Catering service in a co-ownership: freedom of organisation and apportionment of service charges

Imagine: you own a flat in Vallauris, in a development that has a communal kitchen and a catering service. So far, so good. But one day, the managing agent tells you that you have to pay service charges for this service, even if you have never touched a piece of cutlery there. “How can that be?” you ask yourself. “I didn't subscribe, I don't eat there, why should I pay?”

This question has been raised by several co-owners before the courts. And the answer of the Court of Cassation, in 1982, laid down an important principle: if the co-ownership regulations do not mention a collective service, and especially if they do not organise its operation, the co-ownership may freely decide to entrust it to an independent third party, without imposing membership or contribution to the charges on everyone. But what exactly does this change? And above all, is it still valid today?

In this article, we will dissect this decision and its practical consequences for co-owners, owners' associations and managers. Whether you are in Antibes, Grasse or elsewhere, the principles derived from this case remain relevant. So, how should you react?

The facts: a story like any other

In a co-ownership located in Vallauris, the co-ownership regulations provided for the creation of a communal kitchen and catering service. But, and this is an important detail, the regulations said nothing more: neither the organisation of the service, nor the method of apportioning the charges, nor even the obligation for co-owners to subscribe. A few years later, the co-ownership entrusted the management of this service to an independent cooperative society. Some co-owners, whom I will call Mr X and his neighbours, were not happy: they considered that this service should be managed by the co-ownership itself and that all co-owners should contribute to the charges, whether they were users or not.

They therefore sued the owners' association to have the clauses of the regulations that authorised the creation of this service annulled. Their main argument? The co-ownership regulations, in their view, could not delegate the management of a collective service to a third party, as this would contravene the Law of 10 July 1965 on co-ownership. In short, they considered that the decision to create and manage the service was a matter for the community of co-owners, and that everyone should pay their share, even without using the service.

The Court of Appeal dismissed their claim, and the Court of Cassation confirmed. For the judges, the co-ownership regulations did not mention the catering service among the collective services assumed by the co-ownership, and they contained no provisions on its organisation or operation. Consequently, the co-ownership was entirely free to entrust this service to an independent organisation, and the co-owners were not obliged to subscribe. As a result, the cost of the service had to be apportioned only among the users, and not among all co-owners.

The reasoning of the court — dissected

The core of the judges' reasoning is based on the interpretation of the co-ownership regulations and the principles of the Law of 10 July 1965. Article 10 of this law (in its version applicable at the time) provides that co-owners are required to contribute to the charges incurred by collective services and common equipment items. But, the Court specifies, this only applies if the co-ownership regulations have provided for these services and defined their method of apportionment.

In other words, if the regulations are silent on a particular service — in this case catering — the owners' association is not obliged to take it on collectively. It may decide to entrust its management to a third party, such as a cooperative society, and the corresponding charges will only be borne by those who use the service. However, be careful: if the regulations had expressly provided that this service was part of the common charges, the solution would have been different.

What few people know is that this decision is part of a logic of contractual freedom and non-interference in the private lives of co-owners. The Court of Cassation considered that imposing on all co-owners the obligation to pay for a service they do not use would be contrary to equity and the will of the parties, as expressed in the regulations. In short, the judges protected the principle that “he who does not use, does not pay”.

The co-owners who contested the decision invoked Article 1 of the 1965 Law, which lays down the principle of contribution to charges for collective services. But the Court replied that this principle only applies if the service is indeed collective, i.e. provided for as such in the regulations. However, in this case, the regulations did not mention the catering service as a collective service assumed by the co-ownership. Therefore, the judges concluded that the co-ownership had the option of entrusting it to an independent organisation, without all co-owners being obliged to subscribe.

What this means for you — in practical terms

This decision has very concrete practical implications, whether you are a landlord-owner, a tenant, or a member of a co-ownership council. Let's take some examples.

For a co-owner in Antibes: if your development has a swimming pool, a gym or a concierge service, and the co-ownership regulations do not mention these services as forming part of the common charges, the managing agent cannot force you to contribute if you do not use them. On the other hand, if the regulations provide for them, you will have to pay, even if you do not use them. undefined, I have come across cases where co-owners were billed for a catering service they never used. Thanks to this case law, we were able to obtain a refund of the sums wrongly paid.

For a landlord-owner: if you rent out your property, you should check the co-ownership regulations before buying. An optional service can be an asset to attract tenants, but if it becomes compulsory, it increases your charges. As a landlord, you can pass on the service charges to the tenant, but only if they correspond to services from which the tenant benefits. A service to which the tenant does not have access cannot be charged to them.

For a tenant: you are not directly bound by the co-ownership regulations, but your lease may provide that you will reimburse certain charges to the owner. If the owner asks you to pay charges for a service you do not use, you can challenge this by referring to this case law.

Concretely, if you are in this situation, you should:

• Check the co-ownership regulations to see if the disputed service is mentioned there as a collective service.
• Examine the general meeting decisions: did they vote on the creation or management of the service?
• Challenge the service charge statement in writing if you are not a user.

A numerical example: if you pay €50 per month for a catering service you do not use, over 5 years that amounts to €3,000. Legal action may enable you to recover these sums, with interest.

Four tips to avoid this type of dispute

• Read the co-ownership regulations carefully before buying. Identify the services listed as general common charges. If a service seems optional but is included in the charges, negotiate or walk away.
• Have any creation or modification of a service voted on at a general meeting. A clear decision, with an apportionment of charges between users and non-users, will avoid disputes. Include an “optional service” clause in the regulations.
• Keep all supporting documents for your charges. In the event of a dispute, you will need to prove that you did not use the service. Certificates, photos, or attendance records are useful.
• Consult a lawyer lawyer at the first signs of difficulty. A well-drafted mediation or formal notice can resolve the conflict without a trial. For example, a 30-minute consultation can guide you on the strength of your case.

Further detail: related case law and developments

This 1982 decision has been confirmed by subsequent case law. For example, in a judgment of the Court of Cassation of 25 March 1998 (No. 96-14.123), the judges reiterated that charges relating to a collective service can only be apportioned among all co-owners if the regulations expressly provide for it. Failing that, only users must pay.

More recently, the trend of the courts has been to protect the co-owner against improper charges. The ALUR Law of 2014 strengthened transparency of charges and information for co-owners. Now, the managing agent must provide a detailed statement of charges, and any co-owner can challenge an apportionment they consider abusive.

However, be careful: if the co-ownership regulations have been amended at a general meeting to include the service in the common charges, the situation changes. In that case, even non-users will have to pay, unless they can demonstrate that the amendment is abusive or contrary to the law.

This case law therefore remains a cornerstone for all those who challenge charges for optional services. It perfectly illustrates the principle of contractual freedom and respect for the will of the co-owners as expressed in the regulations.

What you absolutely must remember

FAQ:

• Can I refuse to pay charges for a service I do not use? Yes, if the co-ownership regulations do not provide for this service as a common charge. You must then challenge the statement by registered letter to the managing agent.
• What if the managing agent insists on making me pay? Apply to the Judicial Court (formerly the High Court) to have the optional nature of the service recognised. You can also request mediation.
• What are the time limits for taking action? You have 5 years from the due date of each charge to take legal action. After that, the claim is time-barred.
• Can the managing agent decide alone to create a paid service for everyone? No, only a general meeting can vote on the creation of a collective service and its apportionment. If the managing agent acts alone, the decision is void.

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Checklist:

1. Check the co-ownership regulations (section on “common charges”).
2. Consult the minutes of general meetings.
3. If you are a non-user, send a written complaint to the managing agent.
4. If refused, consult a lawyer to take legal action.

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