In a condominium, block B must not meddle in the affairs of A (and vice versa)
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Dn a property complex made up of several buildings, who pays what and who decides what? Does the sale of a common portion have to be voted on by all the co-owners? Should its product be shared among all?
These questions will have a different answer, depending on whether or not the co-ownership regulations provide for “special common areas”, as the following case reminds us.
On July 5, 2016, the general meeting of co-owners of the residence Les Mandariniers, in Le Lavandou (Var), authorized the transfer to Mr. X, residing in building H, of a surface area of six square meters, corresponding to the part of a corridor which leads to his apartment. The meeting also provides that the proceeds of this sale (30,000 euros) will be distributed among all.
The Zs, owners of three lots in building H, contest this resolution: they claim that under the terms of the co-ownership regulations the hallway constituted a “special common part”, that its transfer could therefore only be decided by the sole co-owners of building H and that the proceeds thereof should only be distributed among them. They assign the syndicate of co-owners and the trustee.
Special charges
When the Z go to court, the “special common areas” do not yet have a legal existence: the law of July 10, 1965 on co-ownership distinguishes only two categories of “parts” : those who are “private” (apartment, basement, etc.) and those that are “communes” (gardens, access roads, etc.). However, it specifies that the latter may “be the object of an undivided property between all the co-owners or some of them only”.
On this basis, some general assemblies have modified their co-ownership regulations, to introduce common parts called “special” Where “particular” to certain groups of owners (stairwells of the different blocks of a residence, for example), and case law has established the legal regime applicable to the latter.
June 8, 2011 (10-15.551), the Court of Cassation thus affirmed the principle that “the creation in the regulations of co-ownership of special common areas a as a corollary the introduction of special charges”, distributed among their sole co-owners. It refused to distribute among all the owners the cost of repairing the roof terrace of block C.
On the contrary, it ruled, on November 19, 2015 (14-25.510), that all the inhabitants of a residence had to contribute, in proportion to their thousandths, to the payment of repair work on one of their buildings, their regulations not having provided for special common areas.
November 19, 2014 (13-18.925), the Court ruled that decisions concerning the special common portions can only be taken by the co-owners having rights over them. She rejected the appeal of two owners of building 8 who, for twenty years, had been trying to demolish the interior staircase built by their neighbors in building 7, with the green light from this single block.
No deadline or sanction
It is in line with this decision that, on 1er June (2022, 21-16.232), the Court held, with respect to the sale of the corridor, that “Only the owners of the special common portions can decide on their alienation”. It agrees with the Zs, who had been dismissed at first instance and on appeal.
Many lawyers believe that litigation of this type should decrease, due to the entry into force, on November 25, 2018, of the law on the development of housing, development and digital technology (ELAN), which (section 209) established the notion of ” special common areas » as well as its case law.
The law on co-ownership, which it amended, explicitly provides (section 6-2) that “only those co-owners for whose use and benefit take part in the vote [elles] are affected” – even if this vote takes place during a meeting of all the co-owners.
The only disputes now likely to arise could be related to the fact that special charges appear in old minutes of general meetings or in the“descriptive state of division”, a document intended for the land registration service, without the corresponding special common areas having been created in the regulations, which alone have contractual status. A co-owner could dispute the payment.
The ELAN law had given the unions three years, i.e. until November 23, 2021, to make the necessary adjustments (which also concerned the common areas with private enjoyment). She even had specifies that “existence” special common areas was “subject to their express mention in the regulations”.
As this deadline could not often be met, due in particular to the health crisis, the law of February 21, 2022, known as 3DS (section 89), removed all deadlines and sanctions. She now only says that the union “registers on the agenda of each general meeting of co-owners the question of this mention”. Beware, however, of the procedural co-owner!
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