Servitude of a Common Courtyard: When a Leasehold Title Deed Cannot Abolish a Perpetual Charge

Imagine the scene: you own a flat in Salon-de-Provence, in an old building in the city centre. For years, the small inner courtyard has served as a common passage, a storage place for bicycles, and a refuge for the neighbourhood cats. One day, the syndicate of co-owners decides to build a bin store there. You object, arguing that this courtyard is a "servitude of a common courtyard" that must remain free. The syndicate replies that the leasehold title deed authorises this construction. Who is right? This is precisely the question decided by the French Supreme Court in a judgment of 15 December 1999 (No. 97-22.161), a decision that still carries authority today.

This story is one I regularly encounter in my practice in Aix-en-Provence, Arles or Marseille. A developer or co-owner wants to enhance a common area, but comes up against a servitude that is several decades old, even a century. The question is always the same: can a servitude created in the public interest, to comply with planning regulations, be abolished by a vote at a general meeting? The answer is no, and it is final.

But what does this actually mean for you, as an owner, tenant or property professional? This decision establishes a fundamental principle: certain servitudes, known as "perpetual", cannot be erased by a simple leasehold title deed. In short, if your building is burdened by a servitude of a common courtyard created to satisfy regulatory requirements (especially planning), this servitude binds everyone, including the syndicate. Any contrary clause in the leasehold title deed is deemed unwritten. In other words, the title deed cannot contradict what has been established in the interest of the community.

The facts: a story that happens every day

Let us return to the case that gave rise to this judgment. A company, which we will call "Samas", owned a building used for residential and commercial purposes. This building had an inner courtyard, described as a "common courtyard" in an old deed of sale (a "treaty" as they used to say in the 19th century). This courtyard had been created to comply with the regulatory requirements of the time (particularly regarding hygiene and sanitation). It was to remain free of any construction, in perpetuity.

Years later, the building was converted into co-ownership. The leasehold title deed, drafted without considering this servitude, authorised the syndicate to build in the courtyard. Samas, which still owned units in the building, objected. It brought proceedings to have it recognised that the servitude of a common courtyard prevailed over the leasehold title deed. The syndicate of co-owners resisted, arguing that the servitude had been extinguished by confusion (since the owner of the servient tenement and the dominant tenement were the same) and that the leasehold title deed was law between the co-owners.

The Court of Appeal ruled in favour of Samas. It found that the servitude had been created to comply with regulatory requirements, that it did not benefit a dominant tenement (it was a servitude of general interest, not for the benefit of a particular owner) and that it was perpetual in nature. It concluded that this servitude constituted a charge burdening the building's land in perpetuity and was binding on the syndicate. Clauses in the leasehold title deed contrary to this charge were to be deemed unwritten. The syndicate appealed to the Supreme Court.

The reasoning of the court — dissected

The French Supreme Court, in its judgment of 15 December 1999, dismissed the syndicate's appeal. It approved the Court of Appeal's reasoning, based on two legal pillars.

First, the Court recalled that servitudes are governed by Articles 637 et seq. of the Civil Code. A servitude is a charge imposed on a piece of land (the servient tenement) for the use and benefit of a piece of land belonging to another owner (the dominant tenement). But in this case, the servitude of a common courtyard had no dominant tenement: it was created in the interest of the community (the building's residents, the neighbourhood, public health). It was therefore not a classic servitude, but a perpetual real charge, which attached to the land regardless of the owner.

Secondly, the Court dismissed the argument of extinction by confusion (when the owner of the servient tenement also becomes the owner of the dominant tenement). Here, there was no dominant tenement, so no confusion was possible. It also recalled that the co-ownership legislation (Law of 10 July 1965) does not allow the leasehold title deed to abolish a charge that was established in the public interest. Article 2 of the Law requires the leasehold title deed to define the common and private parts, but it cannot derogate from a planning or collective interest servitude.

What few people know is that this decision is part of a line of cases protecting servitudes of general interest. The Supreme Court has already ruled, for example, that a right of way created to give access to a landlocked property cannot be abolished by agreement between owners if it benefits the public (Civ. 3e, 12 Jan. 1994). Here, it goes further: even a purely private servitude, but created to comply with regulatory requirements, is untouchable.

