Unusual neighbourhood disturbance in co-ownership: the owners' association can take action (Cass. civ., 11 May 2017)

Imagine: you are an owner in Martigues, in a quiet residence. For six months, your upstairs neighbour, also a co-owner, has been hosting loud parties every weekend. The noise nuisance prevents you from sleeping, and attempts at dialogue fail. You alert the managing agent, who seems powerless. What can they do? Sue the co-owner for non-compliance with the co-ownership regulations? But if those regulations are silent on noise, does the managing agent have other weapons?

This is the question raised by this decision of the Court of Cassation of 11 May 2017. France's highest court has ruled: an owners' association can take action against a co-owner on the basis of unusual neighbourhood disturbance, even if that disturbance does not directly violate the co-ownership regulations. A major advance for the management of neighbourhood conflicts in co-ownership.

In this article, we break down the facts, the judges' reasoning and the practical implications for you, whether you are an owner, tenant or property professional. Whether you are in Salon-de-Provence or elsewhere, these rules apply throughout France.

The facts: a story that happens every day

Mr X owns a flat in a co-ownership in Aix-en-Provence. Since moving in, his activities have caused nuisances to his neighbours: excessive noise, smells, occupation of common parts… The owners' association, exasperated, decides to sue him on the basis of unusual neighbourhood disturbance. But Mr X raises a significant argument: the association has no standing to sue on this basis, because neighbourhood disturbances are matters between neighbours, not contractual relations between the association and co-owners. Only an individual co-owner could sue, according to him.

The Aix-en-Provence Court of Appeal agreed with him in 2015: it declared the association's claim inadmissible. For it, the association can only act on the basis of the co-ownership regulations or the law, not on that of unusual neighbourhood disturbance. The association appealed to the Court of Cassation. The case went up to the Court of Cassation, which overturned the appeal judgment on 11 May 2017.

A twist: the High Court recalled that unusual neighbourhood disturbance is a general principle of law, applicable to all, including in co-ownership. The association, whose mission is to ensure the tranquillity of the building, can therefore invoke it. The inadmissibility argument is dismissed.

The court's reasoning — broken down

The Court of Cassation relies on the principle that 'no one must cause to another a disturbance exceeding the normal inconveniences of neighbourhood'. This principle, although not written in a statutory article, has long been recognised by case law on the basis of Article 1240 of the Civil Code (formerly 1382), which requires compensation for damage caused by one's fault. Here, the unusual disturbance is considered a fault.

The judges on the Quai de l'Horloge affirm that this principle applies 'to co-owners and, more generally, to any person'. Consequently, the owners' association, whose purpose is to defend collective interests, can take action to stop an unusual disturbance emanating from a co-owner. It does not matter that the co-ownership regulations say nothing about noise or smells: the unusual disturbance is an autonomous concept.

The Court rejects the distinction between contractual action (based on the regulations) and tortious action (based on unusual disturbance). The association can combine both bases or choose the most favourable. This confirms previous case law (notably Cass. civ. 3e, 14 November 2012, No. 11-24.622), but also clarifies: the association does not need to prove a breach of the regulations to act.

The lower courts will simply have to verify whether the disturbance exceeds the normal inconveniences of neighbourhood. For example, occasional footsteps are normal; DIY work every evening until midnight is not.

What this changes for you — practically

For landlord owners: if your tenant causes disturbances, the association can now sue you directly, even if your lease does not mention nuisances. Be vigilant: you could be ordered to pay damages (often €500 to €3,000 depending on severity) and to stop the disturbance under a penalty (e.g. €100 per day of delay).

For tenants: you are not immune to an action by the association, even if you are not the owner. Unusual neighbourhood disturbance is a personal fault. If you are a victim, you can also sue individually, but the association can do it for you, which pools the costs.

For co-owners: if you suffer nuisances, contact the managing agent. They can now act without waiting for a vote at a general meeting? Caution: the managing agent must be authorised by the management board or the general meeting to bring legal proceedings. But once authorised, they have a free hand.

For buyers: before buying a property in co-ownership, find out about the atmosphere. In Salon-de-Provence, I saw a buyer discover after the sale that the upstairs neighbour was an amateur drummer playing every evening. Without this case law, the association could not have acted. Today, it can.

A concrete example: in a recent case in Martigues, a co-owner was ordered to pay €2,500 in damages for hosting noisy parties for a year, and €150 per day of delay if the nuisances persisted. The association was able to act thanks to this decision.

Four tips to avoid this type of dispute

• Before buying, ask the managing agent about the history of conflicts: request the minutes of the last general meeting, any formal notices for neighbourhood disturbances. A simple call to the caretaker can also inform you.
• If you are a victim, keep a log of nuisances: date, time, duration, type of disturbance. Have it recorded by a bailiff (cost: around €200) or by witness statements. The more precise you are, the better your chances of proving the abnormal nature.
• Before going to court, try mediation: the managing agent can propose conciliation. In Salon-de-Provence, free mediation is offered by the town hall. Often, a simple reminder of the law suffices.
• Consult a specialist lawyer before any action: the managing agent must comply with procedural rules (authorisation, prior formal notice). A poorly initiated action may be declared inadmissible, and the costs remain with the association.

Further reading: related case law and developments

This decision is part of a line favourable to the association's action. Already in 2012, the Court of Cassation (3rd Civ., 14 November 2012, No. 11-24.622) had accepted that an association could act on the basis of unusual disturbance, but the 2017 decision confirms it forcefully. More recently, the Court specified that the association can also claim damages for the moral prejudice suffered by the community of co-owners (Cass. 3rd Civ., 5 July 2018, No. 17-20.013).

The trend is therefore towards expanding the powers of the association. In the future, we could see actions for environmental disturbances (light pollution, barbecue smells) or for disturbances linked to seasonal rentals (Airbnb). Judges have full discretion to assess the abnormal nature, which leaves room for interpretation.

For property professionals, this case law is a tool for managing co-ownerships. It allows conflicts to be resolved without amending the regulations, which is often lengthy and difficult.

Key points to remember

FAQ:

• Can the association act without authorisation from the general meeting? No, the managing agent must be mandated. But the general meeting can give a general authorisation for this type of action.
• What is the time limit to act? The action is barred after 5 years from the manifestation of the disturbance. But it is advisable to act quickly to avoid prescription.
• Can I be ordered to pay if I am not the direct perpetrator? Yes, if you are the owner and your tenant causes the disturbance, you can be held liable (vicarious liability).
• What are the costs of legal proceedings? Expect €1,500 to €3,000 in lawyer's fees, plus bailiff and procedural costs. But the faulty co-owner may be ordered to reimburse them.
• What if the disturbance ceases before judgment? The action may become moot. But you can claim damages for the harm suffered.

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