Co-ownership: Why a Clause for Progressive Application of the Regulations is Illegal

Imagine you are purchasing a flat in a new residential development in Biscarrosse, in the heart of the Landes region. You sign the deed of sale, receive the keys, and happily discover your new home. But a few months later, you receive a service charge bill (the invoice for common expenses) that seems abnormally high. Upon checking, you notice that some owners in the same development pay less than you, even though their flats are similar. How is this possible?

This situation, more common than one might think, often originates from a particular clause in the co-ownership regulations (the document that governs communal life in a building). Some developers, particularly in new-build projects, insert provisions stating that the regulations apply progressively, as the flats are sold. But is this legal?

The Court of Cassation, in a decision dated 30 June 1998, answered this question clearly. This decision, which is now authoritative, reminds us of a fundamental principle of co-ownership law: the unity and immediacy of the application of the regulations. Let's explore together what this means in practice for you, whether you are an owner, tenant, or real estate professional.

The facts: A story that happens every day

Mr Dupont, owner of a flat in a recent building in Mont-de-Marsan, receives his first allocation of charges (the building's common expenses) in 1994. Upon examining the documents, he notices an anomaly: his share (his proportional part) seems to be calculated on a different basis than that of his neighbours. Intrigued, he delves into the co-ownership regulations, that often dense document that few owners read carefully.

He then discovers a clause stating that the provisions of the regulations, particularly those concerning the allocation of charges, apply "as the building is completed". undefined that the first buyers saw their share calculated on a provisional basis, which evolved with subsequent sales. Mr Dupont, who bought later, ends up with a higher contribution than some of his neighbours for equivalent floor areas.

Deeming this situation unfair, Mr Dupont brings the matter before the tribunal d'instance (the court with jurisdiction over co-ownership disputes). He challenges the decision of the general meeting of co-owners on 17 April 1993, which had endorsed this progressive allocation. The developer, who had become a co-owner of several unsold units, defends the clause, arguing that it allows flexible management during the marketing phase. The court rules in favour of Mr Dupont, but the developer appeals. The court of appeal confirms the first judgment, and the case ends up before the Court of Cassation, the highest French judicial court.

undefined in Mont-de-Marsan, I have encountered similar cases, particularly in new developments near the lake in Biscarrosse, where owners discovered with astonishment disparities in charges sometimes amounting to 20 to 30% for identical flats. These situations always create significant tensions between neighbours and can burden the life of the co-ownership for a long time.

The court's reasoning — explained

The Court of Cassation, in its judgment of 30 June 1998, examined the legality of this progressive application clause. Its reasoning is based on a fundamental text: the Law of 10 July 1965 establishing the status of co-ownership of built properties. This law, still in force, constitutes the foundation of co-ownership law in France.

The judges recalled that Article 8 of this law states that "the co-ownership regulations determine [...] the share of the common parts attributable to each unit". In other words, the allocation of charges must be fixed definitively and proportionally from the outset. The contested clause, by providing for progressive application, created an unclear situation where the shares were not stabilised, contrary to what the law requires.

The Court also emphasised that this clause was contrary to the principle of equality among co-owners. Indeed, how can one justify that two owners of similar units bear different charges simply because they bought at different times? This unequal treatment is incompatible with the spirit of the 1965 Law, which aims to organise a balanced community.

The developer had nevertheless put forward a practical argument: during the marketing phase, not all units are sold yet, and a definitive allocation might seem premature. But the Court dismissed this argument. It recalled that the law provides mechanisms to manage this transitional period, notably through provisions on charges (advance payments) that can be adjusted later, but never through a clause that calls into question the very principle of allocation.

In short, the Court of Cassation considered that this clause created an unacceptable legal uncertainty. It therefore ruled that it was "contrary to the provisions of the Law of 10 July 1965 and must consequently be deemed unwritten". This legal expression means that the clause is considered as never having existed and therefore cannot produce any effect.

