Reference Decision: cc • No. 19-22.835 • 2021-05-27 • View the decision →
Imagine you are the owner of a plot of land in Nice, in the Cimiez district. You own two adjoining parcels, one of 500 m² and the other of 300 m². You dream of building a small building of four apartments spanning these two parcels. However, the question arises: must these two parcels first be merged into a single plot before creating the condominium? This is the question many owners on the French Riviera ask themselves, where land is often fragmented and property projects complex.
This query is not merely theoretical. It can stall your project for months, even years, and generate considerable legal costs. undefined in Grasse, I have seen cases where this simple technical question delayed constructions by over two years, with additional costs exceeding €50,000.
The Court of Cassation has now definitively ruled on this matter in a judgment of 27 May 2021. But what exactly does this change for you, whether you are an owner, developer or notary? And, most importantly, how can you avoid the pitfalls that led to this litigation?
The Facts: A Common Occurrence
Mr. Dupont, an owner in Metz, Moselle, had owned two adjoining parcels for several years. These two plots were situated within the same land registration district (administrative division of the cadastre) and belonged to the same rights holder — in this case, Mr. Dupont himself. No particular encumbrances (mortgage, easement, right of way) burdened these parcels.
Mr. Dupont decided to construct a building subject to the condominium regime (a legal regime dividing a building into units owned by different proprietors) spanning these two parcels. He consulted his notary, who prepared the condominium regulations and the deeds of sale for the future apartments. Everything appeared perfectly in order.
However, the problem arose when he attempted to register this condominium in the land register (the public register establishing real rights over immovable property in the departments of Bas-Rhin, Haut-Rhin and Moselle): the registrar of mortgages refused. His argument? Constituting a condominium over two distinct parcels would amount to a de facto merger of those parcels. In his view, such a merger should have been carried out beforehand by a specific notarial deed.
Mr. Dupont contested this decision before the tribunal, which ruled in his favour. However, the Metz Court of Appeal overturned this judgment and dismissed his application. The appellate judges considered that constituting the base of a condominium over two distinct parcels is equivalent to a de facto merger, which requires three conditions to be met: the properties must be situated in the same land registration district, belong to the same rights holder, and not be encumbered by different rights or charges.
Determined, Mr. Dupont lodged an appeal in cassation. A judicial twist was anticipated, with stakes extending far beyond his personal case.
The Reasoning of the Court — Analysed
The Court of Cassation, in its judgment of 27 May 2021, quashed the decision of the Metz Court of Appeal. The supreme judges based their ruling on Articles 32 and 34, paragraph 1, of Decree No. 2009-1193 of 7 October 2009 relating to the land register and its computerisation in the departments of Bas-Rhin, Haut-Rhin and Moselle.
In clear terms, what do these texts state? Article 32 specifies the conditions for registration in the land register, while Article 34, paragraph 1, provides that the registration of a property subject to the condominium regime does not require the prior merger of the parcels on which it is situated, provided that these parcels belong to the same rights holder.
In other words, the Court of Cassation reiterates a fundamental rule: the legislature expressly provided that creating a condominium over several parcels does not presuppose their prior merger. This is an important confirmation of prior case law, putting an end to an erroneous interpretation too often applied by certain courts.
The Metz Court of Appeal had committed an error of law by requiring this prior merger. It had created an additional condition that the law did not impose. The magistrates of the Court of Cassation emphasise that the three conditions set out by the Court of Appeal (same land registration district, same rights holder, absence of different charges) are not required by the applicable texts.
What few people know is that this decision applies specifically to the departments of
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