What changes for you — concretely

For co-owners: if your building has a courtyard, passage or space described as "common" in an old deed, and that space was created to comply with planning rules (height, width, ventilation), you cannot decide at a general meeting to build anything there, even by a majority. A clause in the leasehold title deed authorising construction would be void. Example in Arles: an 18th-century building with an inner courtyard of 30 m², created to comply with the 1840 alignment plan. The syndicate wants to build a bicycle shelter there. Impossible, unless it can be shown that the servitude no longer serves any purpose (which is very difficult).

For buyers: before purchasing a unit in an old co-ownership, check the title deeds. Look for a reference to a "servitude of a common courtyard", "common passage" or "area way". If one exists, know that it is perpetual and you will not be able to modify it. Ask your notary or a lawyer lawyer to analyse the deeds. An oversight can cost you dearly: imagine you buy a flat with an exclusive right over part of the courtyard, and the servitude prevents any construction. You will not be able to carry out the extension project you had planned.

For property developers: be cautious when subdividing old buildings. A servitude of general interest may escape you if you do not trace back to the original deeds. undefined, I came across a case in Salon-de-Provence where a developer bought a building to convert into flats, without noticing that a servitude of a common courtyard prohibited any construction in the courtyard. He had to revise his plans, losing 6 months and €50,000 in studies.

Four tips to avoid this type of dispute

• Check old title deeds: do not rely solely on the leasehold title deed. Go back through successive deeds of sale, especially if the building dates from before 1900. Look for the words "common courtyard", "common passage", "servitude", "perpetual charge".
• Check historical planning requirements: some servitudes were created to comply with road or hygiene regulations that have since been repealed. But the servitude remains unless it is officially abolished by the competent authority. Consult the town planning department of the town hall (in Arles or Salon, for example).
• Do not assume that a majority of co-owners can decide everything: a resolution of a general meeting that contradicts a perpetual servitude can be annulled. Before voting, have a lawyer analyse the situation. The cost of the consultation (a few hundred euros) is trivial compared to the risk of legal proceedings.
• If in doubt, apply to the civil court: if you are an owner and the syndicate wants to build in a common courtyard, you can ask the judge to declare that the servitude prevails and that the contrary clauses in the title deed are unwritten. Beware: limitation periods are short (5 years from the general meeting decision).

Further reading: related case law and developments

This 1999 judgment is not isolated. The Supreme Court has handed down several decisions to the same effect, notably a judgment of 7 October 1998 (No. 96-19.084) where it held that a right of way created to serve a housing estate could not be abolished by the leasehold title deed. More recently, in a judgment of 12 May 2016 (No. 15-14.779), it extended this principle to planning servitudes established in a local town plan (PLU).

The trend of the courts is therefore clear: servitudes of general or collective interest are protected almost absolutely. Judges consider them to be a matter of public policy, and even the unanimous will of the co-owners cannot derogate from them. However, be careful: this protection only applies to servitudes created by a notarised deed or by thirty years' adverse possession. A simple mention in a leasehold title deed is not enough to create a perpetual servitude.

What should we take away for the future? With urban densification, conflicts over common courtyards are likely to multiply. Co-owners will want to optimise space, but historical servitudes will prevent them. The case law should remain constant: the general interest prevails over private interest. If you are faced with this type of dispute, do not wait. Prompt action can avoid an irregular construction and the costs of reinstatement.

Key points to remember

• A servitude of a common courtyard created to comply with regulatory requirements is perpetual: it cannot be abolished by a vote at a general meeting, nor by a clause in the leasehold title deed.
• The leasehold title deed cannot contradict a charge established in the interest of the community: contrary clauses are deemed unwritten.
• Extinction by confusion does not apply to this type of servitude because it does not benefit a dominant tenement.
• Before buying or building, check old title deeds and existing servitudes. A preliminary consultation with a lawyer lawyer is strongly recommended.
• In case of dispute, act quickly: you have 5 years to challenge a general meeting resolution that is contrary to the servitude.

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