What this changes for you — in practice

But what exactly does this change in your daily life? This decision has very practical implications depending on your situation.

If you are a co-owner in a recent building, particularly in Biscarrosse where many new developments are emerging, you should check your co-ownership regulations. A progressive application clause, if it exists, is void. undefined that your share of charges must be recalculated based on the definitive basis provided for in the regulations, without considering when you purchased. Let's take a numerical example: if your 70 m² flat in Mont-de-Marsan represents 1.5% of the thousandths (the unit of measurement for shares), you must pay 1.5% of the charges, even if your upstairs neighbour, with the same flat, bought six months before you and initially paid 1.2%.

If you are a buyer of a new property, this decision protects you. You should not accept a progressive application clause in the co-ownership regulations. When signing the deed of sale, insist that your notary checks this point. undefined, I have seen buyers who, after the fact, had to initiate proceedings to have their share corrected, with sometimes significant back payments of charges over several years.

If you are a tenant, be aware that this decision concerns you indirectly. Indeed, some charges can be passed on to the rent (recoverable charges). An unfair allocation among owners can create imbalances that, in the long run, also affect tenants. Your landlord must ensure that the co-ownership functions correctly.

However, note: this decision does not mean that all transitional clauses are prohibited. Temporary arrangements for managing common areas during final works are possible, but they must not call into question the principle of definitive allocation of charges.

Four tips to avoid this type of dispute

• Read the co-ownership regulations carefully before buying: Do not rely solely on verbal explanations from the developer or estate agent. Take the time to read the document, and particularly the articles concerning the allocation of charges. If you see terms like "progressive application", "as and when", or "adaptation depending on sales", be wary.
• Have it checked by a professional: A notary or lawyer specialising in property law can examine the co-ownership regulations and identify problematic clauses. In Mont-de-Marsan as elsewhere, this prior verification can save you years of legal proceedings.
• Insist on a clear allocation from the first general meeting: If you are among the first buyers in a new co-ownership, insist that the definitive allocation of thousandths be adopted at the first general meeting. Do not leave this issue pending.
• Keep all documents: Keep a copy of all documents related to your purchase, from the draft co-ownership regulations to the minutes of general meetings. These documents will be essential if a dispute arises.

Further reading: related case law and developments

The 1998 decision is part of consistent case law. Already in 1984, the Court of Cassation had ruled that a clause providing for a revision of shares after all units were sold was unlawful (Cass. 3rd civ., 6 June 1984). It had recalled that the allocation must be fixed definitively in the co-ownership regulations.

More recently, the courts have extended this principle to other unclear clauses. For example, a clause stating that charges would be allocated "according to actual use" of the common areas was annulled, as it created similar uncertainty (CA Paris, 15 September 2015). The trend is clear: judges ensure legal certainty and equality among co-owners.

What few people know is that this case law also protects developers themselves. Indeed, an unlawful clause can lead to partial nullity of the co-ownership regulations, which can complicate the management of the building and create disputes with buyers. It is therefore better to comply with the law from the outset.

For the future, this decision remains more relevant than ever. With the development of new-build projects in attractive areas like the Landes coast, the temptation to create flexible clauses still exists. But the case law of the Court of Cassation is firm: no compromise on the fundamental principles of co-ownership.

What you absolutely must remember

• A clause for progressive application of the co-ownership regulations is illegal: It is contrary to the Law of 10 July 1965 and must be considered as never having existed.
• The allocation of charges must be fixed definitively from the outset: Your share should not depend on when you bought your property.
• If you discover such a clause in your regulations: You can request its annulment and a regularisation of charges paid since you entered the co-ownership.
• Time limits for action: In principle, you have 5 years from discovering the harm to initiate legal proceedings. But it is better to act quickly.
• The amounts at stake: In cases I have handled in Biscarrosse, regularisations could amount to several thousand euros over 3 to 5 years, depending on the size of the co-ownership and the amount of charges.

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