Distribution of costs, voting on works, use of common and private areas: in co-ownership, the subjects of contention are legion. The exponential development of tourist rentals has also contributed to straining relations between co-owners. To find a solution to conflicts, the trustees refer to the co-ownership regulations as justice of the peace. This document of several dozen pages, given when purchasing a lot (housing, cellar, parking, etc.) within a building, is binding on all occupants, whether they are co-owners or tenants. . In addition to the description of the common and private areas, it sets out the rules for occupation, operation and management of the building, as well as the thousandths allocated to each lot. It may also contain specific clauses such as the prohibition of certain businesses or activities in order to prevent noise or olfactory nuisances.
“The co-ownership regulations are the Bible
,” summarizes Cédric Réghenas, director of the SDI agency, trustee of Ariège.
“It sets out the rules that we must apply for the management of each building, in addition to the laws and regulations
,” adds Olivier Safar, president of the co-ownership commission of the Union of Real Estate Unions (United). But due to their imprecise or obsolete wording or the presence of aberrant clauses, certain regulations fuel conflicts instead of being a supporting document to resolve them.
The document is more powerful than the law
Even if article 3 of the law of July 10, 1965 lists what falls under the common parts of a co-ownership, it is only supplementary and applies “in the silence and contradiction of the titles”. In other words, when the co-ownership regulations are silent on certain points or if they contradict themselves. Otherwise, the latter prevails. Thus, certain regulations indicate that the floors are private; the same goes for the pipes which cross the apartments. Even if these clauses defy common sense, they are binding on the trustee and the co-owners. Unless you modify them at a general meeting or file an appeal with the courts to ask the judge (who has discretion) to declare them unwritten.
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Unfair distribution of costs
It's a classic: the trustees interviewed by Le Particulier are full of examples of regulations involving an unfair or illogical distribution of charges.
“We sometimes have lots whose thousandths do not correspond to the reality of the volume of the accommodation,”
indicates Olivier Safar.
I also managed a building where the upkeep and maintenance costs for the elevator were the same for all the co-owners, regardless of the floor where their accommodation was located. Finally, the co-ownership regulations were changed during a general meeting. No co-owner has challenged the modification in court. »
Tip #1: Read the rules
Before buying, obtain the co-ownership regulations and study them carefully. This will allow you to check if it is compatible with certain of your projects, the seasonal rental of the property, for example.
Other examples: in many co-ownership regulations, garages, parking lots and cellars constitute separate lots. Historically, when the building was co-owned, they were attached to apartments. But, over time, some may have been sold separately from the main lot.
“As these lots do not have specific charges, their owners find themselves paying the general charges of the building: maintenance of the boiler, cleaning of the common areas, including when the parking lot or garage is outside . The thousandths for these lots are certainly often minimal, but that is not logical
,” underlines Philippe Bigot, head of the trustee service at the Century 21 Foch Immobilier agency in Rodez (Aveyron).
We discovered an even more aberrant situation. When a co-ownership is made up of a building on the courtyard and another on the street, the regulations may provide that all the co-owners contribute financially to the renovation of the facades of the two buildings or that the distribution of costs for this type of work is will be carried out per building.
“But we sometimes have clauses that defy common sense
,” reports Julien Batisse, former trustee who became a consultant in co-ownership management.
“In a co-ownership in Fontainebleau, the regulations indicated that the co-owners of the buildings on the courtyard contributed to the repair of the facade of the building on the street, but not the other way around! All this on the probable grounds that the street facade was a sort of showcase for the entire condominium. »
The regulations that we were able to consult stipulate, in fact, that the
“general common areas”
for all the co-owners include
“the renovation of the facade on the street”
. Obviously, such a clause aroused the ire of the other co-owners when it was necessary to renovate the building on the street.
“I was appointed trustee after this affair. But I felt that it had left its mark given the sometimes tense relations between co-owners
,” recalls Julien Batisse. The only solution would be a change to the co-ownership regulations. This requires a unanimous vote since the cost distribution grid would be modified. A unanimity, in practice, almost impossible to find.
“Two majorities to change a regulation. » Barbara Thomas-David, Notary in Paris.
Any co-owner can ask the trustee to include a resolution on the agenda of the general meeting to modify one or more clauses of the co-ownership regulations. But, to be adopted, most of the modifications require a double majority vote in Article 26 of the law of July 10, 1965 (the majority of all co-owners representing two-thirds of the votes). This is the case for everything relating to the use and enjoyment of common areas, such as the conditions of enjoyment of a garden, the sale of a former concierge's lodge or its transformation into stroller storage. A unanimous vote is even required if the clause that we want to modify changes the key to the distribution of charges or the destination of the building. Failing to have been able to have a modification adopted by the general meeting, a co-owner can also take legal action if he considers that a point in the regulations is questionable. There, it is the judge who will assess whether his request is founded or not.
Problems defining who owns
Another extravagant example: in a Parisian condominium, floors sank between two floors, leading to costly consolidation work for certain lots. Trustee and union council referred to the co-ownership regulations to discover that
“the private property of each lot includes in particular the floors with the beams and joists which support them. »
Which means that the work is the responsibility of only the lots affected by the subsidence. But are the floors in question the
“private property”
of the apartment of the owner above where it is the floor, or for the one below where it is the ceiling? A question that is almost impossible to decide since a floor is a sort of horizontal wall that separates two lots. Especially since the same regulation considers that
“the ceilings [of the apartments] attached to the floor beams of the upper floor are also a “private part””
. Additional difficulty: the subsidence would have been caused by the deterioration of the large beams of the wooden structure of the building which are part of the common areas. It’s Kafkaesque! However, article 3 of the law of July 10, 1965 on co-ownership considers that
“the grounds are deemed to be common areas”
.
