Owners' Association: Can It Act for Your Private Parts?

Imagine: you own a flat in Bricquebec, in the Cotentin. Since the construction of your building ten years ago, water leaks appear in your living room every winter. You have alerted the managing agent, who has sued the builder on behalf of the co-ownership. Relieved, you think your personal problem will be resolved in the same action. But then the court of appeal declares your claim inadmissible because your action is time-barred. How is this possible? Does the owners' association not have the power to defend your individual interests as well?

This question, fundamental for every co-owner, was settled by the Court of Cassation in a judgment of 10 December 1985. The high court set a clear limit: the owners' association may sue to safeguard the rights relating to the building, but only for collective interests, not for individual prejudices affecting the private parts. In other words, your personal leak does not fall within the scope of the association's action, unless it affects all co-owners.

This judgment, although dating back nearly forty years, remains an absolute reference in co-ownership law. It is cited in almost all disputes where a co-owner tries to latch onto the association's action to avoid the limitation period. So what should you do if you are in this situation? How do you protect your rights? That is what we will see, with concrete examples in Valognes and elsewhere.

The facts: a story that happens every day

The case began with the construction of a building in Bricquebec. A few years after completion, defects appeared: cracks in the common parts, but also leaks and waterproofing defects in several private flats. The owners' association, duly authorised by a general meeting, sued the builders (architect, contractor) before the tribunal de grande instance for damages. The action was brought within the ten-year warranty period (ten years from the acceptance of the works).

But the proceedings dragged on. Several co-owners, including Mr X, owner in Bricquebec, and Mrs Y, owner in Valognes, decided to intervene voluntarily in the proceedings to claim compensation for their personal losses: damage to their bathroom, cracked tiles, etc. Problem: their intervention took place after the expiry of the ten-year period. To avoid the limitation period, they relied on the association's action: since the association had acted within the time limit, that had interrupted the limitation period for everyone, including for the private parts.

The court of appeal ruled in their favour. It considered that the association's action, which covered both the common parts and the private parts, had interrupted the time limit for all co-owners. But the builder appealed to the Court of Cassation. And the Court of Cassation quashed the judgment: it recalled that the association only has standing to act in defence of collective interests. Since the defects in the private parts only concerned a few co-owners individually, the association's action did not interrupt the limitation period for them. Result: the interventions of the co-owners were inadmissible, as they were time-barred.

The reasoning of the court — dissected

The Court of Cassation relied on Article 15 of the Law of 10 July 1965 (the law on co-ownership). This provision states that the association has the capacity to sue to safeguard the rights relating to the building. But beware: this action can only target the collective interests of the co-owners, i.e. those concerning the building as a whole. Individual interests, such as damage to a private unit, are the personal responsibility of each co-owner.

In short, the association is like a representative of the community: it can defend the roof, the facade, the stairs, but not your tiles or your leaking tap. For the latter, it is up to you to act personally. The Court also specifies that for the association's action to benefit an individual co-owner, the disturbance must be collective, i.e. potentially affecting all co-owners in the same way (for example, a generalised construction defect affecting all dwellings).

This reasoning is consistent in case law. It is based on a fundamental distinction between the common parts (whose management is collective) and the private parts (of which each owner is the sole master). The Court of Cassation has already had occasion to reiterate this in other judgments, such as the judgment of 27 March 1991 (no. 89-19.911) where it ruled that the association cannot act on behalf of a co-owner unless he has given it a special mandate.

But then, what happens if the association has nevertheless included the private parts in its action? The Court answers: this does not interrupt the limitation period for individual co-owners, because the association had no standing to act on that point. In other words, the association's action is void as regards the private part, and therefore ineffective on the limitation period.

What this changes for you — concretely

If you are a co-owner, this decision has very practical consequences. Suppose you live in Valognes, in a co-ownership built in 2015. In 2023, you notice cracks in your living room. You inform the managing agent, who initiates an action against the builder for defects in the common parts. You think you are covered. But if you do not intervene yourself within the ten-year period, your personal action will be time-barred.

For a landlord owner, it is even more crucial: if your tenant suffers damage in his dwelling (e.g. a water leak), it is up to you to act against the builder, not the association. And you must do so within the ten-year or two-year warranty period depending on the nature of the defect.

For a buyer, check carefully whether the association's action covers the defects of your unit. If not, and the time limit is about to expire, you must act in your own name. A tip: when buying, ask the seller if there are any ongoing actions and whether they also concern the private parts. undefined, I have come across cases where co-owners lost their right to compensation because they relied on the association's action.

Finally, for real estate professionals (agents, notaries), this case law must be systematically explained to clients. A simple referral to the managing agent is not enough. They must be alerted to the need to act personally for private defects.

Four tips to avoid this type of dispute

• Act within the time limits: As soon as you notice a defect in your unit, consult a lawyer to check the applicable time limit (ten-year warranty: 10 years from acceptance; two-year warranty: 2 years). Do not rely on the association's action.
• Obtain a special mandate: If you want the association to act for your private unit, have a specific authorisation voted at a general meeting, or give a written mandate to the managing agent. This avoids any ambiguity.
• Intervene voluntarily: If the association has already initiated an action, but your loss is individual, ask to intervene in the proceedings before the expiry of the time limit. Your lawyer will help you draft submissions for voluntary intervention.
• Document everything: Keep all letters, photos, estimates. Proof of the defect and its date is essential. If you alerted the managing agent in writing, keep a copy. This can help show that you acted in time.

Further reading: related case law and developments

This 1985 decision has been confirmed several times. For example, the Court of Cassation, in a judgment of 27 March 1991 (no. 89-19.911), specified that the association cannot act for private parts without a special mandate. More recently, a judgment of 12 September 2019 (no. 18-21.178) recalled that the association's action for defects affecting both common and private parts only interrupts the limitation period for the common parts, unless the private parts are indivisible from the common parts (e.g. a common terrace that serves as a roof for a private unit).

The trend of the courts is therefore very clear: they protect the distinction between collective and individual. This means that, in the future, co-owners must be particularly vigilant. A possible development would be for the law to clarify the cases where the disturbance is considered collective (e.g. a generalised construction defect). But as it stands, the case law remains strict.

In practice: what to do

Checklist to follow if you notice a defect in your private unit:

1. Identify the nature of the defect and its date of appearance.
2. Check the applicable limitation period (ten-year or two-year warranty).
3. Consult a lawyer specialising in property law.
4. If the association has already acted, check whether the action covers your unit. If so, intervene voluntarily. If not, start your own action.
5. Do not wait: once the time limit has expired, you lose all right to compensation.

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 →