Co-ownership Charges: Bare Owner and Usufructuary Jointly Liable Even Without Notification

Imagine: you own a flat in Mimizan which you have severed – you have given the usufruct to your child while retaining the bare ownership. One day, the managing agent demands payment of the charges unpaid by the usufructuary. You thought you were safe, but the co-ownership regulations contain a joint liability clause. Are you obliged to pay? This question has arisen in practice in cases in Tarnos and Mimizan. The Court of Cassation, in a judgment of 14 April 2016 (No. 15-12.545), ruled: this clause is lawful and applicable, even if you did not inform the managing agent of the severance. Explanations.

The Facts: An Everyday Story

Mr [J] is the bare owner of a co-ownership unit; Mrs [G]-[F] is his usufructuary. The co-ownership regulations provide that "co-owners are obliged to contribute to the charges [...] and that the bare owner and usufructuary are jointly liable." However, the charges are not paid. The co-owners' association sues both for payment, relying on this clause.

Problem: Mr [J] argues that he was never informed of his obligations, because the severance was not notified to the managing agent. He contends that the clause cannot be invoked against him. The Court of Appeal agrees, holding that joint liability cannot apply without notification. But the managing agent appeals to the Court of Cassation.

Twist: the Court of Cassation quashes the appeal judgment. It recalls that the clause in the co-ownership regulations is a contract binding on all co-owners, whether or not they have notified the severance. It does not matter that the managing agent was not warned: the joint liability exists by virtue of the clause itself.

The Court's Reasoning – Analysed

The lower courts had applied Article 1240 of the Civil Code (formerly 1382): "Any act of a person which causes damage to another obliges the person by whose fault it occurred to make reparation." They considered that the bare owner had not committed a fault since he was unaware of the clause. But the Court of Cassation rejects this reasoning.

It relies on the Law of 10 July 1965 (the co-ownership law) and on the co-ownership regulations, which have contractual force. Article 6 of that law provides that the co-ownership regulations "determine the purpose of the private and common parts, the conditions of enjoyment, and the methods of apportioning charges." Joint liability between bare owner and usufructuary is a method of paying charges, perfectly lawful.

In other words, the clause applies automatically, without any need for notification. The bare owner is deemed to have accepted this joint liability when purchasing the unit, even in a severed ownership. This is not a novel decision: the Court of Cassation confirms earlier case law (Civ. 3e, 10 March 1993, No. 91-11.246).

What This Means for You – Practically

If you are a bare owner: you can be sued by the managing agent for charges unpaid by the usufructuary. Example: in Tarnos, a bare owner had to pay €3,200 in arrears when the usufructuary was insolvent. You must therefore monitor the payment of charges by the usufructuary or request a monthly receipt.

If you are a usufructuary: you are also jointly liable. But in practice, you occupy the dwelling, so you must pay the current charges. The bare owner can claim against you if they have paid on your behalf.

If you are a purchaser of a severed unit: check the co-ownership regulations before buying. A joint liability clause may expose you to debts of the other holder.

If you are a managing agent: you can demand payment of charges from either party, without having to prove notification of the severance. This simplifies recovery.

What few people know: even if the bare owner was not informed, they remain liable. undefined, I have seen cases where bare owners were surprised to receive a formal notice from the managing agent, thinking they had only rights, not financial obligations.

Four Tips to Avoid This Type of Dispute

• Read the co-ownership regulations before any severance: check if they contain a joint liability clause. If so, provide in the deed of severance who will pay the charges – and enforce it.
• Inform the managing agent in writing: send a registered letter with acknowledgement of receipt to the managing agent to notify the severance and indicate who is responsible for payment. This will avoid any confusion.
• Require a periodic statement of charges: ask the managing agent to send you each year a statement showing the amounts due for each unit. If you are a bare owner, check that the usufructuary pays.
• If you are sued, pay then seek recourse against the other: by virtue of joint liability, you can pay the whole amount, then claim against the usufructuary for their share. But beware: if the usufructuary is insolvent, you remain the sole debtor.

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Further Reading: Related Case Law and Developments

This decision is part of a series of rulings favourable to contractual freedom. As early as 1993, the Court of Cassation upheld joint liability between bare owner and usufructuary (Civ. 3e, 10 March 1993, No. 91-11.246). More recently, it clarified that this clause applies even if the severance predates the entry into force of the regulations (Civ. 3e, 10 September 2015, No. 14-17.374).

The trend is clear: the courts protect the co-owners' association by facilitating the recovery of charges. For severed owners, this is a source of vigilance. In the future, we can expect the courts to continue to apply contractual clauses strictly, without requiring additional formalities.

In Practice: What to Do

1. Check your co-ownership regulations: look for the clause relating to charges and severance. If there is joint liability, note it.
2. If you are a bare owner: ask the usufructuary to provide you with proof of payment of charges each quarter.
3. If you are a usufructuary: pay the charges on time to avoid an action by the managing agent against the bare owner, who could then claim against you.
4. In case of non-payment: do not rely on lack of notification to escape joint liability. Pay, then seek recourse against the co-debtor.

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