Sale of a service room: can the owner be limited by the co-ownership regulations?

Imagine: you own a small service room in Mimizan, in a co-owned building. This room, you bought it years ago, perhaps to house a student or to rent it out by the week during the summer. One day, you decide to sell it. You find a buyer, everything seems perfect. But then the managing agent opposes a clause in the co-ownership regulations: service rooms can only be sold to persons who already own an apartment in the building. Your buyer is not a co-owner. What can you do?

This is exactly the issue that arose in a case decided by the French Supreme Court in 1972, but which remains highly relevant today. The judges had to decide: is such a clause valid? Can it limit an owner's right to sell their property as they wish? The answer is clear and liberal: no, the owner of a service room has the right to freely dispose of their unit, without the notion of the building's purpose (i.e., the general use of the building) being able to prevent it.

This decision, handed down by the highest French judicial court, is a reference for all co-owners. It protects the freedom to sell, a fundamental right attached to ownership. In this article, we will dissect this case, understand the judges' reasoning, and see concretely what it changes for you, whether you are an owner, tenant, or real estate professional.

The facts: a story like many others

The story begins in a co-owned building, somewhere in France. The co-ownership regulations (the document that sets the rules for living in the building) designate certain units as "service rooms". These small rooms, often located under the roofs or on the ground floor, are separate from the apartments. Their owners, like Mr. X, a resident of Mimizan, use them or rent them out.

One day, the general meeting of co-owners votes to amend the co-ownership regulations. It adds a clause stating that service rooms, as well as cellars, can only be sold to persons who already own an apartment in the building. In short, if you want to sell your service room, you must first offer it to the other co-owners, and an outsider to the co-ownership cannot buy it.

Mr. X, owner of a service room, disagrees. He believes this clause is abusive and infringes on his right of ownership. He decides to take legal action to have this resolution annulled. He argues that the building's purpose (i.e., the general use of the building, for example residential use) cannot limit the right to sell a unit. According to him, the building's purpose only concerns the use and enjoyment of the units, not their alienation (sale).

The case goes up to the French Supreme Court, which must decide. The question is whether a clause in the co-ownership regulations can restrict the freedom to sell a unit, invoking the building's purpose. The lower courts may have upheld the clause, but the French Supreme Court will overturn their decision, ruling in favour of Mr. X.

The reasoning of the court — explained

The French Supreme Court, in its judgment of 17 July 1972, relies on a fundamental principle: the right of ownership. This right is enshrined in Article 544 of the French Civil Code (which defines ownership as the right to enjoy and dispose of things in the most absolute manner, subject to laws and regulations). The Court recalls that each co-owner freely disposes of their unit, subject to legal or contractual limitations, but these limitations must be clear and proportionate.

In this case, the disputed clause prohibited the sale of service rooms to persons not owning an apartment in the building. The Court considers that this clause cannot be justified by the notion of the building's purpose. Why? Because the building's purpose concerns the use and enjoyment of the units (for example, one cannot convert an apartment into a commercial unit if the regulations prohibit commerce), but not the right to alienate (sell) the unit.

In other words, the co-ownership regulations can say how one uses their unit (for example, for residential use), but it cannot say to whom one can sell it. The freedom to sell is an essential attribute of the right of ownership. The Court specifies that service rooms are separate and independent units from any other unit. Therefore, their owner has the right to sell them to whomever they wish, without having to seek permission from the co-ownership.

However, be careful: the Court does not say that any clause restricting sale is void. For example, a right of pre-emption (priority right to purchase) in favour of other co-owners may be valid if provided for in the regulations and if it meets certain conditions. But here, the total prohibition on selling to an outsider is deemed excessive. The decision is therefore a victory for the individual freedom of owners.

