Commonhold shares: when a private garden is not a common part

Imagine: you have just bought a flat in Mougins, with a pretty private garden. You pay commonhold charges calculated on the basis of tantièmes (i.e. the share of ownership attributed to each unit). But you discover that your garden, although for your exclusive use, has been counted as a common part, which artificially inflates your charges. What can you do? The Court of Cassation, in a judgment of 6 November 2002, gives a clear answer: when the commonhold regulations grant a right of exclusive use over a common part, this share must be taken into account in the allocation of commonhold shares. If this is not the case, the owner can request a revision. But be careful, the judges must draw the consequences of their own findings. Analysis.

This decision, given under number 01-03.436, is a perfect illustration of the subtleties of commonhold law. It concerns an owner who challenged the allocation of commonhold shares for his unit, which included a garden considered as a common part but granted for exclusive use. The Court of Appeal had declared his claim inadmissible, considering that the allocation was unalterable except by unanimous agreement. But the Court of Cassation quashed this judgment, on the grounds that the Court of Appeal had not drawn the consequences of its own findings. In other words, if the garden is a common part, the share of the land must be allocated among all the co-owners, and the beneficiary of the right of exclusive use must take this into account in his commonhold shares.

For owners on the Côte d'Azur, where private gardens are common, this case law is crucial. It opens the way to challenging commonhold shares when the commonhold regulations are ambiguous or erroneous. But be careful: the procedure is complex and requires the assistance of a lawyer lawyer. In this article, we will analyse the facts, the reasoning of the Court, and give you practical advice to avoid or resolve this type of dispute.

The facts: a story like many others

Mr X was the owner of a unit in a commonhold located in Mougins. His unit no. 31 included a flat and, above all, an adjoining garden. In the commonhold regulations, this garden was described as a "common part" but granted for "exclusive use" to unit no. 31. In practice, Mr X could use the garden as if it were private, but legally, the land remained a common part belonging to all co-owners.

However, the commonhold shares attributed to unit no. 31 did not reflect this particularity. Mr X considered that the share corresponding to the area of the garden (which was a common part) had not been properly integrated into the calculation of his thousandths. Consequently, his commonhold charges were higher than they should have been, in his view. He therefore sued the syndicate of co-owners before the Tribunal de Grande Instance of Grasse to request a revision of the allocation of commonhold shares.

The court rejected his claim, and Mr X appealed. The Court of Appeal of Aix-en-Provence, in a judgment of 15 January 2001, declared his claim inadmissible. For the appeal judges, the allocation of commonhold shares resulted from the agreement of all co-owners when the commonhold regulations were established, and was therefore unalterable except by unanimous agreement to modify it. In other words, Mr X could not challenge it alone.

Mr X then appealed to the Court of Cassation. The Court of Cassation quashed the appeal judgment, on the grounds that the Court of Appeal had not drawn the consequences of its own findings. Indeed, it had noted that the garden was a common part, but that unit no. 31 benefited from a right of exclusive use over it. However, in this case, the share of ownership of the land (common part) must be allocated among all co-owners, and not only attributed to unit no. 31. The Court of Appeal should have examined whether this allocation complied with legal rules.

The reasoning of the court — dissected

The reasoning of the Court of Cassation is based on Article 6 of the Law of 10 July 1965 on commonhold. This article provides that common parts are those intended for the use of all co-owners, and that their share is allocated among the units according to their relative value. In short, each unit must be attributed commonhold shares corresponding to its share in the common parts.

In this case, the garden was a common part, but it was granted for exclusive use to unit no. 31. This means that Mr X had a private right of use over this garden, but the ownership of the land remained collective. Therefore, the share of this common part (the land of the garden) had to be allocated among all co-owners, and not only imputed to unit no. 31. If the commonhold regulations had attributed commonhold shares to unit no. 31 without taking this share into account, then the allocation was erroneous.

The Court of Appeal had nevertheless noted that the garden was a common part, but it did not deduce that the allocation of commonhold shares should be reviewed. It merely stated that the allocation was unalterable, which is true in principle, but only if it complies with the law. However, if the allocation is illegal, it can be challenged. The Court of Cassation therefore quashed the appeal judgment for lack of legal basis, meaning that the lower court judges had not sufficiently justified their decision.

