Co-ownership: unanimity required to abolish common parts (Cass. civ. 3e, 24 Jan. 1978)

Imagine: you own a nice house in Talence, with a garden overlooking a common driveway. You and your neighbours have always enjoyed this green space, each having a small plot of land assigned to you. One day, a developer buys several lots and proposes to "simplify" the co-ownership by abolishing the common parts so that everyone becomes the exclusive owner of their land. That seems logical, right? But be careful: it's not that simple. In law, the question that arises is: can a majority decide to terminate the co-ownership when the land (even that under the houses) has remained common?

The answer, given by the Court of Cassation on 24 January 1978 (judgment no. 76-13.136), is clear: such an abolition requires the unanimity of all co-owners. Why? Because the rules of co-ownership protect the rights of everyone, and renouncing a real right (such as ownership of a common part) cannot be done without everyone's agreement. But what exactly does this change for you, owner or buyer? Let's dive into this landmark decision.

In this article, we will break down the facts, the judges' reasoning and the practical consequences for owners, co-owners and property professionals. You will discover why this 1978 decision is still relevant today and how it can protect you... or complicate your life. So, ready to understand the subtleties of co-ownership?

The facts: a story that happens every day

Let's go back to 1965, in Bordeaux. Mr X, owner of a large property complex consisting of land and houses, decides to sell lots as co-ownership. He draws up a co-ownership regulations (the document setting out the rules of living and the division of common and private parts) and sells several lots: lots 1, 4, 5, 7 and 12 to buyers. In 1967, Mr Y buys lots 2 and 3. Lot no. 3 includes the exclusive enjoyment of the first floor of a building, but the land remains common. In 1971, Mr X transfers lots 6, 9 and 10 to his son. So far, so good.

But things turn sour. A conflict breaks out among the co-owners: some wish to end the co-ownership to become exclusive owners of their land, while others oppose it. Indeed, the co-ownership regulations provide that the land, including that under the houses, has remained common. Each co-owner certainly has exclusive enjoyment (private use) of their garden, but legally, the land belongs to everyone. To abolish this co-ownership (the situation where property belongs to several people), a collective decision would be required.

The case goes to court, then to the Bordeaux Court of Appeal. The trial judges decide that the abolition of the co-ownership can be decided by a majority (of votes). But the opposing co-owners appeal to the Court of Cassation. The Court of Cassation, in its judgment of 24 January 1978, quashes (annuls) the Court of Appeal's decision. It holds that the abolition of the co-ownership, when all the land has remained common, requires the agreement of all co-owners. In other words, a single vote against is enough to block the project.

The reasoning of the court — explained

To understand the decision, we must look at the legal basis. The Court of Cassation relies on Article 1 of the Law of 10 July 1965 (which governs co-ownership) and on Article 1134 of the Civil Code (now Article 1103) which provides that agreements legally formed take the place of law for those who have made them. In short, the co-ownership regulations are a contract that all co-owners have accepted. Amending this contract, especially to abolish the co-ownership itself, cannot be done without the unanimous agreement of the parties.

But the Court goes further. It specifies that, in this particular case, the land (even that on which the buildings are located) has remained common. However, the 1965 Law distinguishes between common parts (which belong to everyone) and private parts (which belong to one person). Here, the regulations qualify the land as common, even if each co-owner has exclusive enjoyment of their garden. This qualification is crucial: to convert a common part into a private part, unanimity is required. Why? Because each co-owner holds a right of ownership over the common parts (a share). Renouncing this right requires their personal consent.

What few people know is that this decision is part of a body of case law protecting minority co-owners. The judges want to prevent a majority from imposing its will to the detriment of everyone's rights. However, be careful: the solution would have been different if the land had been qualified as private parts from the outset. But here, the regulations were clear. In summary, to abolish the co-ownership, either unanimity is required, or an amendment to the regulations by unanimous decision. undefined, I have come across cases where developers tried to force through a two-thirds majority. This decision reminds them that individual property rights are protected.

What this changes for you — concretely

For the landlord owner (the one who rents out their property), this decision means that you cannot, alone or with a few neighbours, decide to leave the co-ownership. If you want to resell your lot by detaching it from the co-ownership, you will need to convince all the other co-owners. Concrete example: you own a flat in Bordeaux, in a residence where the garden is common. A developer proposes to buy the whole thing to build a block. Even if 80% of co-owners agree, the remaining 20% can block the project. So you are protected if you want to keep your property, but you are also potentially blocked if you want to sell to a developer.

For the tenant (the one who rents), the impact is indirect. The decision maintains the status quo: the co-ownership continues, charges are shared according to the regulations. But if the owner of your home sells their lot, the new owner must respect the co-ownership rules. No risk of sudden abolition of your green spaces.

For the buyer (the one who purchases), this is a point of vigilance. Before buying a lot in a co-ownership, check the co-ownership regulations: is the land common or private? If you buy a house with a garden, make sure the land belongs to you outright. Otherwise, you will not be able to fence it off or sell it without the agreement of others. Example in Talence: a couple buys a house with a large garden. The regulations state that the land is common, but with exclusive enjoyment. They want to build a swimming pool. Impossible without the agreement of the general meeting (unanimously if it modifies the common parts).

Four tips to avoid this type of dispute

• Check the co-ownership regulations before buying. Do not rely on appearances: an assigned garden may remain legally common. Ask your notary to explain precisely the qualification of the land and outdoor spaces.
• If you want to modify the division of common parts, prepare to negotiate. Any conversion of a common part into a private part requires unanimity. Anticipate opposition and discuss with your neighbours in advance.
• In case of a division or global sale project, consult a lawyer lawyer. A professional will help you assess the feasibility and draft the necessary deeds. Do not try to force through a simple majority: the Court of Cassation would remind you of the rules.
• Document your agreements. If you obtain unanimity to abolish the co-ownership, have an amending deed drawn up by a notary and publish it in the land registry. Otherwise, an oral or even written agreement between co-owners could be challenged.

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Further reading: related case law and developments

The 1978 decision is not isolated. It is part of a line of judgments protecting the rights of minority co-owners. For example, in a judgment of 9 March 1977 (no. 75-14.217), the Court of Cassation had already ruled that the abolition of an easement (a right of way, for example) required the unanimous agreement of the owners of the servient and dominant tenements. More recently, the Court reaffirmed this principle in a judgment of 8 September 2016 (no. 15-19.246): any modification of the division of common parts requires unanimity, unless the regulations expressly permit it.

This case law is consistent. It shows that the courts are attached to the stability of real rights. In short, a co-owner cannot be deprived of their right over a common part by a majority. This has consequences for developers: before launching a restructuring project of a co-ownership, they must ensure the agreement of all. Otherwise, the project may be blocked for years.

In practice: what to do

FAQ:

Q: Can I fence off my garden if it is qualified as a common part with exclusive enjoyment?
A: Yes, if the regulations allow it (which is often the case). But for constructions (garden shed, swimming pool), the agreement of the general meeting may be necessary. Check the regulations.

Q: What if I want to sell my lot to a developer who wishes to abolish the co-ownership?
A: You can sell your lot, but the developer will need to obtain unanimity to abolish the co-ownership. If they fail, they must respect the rules in force. Inform the buyer of this constraint.

Q: Can a co-owner oppose the abolition of the co-ownership without a valid reason?
A: Yes, because it is a property right. They do not have to justify their opposition. It is an absolute right, unless there is an abuse (but abuse is difficult to prove).

Q: What is the time limit to challenge a decision to abolish taken by a majority?
A: You have 5 years from the publication of the deed in the land registry to bring an action for nullity. After this period, the action is time-barred.

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