Amending co-ownership regulations: when is unanimity required?

A co-owner wishes to convert their flat into professional premises, but the co-ownership regulations (règlement de copropriété) prohibit it. A property manager (syndic) proposes to revise the allocation of lift charges, which is considered inequitable. A general meeting wants to authorise the installation of air-conditioning units on the façade. In each of these cases, one question governs everything: what majority must be obtained to amend the co-ownership regulations? Applying the wrong majority rule means running the risk that a co-owner will have the decision annulled by the Judicial Court (tribunal judiciaire), sometimes several months after the vote. This guide sets out the four majority regimes provided for by the Law of 10 July 1965 (Articles 24, 25, 26 and unanimity) and specifies, clause by clause, in which cases unanimity remains unavoidable.

The co-ownership regulations, a contract that cannot be freely rewritten

The co-ownership regulations are the founding document of the building. They set the purpose of the common parts and private parts, the conditions of their enjoyment, the allocation of charges between the lots and the operating rules of the syndicate of co-owners (syndicat des copropriétaires). Provided for by Article 8 of Law No. 65-557 of 10 July 1965 establishing the status of co-ownership (copropriété) of built properties, they are binding on all co-owners, including those who purchase after they were drawn up. They must not be confused with the internal rules (règlement intérieur), whose legal value is examined in our article on the internal rules of a co-ownership.

Because they affect each co-owner's rights over their property and over the common parts, the regulations cannot be amended by a simple decision of the property manager, nor lightly in a general meeting. Any amendment requires a decision of the general meeting of co-owners, adopted by the majority that the law attaches specifically to the subject matter of the amendment. This is where the difficulty lies: the 1965 Law does not provide for a single majority, but for a gradation of four regimes, from the most flexible to the most demanding. The more the amendment affects individual rights or the overall balance of the co-ownership, the higher the required majority.

Understanding this gradation requires first a command of the four majority regimes, and then identifying the exact nature of the clause to be amended.

The four majority regimes of the Law of 10 July 1965

The 1965 Law, substantially reworked by Law No. 2018-1021 of 23 November 2018, known as the ELAN Law, and by Ordinance No. 2019-1101 of 30 October 2019, organises four levels of majority. Each is based on a different method of calculation, and confusion between these methods of calculation is a frequent source of litigation.

Article 24: simple majority

The Article 24 majority is calculated solely on the votes cast by the co-owners present, represented or voting by post. Abstentions and absent co-owners are not counted. This is the ordinary regime: any decision for which the law does not provide a reinforced majority falls under Article 24.

As regards the co-ownership regulations, Article 24 notably allows the regulations to be brought into line with legislative and regulatory changes that have occurred since they were drafted. The 2019 Ordinance specifically sought to facilitate these purely technical updates, which do not alter the balance of rights but align the text with the law in force (for example the inclusion of statements made mandatory by the ALUR Law on the share of common parts attached to each lot).

Article 25: absolute majority and the Article 25-1 bridge

The Article 25 majority is calculated on the votes of all co-owners, whether present, represented, absent or abstaining. Half plus one of the votes of the entire syndicate must therefore be obtained, which is considerably more restrictive than Article 24.

Article 25 mainly governs individual authorisations given to a co-owner to carry out works affecting the common parts or the external appearance of the building, provided that those works are consistent with the purpose of the building. This is the applicable majority, for example, for authorisation to open a common load-bearing wall or to install a conservatory.

To avoid deadlock, Article 25-1 establishes a bridge. Where a proposal subject to Article 25 does not reach the absolute majority but obtains at least one third of the votes of all co-owners, the meeting may immediately hold a second vote by the simple majority of Article 24. This bridge is a valuable tool, but it never applies to decisions falling under Article 26 or requiring unanimity.

Article 26: double majority

Article 26 requires a twofold condition: a majority of the members of the syndicate (that is, more than half of the co-owners counted per head) representing at least two thirds of the votes. Both a sufficient number of co-owners and a sufficient weight in shares (tantièmes) are therefore required.

This is the central regime for amending the co-ownership regulations. Article 26 expressly covers the amendment, or where applicable the drawing up, of the co-ownership regulations insofar as they concern the enjoyment, use and administration of the common parts. Changing the access hours to a common room, revising the rules for use of the garden, regulating the use of the common parts: all of this falls in principle under the double majority of Article 26.

Article 26 also governs acts of property acquisition and certain acts of disposal concerning the common parts. However, it contains a major limitation, set out in its last paragraph, which opens the way to unanimity for a whole category of amendments.

Unanimity: the most demanding regime

Unanimity is not designated by a numbered article like the previous three; it results from several provisions of the law and from the principle that the acquired rights of a co-owner cannot be infringed without their consent. It requires the agreement of all co-owners without exception, including those who are absent and have not given a proxy. A single refusal, or a single unrepresented absence, is enough to defeat the vote.

This is the regime reserved for amendments that affect the core of individual rights or the fundamental balance of the co-ownership. Understanding when unanimity is required is the most delicate practical issue, because a decision adopted under Article 26 where unanimity was required is liable to annulment.

In which cases is unanimity required to amend the regulations

The question of amending the co-ownership regulations unanimously arises as soon as the amendment goes beyond the mere organisation of the enjoyment of the common parts and reaches a protected right. Four main situations recur in practice.

Changing the purpose of the building

The purpose of the building (destination de l'immeuble), as it results from the co-ownership regulations and the contractual documents, defines the use to which the building is assigned: residential building, mixed residential and commercial building, high-end residence with clauses restricting occupation to residential use (occupation bourgeoise), etc. This purpose determines the value and use of each lot.