What few people know is that the allocation of commonhold shares is not set in stone. It can be modified by a decision of the general meeting of co-owners, or by judicial means in case of error. undefined, I have encountered cases where owners in Cannes or Mougins challenged their commonhold shares because their unit included a terrace or private garden that was poorly valued. This case law is a powerful tool for them.

What this changes for you — concretely

If you are the owner of a unit in a commonhold and you benefit from a right of exclusive use over a common part (garden, terrace, parking), check your allocation of commonhold shares. If it does not take into account the share of this common part, you can request a revision. However, be careful: this request must be based on a material error or non-compliance with the law, and not on mere dissatisfaction.

Let's take a concrete example: in Cannes, an owner of a flat with a large private terrace (common part) pays €200 in charges per month. His commonhold shares are 300/1000. If the terrace represents 50 m² out of a total common area of 500 m², the share of the terrace is 10% of the common parts. Normally, his commonhold shares should include this share. If this is not the case, he can challenge and obtain a reduction in charges.

For buyers, be vigilant: when purchasing, ask to see the commonhold regulations and the descriptive state of division. Ensure that the commonhold shares are consistent with the rights of exclusive use. If in doubt, consult a lawyer lawyer before signing.

For tenants, this decision has less direct impact, but be aware that your landlord may have to revise recoverable charges if the commonhold shares are modified. You could see your charges decrease (or increase) accordingly.

Four tips to avoid this type of dispute

• Check the commonhold regulations before purchase: Do not rely solely on the stated area. Examine the allocation of commonhold shares and the rights of exclusive use. If a garden or terrace is described as a "common part with exclusive use", ensure that the corresponding thousandths are correct.
• Keep all documents: Keep a copy of the commonhold regulations, the descriptive state of division, and all minutes of general meetings. In case of a dispute, these documents will be essential to prove the error.
• Do not delay in acting: Challenging commonhold shares is subject to a limitation period. In commonhold, the period is 10 years from the publication of the regulations, but it may be shorter in case of a hidden defect. Consult a lawyer as soon as you suspect an anomaly.
• Prefer an amicable solution: Before starting proceedings, try to discuss with the syndic and other co-owners. A modification of commonhold shares can be voted on at a general meeting by a majority of votes (according to Article 26 of the 1965 Law). If you obtain agreement, you will avoid legal costs.

Further reading: related case law and developments

The Court of Cassation has confirmed this position in several subsequent judgments. For example, in a judgment of 3 July 2008 (No. 07-14.805), it recalled that the allocation of commonhold shares must take into account the relative value of the units, and that the fact that a unit benefits from a right of exclusive use over a common part must be considered. In other words, the case law is consistent.

On the other hand, some Courts of Appeal, such as that of Montpellier, have sometimes adopted a more restrictive position, considering that modification of commonhold shares requires unanimity of co-owners, except in case of material error. But the Court of Cassation has always ruled in favour of a more flexible interpretation, allowing revision in case of illegality.

In the future, we can expect courts to continue to require a precise analysis of the nature of rights of exclusive use. If you are in a similar situation, do not hesitate to consult a lawyer specialised in property law, like me, to assess your chances of success.

Summary and next steps

FAQ: 4 practical questions

• Q: Can I challenge my commonhold shares if my garden is considered a common part? A: Yes, if the commonhold regulations have not properly integrated the share of this common part into your commonhold shares. You must take legal action or request a vote at a general meeting.
• Q: What is the deadline to challenge? A: The limitation period is 10 years from the publication of the commonhold regulations. But in case of a hidden defect, the period runs from the discovery of the defect.
• Q: How much does a procedure cost? A: Lawyer's fees vary, but an initial 30-minute consultation at €45 can allow you to assess the situation. A full procedure can cost between €2,000 and €5,000, depending on complexity.
• Q: What if the general meeting refuses to modify the commonhold shares? A: You can refer the matter to the judicial court to have the error recognised. The judge can order the modification if it is justified.

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