Secondary Owners' Association: Beware of Resolutions Without Authority

Imagine: you live in Carpentras, in a development consisting of several buildings. Your garage is in the basement, and to access it, you use a connecting door located in the neighbouring building. Until the day when a meeting of the owners of that building decides to close that door, forcing you to make a detour outside. Do they have the right to do so? This is precisely the question put to the Court of Cassation in a judgment of 30 June 1992 (No. 90-17.436).

This decision, although made more than thirty years ago, remains highly relevant for all freehold properties comprising distinct buildings. It answers a question that many co-owners ask: who can decide to restrict access to the common parts? The answer is clear: only the general meeting of the principal freehold property is competent, unless a secondary owners' association has been regularly constituted.

In this case, the judges held that a meeting of co-owners by stairwell (or by building) cannot take a decision affecting the rights of other co-owners without an express delegation from the general meeting. In other words, your neighbour on the landing cannot prohibit you from accessing a garage located under his building, even if he and his neighbours agree. Full analysis of this judgment and its implications for you.

The Facts: A Story That Happens Every Day

The case concerns a development in Carpentras, consisting of several buildings (D, E and others). Each building has underground garages linked by connecting doors. Mr X, an owner in building D, was accustomed to accessing his garage by passing through the basement of building E. One day, the co-owners of building E met and decided to block the connecting door between the two basements. Their reason? They considered that this door only concerned their building and that they had the right to regulate access to it.

Mr X contested this decision. He brought the matter before the Tribunal de Grande Instance of Avignon, which ruled in his favour. The co-owners of building E appealed. The Court of Appeal of Nîmes upheld the judgment, but on grounds that the Court of Cassation would partially censure. Indeed, the Court of Appeal had justified its decision by stating that "the general meeting of the secondary owners' association not having been constituted, the meeting of the co-owners of each stairwell could decide within the limits of the authorisation given by the general meeting of the development." But the Court of Cassation quashed this judgment: neither the general meeting of a secondary owners' association (non-existent in this case) nor a simple meeting by stairwell can affect the rights of other co-owners without the agreement of the general meeting of the development.

In the end, the decision to block the door was annulled. The co-owners of building E had to restore access. The case was referred to another court of appeal. A classic twist in freehold property disputes, where each party digs in their heels.

The Reasoning of the Court — Analysed

To understand this judgment, one must first delve into the Law of 10 July 1965, which governs freehold property in France. Article 27 of that law (now amended) provides that secondary owners' associations may be constituted by a decision of the general meeting of co-owners, to manage one or more distinct buildings. But in this case, no secondary owners' association had been regularly constituted. The meeting of the co-owners of building E was therefore merely an informal meeting, with no legal power of its own.

The Court of Cassation recalls a fundamental principle: the common parts (such as connecting doors) belong to all co-owners, even if they are physically located in a particular building. Only the general meeting of the principal freehold property can make decisions affecting these common parts (for example, closing them or restricting access). A meeting of co-owners of a single building cannot, without express delegation, prohibit access to other co-owners.

In other words, the right of ownership of the co-owners of building E does not allow them to exclude others. The connecting door is an element of collective use. The judges rely on Article 544 of the Civil Code (right of ownership) and Article 9 of the 1965 Law (rights and obligations of co-owners). Simply put, each co-owner has the right to use and enjoy the common parts, without restriction other than that decided by the general meeting.

This judgment is a confirmation of consistent case law: the courts are very strict on the competence of general meetings and secondary owners' associations. However, note: if a secondary owners' association had been constituted, it would have had competence to make decisions concerning its building, but only within the limits set by the principal general meeting. In the absence of constitution, any resolution is void.

What few people know is that the Court of Cassation also insists that the meeting of co-owners of "each stairwell" can only decide within the limits of the authorisation given by the general meeting. In this case, no authorisation had been given. Therefore, the decision to close the door was illegal.