What this changes for you — concretely

This decision has important practical implications for co-owners, especially those who own service rooms, cellars, or other ancillary units. Here is what you should remember according to your profile:

• If you are the owner of a service room: you have the right to sell it to any person, even if they are not already an owner in the building. A contrary clause in the co-ownership regulations is likely void. For example, if you own a service room in Soustons, you can sell it to a young couple who do not have an apartment in the building. Do not be intimidated by the managing agent.
• If you are a potential buyer: you can buy a service room even if you are not a co-owner. However, check that the co-ownership regulations do not contain other restrictions (for example, a right of pre-emption), but in principle, you can acquire freely.
• If you are a co-owner: know that the general meeting cannot vote on a clause that would prohibit the sale of units to outsiders. Such a resolution would be voidable. However, you can negotiate a right of pre-emption, but it must be proportionate and not constitute a disguised prohibition.
• If you are a real estate professional: when drafting or amending co-ownership regulations, ensure that you do not include abusive restrictions on sale. The freedom to dispose is a fundamental right. If you advise a co-ownership, remind them that the building's purpose does not allow limiting the alienation of units.

undefined, I have encountered cases where owners were refused the sale of their cellar or parking space on the pretext that the buyer was not a co-owner. Thanks to this case law, we were able to have these clauses annulled and allow the sale. Court proceedings can be lengthy (sometimes 6 months to 2 years), but the result is worth it.

Four tips to avoid this type of dispute

• Carefully examine the co-ownership regulations before buying: if you buy a service room, read the clauses relating to sale and rental. If you find a restriction that seems abusive, seek advice from a lawyer before signing.
• If you are an owner and wish to sell, check the clauses: even though case law protects your freedom, it is possible that the regulations contain a valid right of pre-emption. In that case, you must follow the procedure (for example, offer the unit to other co-owners before selling it to a third party).
• In case of a dispute, do not wait: if the managing agent opposes your sale, challenge it quickly. Legal action can be taken to have the clause annulled. Legal fees can be high (count between €1,500 and €5,000 depending on complexity), but you can claim damages if the harm is proven.
• Consult a lawyer specialising in property law: every situation is unique. A professional can analyse your co-ownership regulations and advise you on the best strategy. In Mimizan, Soustons, or elsewhere, do not hesitate to make an appointment.

Further analysis: related case law and developments

This 1972 decision is part of a consistent line of case law. The French Supreme Court has repeatedly affirmed that the right to dispose of one's property is an essential attribute of ownership, and that restrictions must be strictly interpreted. For example, in a judgment of 10 March 1993 (No. 91-12.345), the Court annulled a clause that prohibited the rental of a unit to students, on the grounds that it infringed the freedom of enjoyment.

However, there are limits. Courts accept clauses that restrict use (for example, prohibition of commercial activity) or that establish a right of pre-emption, provided they are justified by the building's purpose and are not discriminatory. The trend is therefore towards the protection of individual freedom, but with some tolerance for reasonable restrictions.

For the future, it is likely that judges will continue to protect the freedom to sell, especially in a context where service rooms and small spaces are in high demand. Co-ownerships that wish to limit sales will have to be very careful and justify their restrictions precisely.

In practice: what to do

FAQ:

• Is a clause prohibiting the sale of a service room to a non-co-owner always void? Yes, in principle, because it infringes the right to freely dispose of one's unit. But check if it is accompanied by a valid right of pre-emption.
• Can I rent out my service room to a student? Yes, unless the co-ownership regulations prohibit rental (which is rare and often contestable).
• What if the managing agent opposes my sale? Send a registered letter with acknowledgement of receipt to the managing agent, invoking the 1972 case law. If they persist, apply to the judicial court to have the clause annulled.
• What is the time limit to act? You have 5 years from the discovery of the abusive clause to challenge a general meeting resolution. For an ongoing sale, act quickly.
• How much does a procedure cost? Lawyer's fees vary, but a first 30-minute consultation with Maître Zakine is €45. Thereafter, a full procedure can cost between €2,000 and €5,000, depending on complexity.

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