out in the condominium regulations be modified unilaterally? The answer is no, except in certain circumstances. In other words, a co-owner cannot unilaterally decide to stop paying certain charges, even if they have changed their equipment.

But then, how can the charges be adapted to a new situation? Is the agreement of all co-owners required? Or a court decision? This article analyses this landmark decision and gives you the keys to avoid pitfalls. You will see that the solution lies with the general meeting or, failing that, with the court.

The facts: a story that happens every day

We are in a condominium called Résidence La Fontaine. A co-owner, whom we will call Mrs L., is seriously ill. She alerts the managing agent several times: the collective heating system does not suit her, she must install individual heating for medical reasons. She does so without first seeking authorisation from the general meeting.

The managing agent, for its part, continues to demand Mrs L.'s share of the collective heating charges. Mrs L. refuses to pay, arguing that she no longer uses the central heating. The condominium then sues her for payment of the unpaid charges. The Tribunal de grande instance (TGI, now Tribunal judiciaire) rules in favour of Mrs L., holding that the distribution of charges must be adapted to actual use.

But the condominium does not give up. It appeals to the Cour de cassation. The case goes all the way to the Supreme Court, which quashes the judgment. For the High Court, the TGI violated Article 11 of the Law of 10 July 1965. In short, until the general meeting (AG) or a court modifies the distribution of charges, Mrs L. must pay the collective heating charges, even if she has her own heating. A real twist!

The court's reasoning — analysed

The Cour de cassation relies on Article 11 of the Law of 10 July 1965. This text is the cornerstone of French condominium law. It provides that the distribution of charges set out in the condominium regulations (the document that organises the life of the building) can only be modified by unanimous consent of the co-owners. Why such strictness? Because the allocation key (tantièmes) determines each owner's contribution to common expenses. To change it is to affect the financial balance of the condominium.

However, the law provides for two exceptions, which the Court recalls. First exception: if works (for example, the installation of a collective heating system) are voted by the required majority (often the majority under Article 26, i.e., two-thirds of the votes), the modification of the distribution of charges necessary for those works can be adopted by the same majority. Second exception: in the absence of a decision by the general meeting, any co-owner may apply to the Tribunal judiciaire (formerly TGI) to obtain a new distribution where necessary.

In this case, the TGI had dismissed the condominium's claim for payment, without establishing that the distribution of charges had been modified by the general meeting or by a court decision. The Cour de cassation censures this reasoning: the judge cannot, on his own, modify the distribution. He must first check whether a general meeting has ruled or whether a co-owner has applied to the court. In short, Mrs L.'s individual decision to switch to individual heating does not exonerate her from her charges as long as the community has not recorded the change.

What few people know is that this decision has been consistently applied since 1980. It has been confirmed by many subsequent decisions. The Cour de cassation thus protects the stability of condominium budgets. However, note that this rule applies to general charges, but there are nuances for special charges (lift, hot water, etc.).

What this means for you — practically

If you are a co-owner: you cannot decide alone to stop paying a charge, even if you no longer use the service. For example, if you remove your radiator in a condominium with collective heating in Grasse, you remain liable for the heating charges. To change the distribution, you must obtain a decision from the general meeting (majority required depending on the type of modification) or, if that fails, apply to the court.

If you are a landlord: be vigilant. If your tenant installs individual heating without authorisation, you could be sued by the managing agent for non-payment of charges. undefined, I have come across cases where the landlord had to pay years of arrears after the tenant changed the heating system.

If you are a buyer: before purchasing a property, check the condominium regulations. Some lots have overvalued tantièmes compared to their use. If you are considering works that modify the distribution of charges (such as installing individual heating), include a clause in the sale deed requiring the seller to obtain the agreement of the general meeting.

Example with figures: in Mougins, a condominium of 20 lots with collective heating. A co-owner installs an individual heat pump. The collective heating charges amount to €10,000 per year. His share is €500. If he refuses to pay, the managing agent can claim arrears for 5 years, i.e., €2,500, plus legal costs. Modifying the distribution by the general meeting would cost a few hundred euros in notary or legal fees, far less than a lawsuit.

Four tips to avoid this type of dispute

• Before carrying out works that modify the use of a collective facility, consult the managing agent and the general meeting. Ask for a resolution to be included on the agenda to obtain authorisation and, if necessary, the modification of the distribution of charges.
• If you install individual heating, have a bailiff record the non-use of the collective heating. This can serve as evidence if you need to apply to the court to modify the distribution.
• If the general meeting refuses to modify the distribution, do not wait: apply to the Tribunal judiciaire (formerly TGI) within 5 years. The judge can order a new distribution if it is made necessary by new circumstances (change of use, works, etc.).
• For managing agents: update the condominium regulations after each modification of distribution voted at the general meeting. Ensure that the calls for charges correspond to the current allocation key, to avoid disputes.

Further analysis: related case law and developments

The 1980 decision has been confirmed many times. For example, in a decision of 3 November 1988 (n° 87-12.100), the Cour de cassation held that the modification of the distribution of charges to take account of the installation of a lift had to be voted unanimously, unless it was necessary for works voted by the majority. Another example: a decision of 9 July 2008 (n° 07-15.682) specified that the removal of a collective service (such as heating) requires a unanimous decision to modify the distribution of charges.

The courts therefore tend to be very protective of the stability of allocation keys. However, since the ALUR Law of 2014, the legislator has relaxed certain rules. For example, the installation of individual hot water meters can be decided by a simple majority, and the distribution of water charges can then be modified by the same majority. But for heating, the 1980 rule still applies. In practice, the courts are increasingly open to an individual action by the aggrieved co-owner, especially if the general meeting improperly refuses to modify the distribution.

Summary and next steps

FAQ:

• Can I refuse to pay collective heating charges if I have installed individual heating? No, as long as the distribution of charges has not been modified by the general meeting or by a court. You must continue to pay, then take legal action to obtain a refund of any overpaid amounts.
• How can I get the distribution of charges modified? You must first ask for a resolution to be included on the agenda of the general meeting. If the required majority is not achieved, you can apply to the Tribunal judiciaire.
• What majority is required to modify the distribution of charges? In principle, unanimity. But if the modification is necessary for works voted by the majority under Article 26 (two-thirds of votes), that majority is sufficient.
• What is the time limit to take legal action? You have 5 years from the triggering event (e.g., installation of individual heating) to request a modification of the distribution. After that, you may be time-barred.
• What if the managing agent refuses to convene a general meeting on this issue? You can apply to the president of the Tribunal judiciaire in summary proceedings to obtain the appointment of an ad hoc representative who will convene the general meeting.

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