Right of exclusive use over common parts: excluded from Carrez law calculation

Imagine: you are in Bonifacio, you have just bought a flat with a lovely private terrace overlooking the harbour. The seller promised you 50 m² of living space, including the terrace. But at the time of signing, you discover that the terrace is actually a common part over which you only have a right of exclusive use. Result: your flat is only 35 m² according to the Carrez law. What can you do? Hundreds of owners ask themselves this question every year. The Court of Cassation, in a judgment of 8 October 2008, has ruled: a right of exclusive use over a common part is not a right of ownership and cannot be included in the calculation of the private area. Explanations.

The facts: a story that happens every day

Mr X, an owner in Bonifacio, sells a flat in a condominium. The deed of sale mentions an area of 65 m², including two "closed extensions on the garden" of which the buyer has exclusive use. However, after the sale, the buyer has a Carrez law measurement carried out (Law of 10 July 1965, Article 46) and finds that these extensions are in fact common parts. He sues Mr X to obtain a reduction in the price on the basis of Article 46 of the 1965 Law (which penalises an error in area exceeding 5%). The Tribunal de Grande Instance of Porto-Vecchio finds in favour of the buyer: Mr X is ordered to pay him a sum corresponding to the difference in area. Mr X appeals, but the Court of Appeal of Bastia upholds the decision. He then appeals to the Court of Cassation.

The reasoning of the court — broken down

The Court of Cassation had to answer a simple question: should the area of a right of exclusive use over a common part be included in the Carrez law measurement? It answered no, relying on Article 46 of the Law of 10 July 1965, which defines the private area as the area of the "private parts" of the unit. However, a common part, even if it is allocated as an exclusive use right to a co-owner, remains a common part. It is not the exclusive property of the co-owner, but simply a right of use. In other words, the Court distinguishes between the right of ownership (over a private part) and the right of use (over a common part). The latter does not transfer ownership. In short, if you have a private garden, a terrace or a courtyard the use of which is reserved for you, but these spaces are legally common parts, their area does not count under the Carrez law. Note however: this reasoning applies only if the right of use is exclusive and not a right of ownership. If the condominium regulations qualify these spaces as private parts, then they must be measured.

What this means for you — concretely

For sellers: if you are selling a property with a private garden or terrace, you must check the legal classification of these spaces in the condominium regulations. If they are common parts, you must exclude them from the Carrez law area calculation. Otherwise, you risk an action for a reduction in price, like Mr X. For example, in Porto-Vecchio, an owner selling a 70 m² flat with a 20 m² terrace considered private could be forced to refund €30,000 if the terrace is ultimately classified as a common part and the actual area falls to 50 m² (a difference of 20 m², well above 5%). For buyers: before buying, ask to see the condominium regulations and the descriptive statement of division. If the seller tells you an area including a terrace or garden, make sure it is indeed a private part. If not, you can negotiate the price or require a guarantee. For co-owners: if you benefit from a right of exclusive use over a common part, know that this right is not definitive. It can be challenged by a decision of the general meeting or by a change in the regulations. Do not therefore consider this space as acquired.

Four tips to avoid this type of dispute

• Check the condominium regulations before any sale or purchase: request a copy from the managing agent or notary. Identify precisely the private and common parts, as well as the rights of use.
• Have a Carrez law measurement carried out by a professional: a surveyor or diagnostician will be able to distinguish private areas from common parts. Do not rely on the seller's plans.
• If in doubt about the classification of a space, request a modification of the condominium regulations: if you are a co-owner, you can ask the general meeting to transform a common part into a private part, subject to the agreement of all co-owners (unanimity).
• Clearly mention in the deed of sale the legal nature of each space: specify whether a terrace is a private part or a right of use. This will avoid any subsequent dispute.

Further reading: related case law and developments

This decision is part of a consistent line of the Court of Cassation. Already in 2004 (Civ. 3e, 10 March 2004, No. 02-16.945), it had ruled that common parts cannot be included in the private area, even if they are allocated as exclusive use. More recently (Civ. 3e, 12 July 2018, No. 17-22.461), it clarified that the area of common parts with exclusive use must be excluded from the calculation of the share of common parts in the unit. The trend is therefore clear: the right of exclusive use does not confer ownership. What few people know is that some older condominium regulations wrongly qualify common parts as "private". In this case, the classification in the regulations prevails, but beware: if a co-owner challenges, the judge may reclassify the space as a common part, which leads to the consequences we know.

What you absolutely must remember

FAQ:

• Can I include my private terrace in the Carrez law area? Yes, if it is classified as a private part in the condominium regulations. Otherwise, no.
• What if I bought a property with an incorrect area due to an excluded terrace? You can ask for a reduction in price within 5 years of the sale (limitation period).
• Is the seller protected if he mentioned the incorrect area in good faith? No, the Carrez law is a legal guarantee: the seller is obliged to provide an exact area, even if he was unaware of the error.
• Can I transform a common part with exclusive use into a private part? Yes, with the agreement of all co-owners at a general meeting (unanimity) and modification of the regulations.
• What is the cost of a Carrez law measurement? Between €150 and €300 depending on the area. A modest investment to avoid costly disputes.

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