“But this article is not of public order, it is only supplementary
,” points out Carole Besson, director of the legal service of Fnaim du Grand Paris. In other words, the regulation prevails over the law. Case law makes everything more complex. A judgment of the Court of Cassation
(cass. civ. 3rd of 19.7.95, n° 93-21.044)
confirmed that a
“concrete slab”
was private on the grounds that it does not contribute to the stability of the building. Conversely, a ruling from the Dijon Court of Appeal (of 29.6.04) considered that beams forming part of the framework of the construction are common parts because they contribute to the stability of the building. The co-owners who were victims of the subsidence could have taken the matter to court, without any certainty of winning their case. They preferred to deal with their co-ownership regulations to return to their accommodation quickly.
Tip No. 2: Pay attention to the distribution of common and private areas
It has an impact on the costs charged to you in the event of work. In this matter, it is the regulations which are authoritative.
Unjustified advantages
Other regulations give pride of place to one owner, to the detriment of others, defying all logic. This is happening in Ariège.
“In a building in downtown Foix, the regulations of a small co-ownership that I managed say that the commercial premises do not participate in the maintenance and repair work of the roof
,” reports Cédric Réghenas. The same document, which dates from 1972, stipulates that the financial contribution of the commercial premises to the renovation work is proportional to the small piece of wall which protrudes on either side of the window. In other words, almost nothing, even though commerce occupies the entire ground floor!
“This is a situation which makes it difficult to carry out major works, because their financial burden falls solely on the co-owners who have accommodation on the upper floors
,” underlines Cédric Réghenas. How can we explain such aberrant clauses?
“Certain regulations were written according to the wishes and interests of the person who put the building into co-ownership
,” he answers. In this case, the building originally belonged to a single owner. When he retired, he sold the apartments but kept the commercial premises to generate rental income. As a result, he had a tailor-made regulation drawn up in his favor. The only way to change the situation is to have a amending resolution adopted by the General Assembly.
There are more modern, and legally sophisticated, forms of situations with the clear objective of benefiting investors in commercial premises.
“It happens that developers salvage buildings by creating “volume lots” for commercial premises. These are not lots within the meaning of the law of July 10, 1965 but a separate surface area, completely legally disconnected from the co-ownership. Clearly, commercial space constitutes a property in itself within a building. This allows their owners not to contribute to maintenance costs or major work
,” explains Jean-Marc Torrollion, former president of Fnaim.
This regime is often used in the case of construction of several buildings on the same plot, the independent commercial or activity building constituting a
“volume lot”
. But developers have used this trick in ordinary buildings with commercial space on the ground floor and housing on the upper floors. This is only an artifice aimed at benefiting purchasers of commercial premises to the detriment of other co-owners.
“The only condition for this sausage to be possible: there must be no part in the building common to the “volume lots” and the “1965 law” lots: entrance hall, staircase, elevator, heating, etc. The lot of volume is a cell benefiting from a free easement under its envelope within a building
,” explains Jean-Marc Torrollion.
Outdated clauses can be very annoying.
For lack of having been cleaned up, co-ownership regulations for bourgeois buildings include completely outdated clauses, such as the ban on service personnel from using the main halls and staircases. In the age of gas boilers and electric radiators, the regulations of a building in the 15th arrondissement stipulate that “the supply of coal […] can only take place in the morning before 10:00 a.m..” It is even for “all other goods”. Enough to make home delivery men who bring their packages or meals at any time of the day, including late in the evening, laugh. The regulations of another Parisian co-ownership indicate that
“animals, even domestic ones, of a noisy, unpleasant or harmful nature are prohibited […]. Only small dogs will be tolerated and must be carried on their arms when going up to the apartments
. Some of these clauses, which have fallen into disuse, could be considered unwritten by the courts.
Removal of the concierge: an annoying affair
Sometimes, although it was not originally, the settlement can become a source of disputes because of a new situation. Example with the presence of a concierge. Thus the regulations of a wealthy condominium in the 14th arrondissement of Paris list on two pages the numerous tasks which are its tasks. Anthology: maintaining common areas in good condition, checking that corridors, porches and staircases are well lit, visiting apartments for rent or sale in the absence of their owners... As a result, the concierge is an essential player in the daily life of the building. But, during the last general meeting, the co-owners voted by simple majority of article 24 (co-owners present, represented or having voted by correspondence) the elimination of the guard position and its replacement by a service company which will do the cleaning, taking out the trash, etc.
“This vote is contested by a co-owner who decided to take legal action to have the deliberation canceled,” indicates his lawyer Ganaëlle Soussens. A concierge is not at all the same thing as a service company. He ensures a permanent human presence, he does continuous cleaning, he provides services (reception of packages, deliveries, etc.), and this contributes to the standing of the building. »
For the lawyer, such a change requires a modification of the co-ownership regulations which must be voted on by a double majority of article 26 (co-owners representing two thirds of the votes). To be continued…