Works in condominiums: clause authorising works without a general meeting deemed unwritten

Imagine: you are an owner in Concarneau, you have just bought a flat in a small condominium from the 1970s. The regulations state that each co-owner can modify the common parts adjoining their unit, without asking for the neighbours' opinion. Reassuring, isn't it? Except that your downstairs neighbour one day decides to pierce the common ceiling to install a fireplace, and you are left with noise, dust and a falling property value. What can you do?

This question is asked by many owners. Can a condominium regulation really authorise a co-owner to act alone on the common parts? The answer is no, and it comes from the French Supreme Court. In a judgment of 11 May 2005, the High Court ruled: any clause that allows a co-owner to carry out works affecting the common parts without the agreement of the general meeting is deemed unwritten. In other words, it is void and of no effect.

This decision, handed down in a Parisian case, has concrete consequences for all co-owners, whether in Audierne, Quimper or elsewhere. It reminds us of a fundamental principle: the common parts belong to everyone, and their modification cannot be decided unilaterally. Let's delve into the details.

The facts: a story that happens every day

The case began in Paris, rue Théodule Ribot. A co-owner, owner of several units in a building, decided to merge them to form a large flat. To do this, he undertook works: he removed the access to the service staircase, sealed off the rubbish chute, and incorporated into his flat the power cables that previously ran through the common parts. Problem: these alterations affected common elements. The owners' association was not happy and sued the owner.

The co-owner defended himself by invoking the condominium regulations, which contained a clause authorising him to carry out works on the common parts without the agreement of the general meeting. 'It's written in the regulations, so it's valid,' he argued. The first-instance court ruled in his favour. But the Paris Court of Appeal overturned that judgment: it held that the clause was contrary to public policy and should be deemed unwritten. The co-owner appealed to the Supreme Court.

The Supreme Court upheld the appeal judgment. It recalled that the common parts are the undivided property of all co-owners. Any clause that allows a single co-owner to carry out works on them without collective agreement is abusive and void. The co-owner therefore had to restore the premises to their original state, subject to damages. A case that could have been avoided if the regulations had been better drafted, and if the co-owner had consulted his neighbours before acting.

The reasoning of the court — dissected

To understand this decision, we must start from the law of 10 July 1965, which governs condominiums. Article 2 defines the common parts as those that are for the use of all co-owners. Article 25 requires a simple majority (majority of votes of all co-owners) to authorise works affecting these common parts. Finally, Article 43 provides that any clause contrary to the law is deemed unwritten. It is on this last article that the judges rely.

The Supreme Court reasoned in two stages. First, it noted that the disputed works (removal of access, modification of service ducts) affected common parts. Next, it verified that the clause in the condominium regulations authorised them without the agreement of the general meeting. However, such a clause is contrary to Article 25 of the 1965 law, which requires a collective decision. It is therefore deemed unwritten, meaning it never legally existed.

This is not a reversal of case law: the Supreme Court had already issued similar decisions in the 1990s. But the 2005 judgment specifies that this nullity is absolute: it does not matter that the clause was accepted by all co-owners at the time of purchase. The co-owner cannot hide behind an illegal text. The judges thus recall that the protection of the common parts is a matter of public policy, meaning it cannot be derogated from by contract.

In practice, this decision prevents 'powerful' co-owners (those owning several units) from imposing their will on others. It ensures that any modification of the common parts is discussed and voted on in a general meeting. A victory for condominium democracy.

What this changes for you — concretely

If you are an owner, this decision protects you. You cannot be forced to suffer works on the common parts without having a say. If your neighbour wants to install an antenna on the roof, modify the facade or pierce a load-bearing wall, he must obtain the agreement of the general meeting. Failing that, you can demand restoration and damages.

If you are a tenant, you are not directly concerned, but your landlord must comply with the condominium rules. An owner who carries out illegal works may be forced to restore the premises by the syndic, which could disturb your peaceful enjoyment. Report any abuse to the syndic.

If you are a buyer, check the condominium regulations before purchasing. A clause authorising works without a general meeting is a red flag: it can lead to disputes and costs. Get assistance from a specialist lawyer. In Concarneau, for example, a client bought a flat with such a clause, and the neighbour wanted to block a common corridor. Result: €8,000 in legal fees to have the clause annulled and the premises restored. A cost that could have been avoided.

In case of a dispute, you must act quickly. The limitation period for contesting illegal works is five years from their completion. If you let it happen, you risk losing your rights. Do not hesitate to consult a lawyer at the first signs.

Four tips to avoid this type of dispute

• Check your condominium regulations: Read the clauses relating to works carefully. If a clause authorises modifications of the common parts without a general meeting, know that it is void. Have it amended at a general meeting to avoid any ambiguity.
• Never carry out works on the common parts without a vote: Even if your regulations allow it, you take a risk. Ask for prior authorisation from the general meeting. In an emergency (e.g., water leak), notify the syndic and carry out the necessary works, but regularise afterwards.
• Consult a lawyer before buying: A professional can identify abusive clauses and advise you on the risks. The cost of a consultation (€45 with Maître Zakine) is negligible compared to litigation costs.
• Act quickly in case of a dispute: If a neighbour undertakes works without authorisation, send a formal notice to the syndic. If nothing is done, seize the judicial court. Do not let the situation escalate.

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

Further reading: related case law and developments

This decision is part of a consistent line of the Supreme Court. Already in 2002, in a judgment of 13 November (No. 01-01.932), it had ruled that any clause in the condominium regulations contrary to Article 25 of the 1965 law is deemed unwritten. The 2005 case law only confirms this principle, applying it to works affecting the common parts.

Since then, the trend has strengthened. The ALUR law of 2014 amended Article 43 to specify that all clauses that undermine the purpose of the common parts are deemed unwritten. Courts are increasingly strict. For example, a clause prohibiting planting flowers on a common terrace was annulled, as it prevented normal use. The future points towards greater protection of minority co-owners.

However, beware: some clauses may be valid if they are limited in time or if they concern common parts used privately (such as a private courtyard). The boundary is sometimes blurred. Hence the importance of a specialist lawyer.

What you absolutely must remember

FAQ:

Q: Can I carry out works in my flat that affect the common parts?
R: Yes, but only with authorisation from the general meeting. Even if the regulations allow it, the clause is void. Ask for a vote.

Q: What should I do if my neighbour has carried out works without a general meeting?
R: Notify the syndic by registered letter. If it does not act, seize the court. You can demand restoration and damages.

Q: Does this decision apply to all buildings?
R: Yes, to all condominiums governed by the 1965 law. Buildings owned by a single owner (mono-ownership) are not concerned.

Q: What is the cost of legal proceedings?
R: Count between €2,000 and €5,000 in lawyers' fees, depending on complexity. Expert fees may be added. Prevention is better than cure.

Q: Can I challenge an abusive clause even if I signed the regulations?
R: Yes, because the nullity is a matter of public policy. You can raise it at any time, even years after purchase.

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