Secondary Syndicate: When a Co-ownership Divides Unintentionally

Imagine you own a flat in a residence in Capbreton, facing the ocean. Your building is part of a larger complex, with a shared swimming pool, garden, and car park. Each month, you receive your service charge demand (the apportionment of co-ownership expenses) and you notice that some expenses only concern your building, while others are shared with the entire residence. But who really decides on these specific expenses? The co-owners' syndicate (the general meeting of all owners) or a restricted group?

This seemingly technical question can generate costly and lengthy conflicts. undefined in Mont-de-Marsan, I have seen co-ownerships where some owners believed they had created a "secondary syndicate" (a separate legal entity within the co-ownership) to manage their specific common areas, while others contested this separation. The Court of Cassation, in its decision of 14 March 2019, provides a clear answer that directly concerns your daily life.

But what exactly does this change for you, as an owner, tenant, or real estate professional? In short, this decision reminds us that the mere specialisation of charges and common areas is not enough to create a secondary syndicate. In other words, even if your co-ownership regulations provide specific rules for your building, you remain subject to the decisions of the general meeting of the entire co-ownership, except under very strict conditions. Let's look at this in detail.

The facts: a story as it happens every day

Mr. Dubois, owner of a flat in building B within a co-ownership in Parentis-en-Born, notes that his co-ownership regulations provide for "special common areas" (spaces used only by the owners of his building) and "special charges" (expenses specifically allocated to these areas). For example, the maintenance of the lift in building B or the refurbishment of its roof. Only the co-owners of building B are called to vote on these charges during general meetings.

Mr. Dubois believes that this organisation amounts to the creation of a secondary syndicate, i.e., an autonomous legal entity within the co-ownership, with its own management rules. He invokes Article 26 of the Law of 10 July 1965 (the founding text of co-ownership), which allows the creation of such secondary syndicates when the co-ownership comprises several buildings or groups of buildings. According to him, this would give him more autonomy to manage the expenses of his building without depending on the other owners.

The syndic (the manager of the co-ownership) and other co-owners contest this interpretation. They assert that there was never a clear intention to create a secondary syndicate, and that the specialisation of charges is simply a method of apportioning expenses, without deeper legal implications. The conflict escalates to the tribunal, then to the court of appeal, before arriving before the Court of Cassation. The stakes are high: if a secondary syndicate exists, it can have its own budget, its own syndic, and make independent decisions. Otherwise, everything must go through the general meeting of the entire co-ownership.

The reasoning of the court — dissected

The Court of Cassation, in its judgment of 14 March 2019, rejects Mr. Dubois's claim. The judges remind us that the creation of a secondary syndicate is not automatic. It requires an express intention of the co-owners, materialised by a decision of the general meeting or a clear clause in the co-ownership regulations. Here, the mere fact that the regulations provide for special common areas and special charges is not sufficient to characterise this creation.

The legal basis is Article 26 of the Law of 10 July 1965, which states: "When the co-ownership comprises several buildings or groups of buildings, a secondary syndicate may be created for each of them." The court interprets this text strictly: a clear intention to create a separate entity is required, not just a functional specialisation. In other words, providing that only the concerned co-owners vote on certain charges is a common practice to apportion expenses fairly, but it does not create a new legal personality.

The court analyses the arguments of both parties. Mr. Dubois argued that the autonomous management of building B, with its specific charges, amounted to a secondary syndicate. The court responds that this autonomy is limited to the apportionment of charges and does not extend to overall independent management. It also notes that no charges common to both buildings (e.g., maintenance of shared green spaces) are contested, which shows that the unity of the co-ownership remains. In short, the specialisation of charges is a practical modality, not a legal separation.

This reasoning confirms consistent case law: the courts are cautious about implicit creations of secondary syndicates, which could weaken the cohesion of the co-ownership. undefined, I have encountered cases where owners attempted to invoke such a creation to avoid participating in common works, but the judges always require solid evidence of a collective intention.

What this changes for you — concretely

If you are a co-owner, this decision directly concerns you. It means that you cannot assume the existence of a secondary syndicate simply because your regulations provide for special charges. For example, if you live in a building in a residence in Parentis-en-Born with a private swimming pool, and only the owners of this building pay for its maintenance (say €5,000 per year), this does not make you a secondary syndicate. You must still participate in the decisions of the general meeting of the entire co-ownership for common charges, such as security (around €3,000 per year) or insurance (around €2,500 per year).

For landlord owners, this implies clearly explaining the apportionment of charges to your tenants. If your tenant contests a special charge, you cannot invoke a secondary syndicate to justify autonomous management. You must refer to the co-ownership regulations and the decisions of the general meeting. However, be careful: if you are a purchaser, check whether a secondary syndicate actually exists before buying. Otherwise, you might be surprised by decisions made by all the co-owners.

For real estate professionals (syndics, developers), this decision reminds us of the importance of clarity in documents. If you wish to create a secondary syndicate, for example for a new building in an existing co-ownership in Capbreton, you must provide for it explicitly in the regulations or vote on a resolution in the general meeting. Otherwise, you risk disputes like Mr. Dubois's, with procedures that can last 2 to 3 years and cost several thousand euros in legal fees.

Four tips to avoid this type of dispute

• Read your co-ownership regulations carefully: Check if they explicitly mention the creation of a secondary syndicate. If not, do not presume its existence, even with special charges.
• Participate in general meetings: When decisions concerning special charges are voted on, ensure they respect the legal framework. Ask questions if you have doubts about the management.
• Consult a specialised solicitor before acting: If you are considering creating a secondary syndicate, seek advice to draft appropriate clauses and avoid nullities.
• Document any collective intention: In case of discussion about autonomous management, materialise it with minutes of the general meeting or an addendum to the regulations, to avoid divergent interpretations.

Deep dive: related case law and developments

This decision fits into a stable jurisprudential trend. For example, in a judgment of the Court of Cassation of 7 January 2015 (No. 13-27.290), the judges had already reminded us that the specialisation of charges does not automatically create a secondary syndicate. They require an "unequivocal intention" of the co-owners, often materialised by a resolution of the general meeting.

What few people know is that this approach protects the unity of the co-ownership, avoiding its fragmentation into multiple entities that would complicate management. For the future, this means that the courts will continue to interpret the law strictly, favouring collective cohesion. In a context where co-ownerships are becoming more complex, with additions of buildings or renovations, this clarity is essential to prevent conflicts.

Checklist before acting

• If you think a secondary syndicate exists in your co-ownership: Check the regulations and minutes of general meetings for an explicit mention. Otherwise, consult a solicitor before contesting decisions.
• If you wish to create a secondary syndicate: Propose a resolution in the general meeting, with a solicitor's advice for drafting. Budget for legal fees (around €1,500 to €3,000).
• If you are a tenant and contest charges: Ask your owner to justify the apportionment via the co-ownership regulations. If they invoke a secondary syndicate, demand proof of its legal existence.
• If you are a purchaser: When buying, have a notary or solicitor verify if the co-ownership includes secondary syndicates, to anticipate your obligations.

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