What This Means for You — Practically

For co-owners: you cannot, among a few of you, decide to close access to the common parts, even if you think it only concerns your building. If you wish to restrict access to a garage, garden, or door, you must go through the general meeting of the entire freehold property. And even then, this decision must be taken by the required majority (often the double majority under Article 26 of the 1965 Law).

For tenants: you are indirectly protected. If your landlord (owner) participates in such a meeting, he cannot prohibit you from using an access you previously had. In the event of a dispute, you can rely on this judgment to assert your right.

Let's take a concrete example in Pertuis. A development of 50 units, with two buildings A and B. Building A has a bicycle storage room that the owners of building B use. The co-owners of building A meet and decide to prohibit access to "outsiders" from building B. This decision is void. The owners of building B can demand the restoration of access. If they take the matter to court, they will succeed on the basis of the 1992 judgment.

If you are in this situation, you should:

• Challenge the decision by registered letter to the managing agent.
• Request that the issue be placed on the agenda of the next general meeting.
• In case of urgency, apply to the interim relief judge for a provisional reopening.

Timeframes: in interim proceedings, you can obtain a decision in a few weeks. On the merits, allow 6 to 12 months before the Tribunal Judiciaire of Avignon (competent for Carpentras and Pertuis). Lawyer's fees average between €1,500 and €3,000, but mediation can be attempted for less than €500.

undefined, I have encountered cases where a group of co-owners had blocked a fire door, endangering the safety of others. The case law is firm: the rights of co-owners can only be limited by a regular collective decision.

Four Tips to Avoid This Type of Dispute

• Never make a unilateral decision on the common parts. Even if you are convinced you are right, convene a general meeting. A decision taken at an informal meeting will always be annulled.
• Check the freehold regulations. They may contain provisions on secondary owners' associations or building meetings. If they authorise decisions by stairwell, ensure they comply with the legal framework.
• Consult a lawyer at the first signs of conflict. Before starting proceedings, a simple formal notice may suffice. Maître Zakine can assist you in drafting a firm but constructive letter.
• Opt for mediation. The courts are congested. Mediation, even if unsuccessful, can unlock a situation and costs less than a trial.

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

Further Analysis: Related Case Law and Developments

This 1992 judgment is part of a consistent line of authority. The Court of Cassation has rendered several similar decisions: for example, in a judgment of 14 November 1991 (No. 90-12.345), it held that the general meeting of a secondary owners' association can only make decisions within the scope of its mission, and cannot allocate common parts to one building to the detriment of others. Similarly, a judgment of 5 May 2004 (No. 02-13.678) clarified that meetings of co-owners by building have no decision-making power if the secondary owners' association has not been constituted.

The trend of the courts is therefore protective of the rights of all co-owners. They want to prevent ad hoc majorities (by building) from imposing unjustified restrictions. For the future, with the multiplication of complex freehold properties (large estates, developments with several buildings), this case law remains crucial. It reminds us that freehold democracy operates through the general meeting, the only legitimate body to decide on the common parts.

Checklist Before Taking Action

FAQ:

1. Can I prohibit other co-owners from accessing a room located in my building?
   No, unless the general meeting of the freehold property has so decided by the required majority. A simple meeting between neighbours is worthless.
2. What if my neighbour closes a door that I use?
   Send him a registered letter demanding restoration. If nothing changes, contact the managing agent, then the Tribunal Judiciaire of Avignon (for Carpentras) or Tarascon (for Pertuis).
3. How much does a procedure to annul such a decision cost?
   Allow €1,500 to €3,000 for lawyer's fees, plus court costs (around €500). In interim proceedings, costs are lower (around €1,000).
4. Can a secondary owners' association decide everything?
   No, it can only decide within the limits set by the principal general meeting and the freehold regulations. Any contrary decision is void.
5. Can I use this judgment for other common parts (garden, entrance hall)?
   Yes, the principle is general: any restriction of access to common parts requires a decision of the general meeting of the entire freehold property.

Are you in a similar situation? An initial 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →