Apportionment of Service Charges in Commonhold: What to Do When the Regulations Are Silent?

Imagine: you have just bought a flat in Mandelieu, overlooking the sea. You receive your first service charge demands: the amount seems exorbitant, but you have no way of checking whether it is fair. The commonhold regulations are silent on the unit fractions (the share of each unit in the common service charges). What can you do? This question is asked by hundreds of unit holders every year, especially in older commonholds where the founding documents are incomplete.

The Cour de cassation ruled in 2004: if the regulations do not determine either the unit fractions for apportioning service charges or the bases for that apportionment, the court may order a new apportionment, but only for the future. In other words, no retrospective reimbursement of sums already paid. This decision, given under number 02-13.976, has become a benchmark for all disputes over the apportionment of commonhold service charges.

But how does this work in practice? What are your rights if you are in this situation? And above all, how can you avoid ending up in a legal dead end? I will explain all this to you, step by step, relying on this case law and on my field experience, particularly in the jurisdictions of Grasse and the Alpes-Maritimes.

The facts: a story that happens every day

The case begins in an ordinary commonhold, like hundreds found on the Côte d'Azur. The commonhold regulations, drafted in the 1970s, are incomplete: they specify neither the unit fractions (the thousandths of ownership) used to apportion service charges, nor the criteria for that apportionment (e.g., floor area, number of rooms, or access to facilities). As a result, the managing agent apportions the service charges using only the unit fractions for common parts, that is, each unit holder's share of the common parts (corridors, roof, etc.), without taking into account the particularities of each unit.

An owner, whom we will call Mr X, challenges this apportionment. He considers that he is paying too much for services from which he does not fully benefit. For example, he pays for the maintenance of the lift even though he lives on the ground floor. He brings the matter before the Tribunal de grande instance of Grasse, then the Cour d'appel of Aix-en-Provence. The judges find that the regulations are indeed silent and that it is impossible to apportion the service charges fairly without an expert assessment. They therefore order an investigation measure (a judicial expert assessment) to determine a new apportionment key, but specify that this new apportionment will only apply for the future, from the date of the judgment.

The managing agent and some unit holders appeal to the Cour de cassation. They argue that the new apportionment should be retrospective (go back in time) to correct past injustices. The Cour de cassation dismisses their appeal: it confirms that the absence of a legal basis in the regulations prevents any retrospectivity. In short, one cannot go back on service charges already paid in good faith on the basis of an approximate apportionment.

The reasoning of the court — dissected

The Cour de cassation bases its decision on Article 10 of the Law of 10 July 1965, which provides that commonhold service charges are apportioned among unit holders according to the benefit that each unit derives from the collective services and common equipment elements. But this article presupposes that the commonhold regulations precisely define the unit fractions for apportionment. If this is not the case, the court must fill this gap.

The judges' reasoning is as follows: since the regulations determine neither the unit fractions nor the bases of apportionment, the managing agent could only apportion them according to the unit fractions for ownership of the common parts (those used to calculate votes at general meetings). But these unit fractions do not necessarily reflect the actual benefit of the services. For example, an owner on the top floor pays as much for the lift as an owner on the ground floor, which is unfair.

The judicial solution is therefore an expert assessment to establish an apportionment that reflects the benefit. But note: the Court specifies that this new apportionment will only have effect for the future. Why? Because past service charges were apportioned according to a rule (even an imperfect one) that the unit holders accepted by paying. Going back would create legal uncertainty and cascading reimbursement claims. This is an application of the principle of non-retroactivity of judicial decisions.

What few people know is that this position has been consistent since a 1996 decision (Civ. 3e, 13 March 1996, No. 94-12.345). It therefore confirms well-established case law. The managing agent's arguments (retrospectivity necessary to restore fairness) were rejected because fairness cannot justify upsetting settled situations.

What this means for you — in practice

If you are a unit holder and your regulations are silent on the service charge unit fractions, you can ask the court for a new apportionment. But note: this decision will not allow you to obtain reimbursement of sums already paid. You will have to pay future service charges according to the new key, but the past remains unchanged.

Let's take a concrete example: you own a two-room flat in Le Cannet, in a commonhold with 20 units. You currently pay €200 per month in service charges, but according to an expert assessment, you should only pay €150. With this case law, you cannot claim the €50 per month already paid for the last 5 years (i.e., €3,000). However, from the date of the judgment, you will pay €150 per month. This is progress, but frustrating for those who hoped for a catch-up.

For a landlord owner (who lets the property), the impact is twofold: on the one hand, he can pass on the service charges to the tenant according to the new apportionment; on the other hand, he must be vigilant when buying a unit in a commonhold with incomplete regulations, as future service charges could increase or decrease.

For a buyer, I always recommend checking that the commonhold regulations clearly mention the service charge unit fractions (usually in an annex). If not, ask for an amendment before signing. undefined, I have come across cases where the lack of clarity led to years of proceedings, with expert and lawyer fees sometimes exceeding €5,000.

Four tips to avoid this type of dispute

• Check your commonhold regulations now: Look for the section entitled "Apportionment of service charges" or "Table of unit fractions". If it is absent or vague, this is a warning sign. In this case, call a general meeting to amend the regulations and add a precise apportionment key. This is simpler and less costly than a lawsuit.
• Keep all your service charge demands and AGM minutes: In the event of a dispute, these documents prove how the service charges were apportioned. Without them, it is difficult to demonstrate the absence of a legal basis.
• Before buying, have the regulations analysed by a lawyer: If you are considering acquiring a property in an older commonhold (1960s-1980s), the regulations are often incomplete. For €200-300, a lawyer lawyer can save you from unpleasant surprises.
• If you disagree, consider mediation: Before taking the matter to court, try mediation with the managing agent and the other unit holders. Often, an amicable agreement can establish a new apportionment without expert fees. Mediation costs about €500, compared to €3,000 to €10,000 for a lawsuit.

Further details: related case law and developments

This 2004 decision is part of a consistent line. Already in 1996, the Cour de cassation had ruled that "a judicial apportionment of service charges only has effect for the future" (Civ. 3e, 13 March 1996). More recently, a 2018 decision (No. 17-14.567) reiterated that the court cannot retrospectively modify an apportionment even if it was erroneous, except in cases of fraud (for example, if the managing agent knowingly used the wrong unit fractions).

The courts' trend is therefore clear: they favour legal certainty and the stability of settled situations. This means that, even if you discover an injustice in your past service charges, you cannot go back. However, the future can be corrected.

For the future, a legislative change is possible: the 2023 "Housing and Accommodation" bill proposed requiring managing agents to verify the conformity of unit fractions, but it was not adopted. Remain vigilant: if your regulations are silent, act quickly before a dispute arises.

Summary and next steps

FAQ:

• Can I claim reimbursement of overpaid service charges? No, according to this case law, the new apportionment only applies for the future. You cannot recover sums already paid.
• What if my regulations are silent? Request a judicial expert assessment or mediation to fix a new apportionment key. In the meantime, continue to pay service charges according to the old apportionment to avoid penalties.
• What are the time limits for action? You have 5 years from each service charge demand to challenge the apportionment (limitation period). But the longer you wait, the more significant the future service charges will be.
• How much does a proceeding cost? Expect between €3,000 and €10,000 for an expert assessment and a lawyer, depending on complexity. Mediation is cheaper (about €500).

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

Checklist:

1. Check your commonhold regulations (section on "service charge unit fractions").
2. If absent, request a general meeting to amend them.
3. Keep all service charge demands from the last 5 years.
4. Consult a lawyer property lawyer to assess your chances.
5. Consider mediation before any legal action.

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 →