Changing the purpose of the building requires the unanimous agreement of the co-owners. Consider a residential co-ownership whose regulations contain an exclusive residential-use clause (clause d'habitation bourgeoise exclusive), prohibiting any professional activity. Deciding henceforth to authorise commercial activities throughout the building amounts to changing its purpose: this decision can only be taken unanimously. Conversely, the limited relaxation of a clause, or its interpretation, may fall under less demanding regimes depending on the actual scope of the amendment, which justifies a prior legal analysis.

Infringement of co-owners' rights over their private parts

The last paragraph of Article 26 lays down a fundamental protective rule:

The general meeting may not, by any majority whatsoever, impose on a co-owner a change to the purpose of their private parts or to the terms of their enjoyment, as they result from the co-ownership regulations.

In other words, no majority, not even the double majority of Article 26, can reduce the rights that a co-owner derives from the regulations over their private parts. Such an amendment requires their personal agreement, which in practice translates into a requirement of unanimity where it concerns all the lots.

Take the case of a co-ownership whose regulations authorise the liberal professions to be practised on the ground floor. Deciding henceforth to prohibit this option, when it appears in the regulations as a right attached to the lots concerned, restricts the terms of enjoyment of the private parts: the decision requires the agreement of the co-owners affected, and therefore unanimity if the general clause is to be amended. Likewise, imposing a new easement (servitude) on a co-owner's lot, or withdrawing an exclusive right of use set out in the regulations, falls under this regime.

Changing the allocation of charges

The allocation of charges is one of the most sensitive issues in co-ownership, and one of the main sources of litigation. Article 11 of the Law of 10 July 1965 lays down the following principle: the allocation of charges may only be changed by unanimous decision of the co-owners.

This principle is easy to understand: changing the shares of charges amounts to increasing the contribution of certain lots for the benefit of others, which directly affects the assets of each co-owner. A co-owner cannot be made to bear a new or increased charge without their consent.

Article 11 does, however, provide for significant exceptions. Where works, an act of acquisition or an act of disposal are validly decided by the meeting, the new allocation of charges made necessary by that operation may be adopted as part of the same decision, by the majority applicable to the operation itself. Likewise, Article 12 allows a co-owner to apply to the Judicial Court to have an allocation corrected where it does not comply with the statutory criteria (usefulness of the collective services and equipment for each lot, relative value of the private parts). Finally, where a change in the use of a private part leads to an increase in charges, Article 25 may allow the corresponding adjustment. Outside these cases, the voluntary revision of the allocation scale remains subject to unanimity.

A common example: the ground-floor co-owners who do not benefit from the lift wish to reduce their share of lift charges, without any works justifying it. This voluntary change to the allocation key requires unanimity, unless the court is seised on the ground that the allocation does not comply with the criteria of Article 10. The remedies available to the co-owner, depending on whether the allocation disregards the regulations or the regulations themselves are contrary to the law, are set out in our article on challenging an unlawful allocation of charges.

Disposal of common parts affecting the purpose of the building

The sale or transfer of a common part (for example the transfer of a portion of courtyard to a co-owner to enlarge their lot) amends the regulations, since it removes that area from the common parts and requires the shares to be recalculated. Where this disposal does not affect the purpose of the building, it falls under the double majority of Article 26. However, where it affects the purpose of the building or the terms of enjoyment of the private parts, unanimity becomes necessary again. The boundary between the two situations is sometimes fine and calls for a case-by-case assessment.

How to identify the correct majority according to the clause amended

The overall logic can be summarised as follows: the more technical the amendment and the more neutral for individual rights, the lower the majority; the more it affects acquired rights or the overall balance, the higher the majority. The reasoning is conducted in three stages.

• Identify the actual subject matter of the amendment: is it a mere update of the text, a rule on the use of the common parts, an infringement of the private parts, or a change of purpose?
• Link that subject matter to a majority regime: bringing into line and technical updates under Article 24; authorisations for works consistent with the purpose under Article 25; changes to the use and administration of the common parts under Article 26; infringement of the private parts, change of purpose and change to the allocation of charges by unanimity.
• Check whether a bridge or a statutory exception exists: the Article 25-1 bridge for certain Article 25 decisions, or the Article 11 exceptions for the allocation of charges.

This classification never dispenses with a careful reading of the disputed clause. The same amendment wording may fall under Article 26 or unanimity depending on whether or not it affects the private parts. The legal characterisation of the clause determines the majority, and it is precisely on this characterisation that most disputes crystallise.

What are the risks of a decision adopted by an insufficient majority

A decision amending the regulations adopted by a majority lower than that required by law is irregular. Any opposing or defaulting co-owner may challenge it before the Judicial Court for the place where the building is located, by an action for annulment provided for by Article 42 of the Law of 10 July 1965. Since the 2019 Ordinance, this time limit is two months from notification of the minutes of the general meeting.

Once this time limit has expired, the decision in principle becomes final as regards the co-owners who were duly convened. However, an amendment adopted without complying with the requirement of unanimity, where it infringes a right that a co-owner never agreed to relinquish, exposes the co-ownership to lasting legal uncertainty, in particular at the time of the sale of a lot, when the notary (notaire) identifies the irregularity. It is therefore better to secure the majority upstream than to rely on the challenge becoming time-barred.

In practical terms, a regulation clause amended in doubtful circumstances weakens future transactions, complicates the work of the property manager and may give rise to the latter's liability if it placed a resolution on the agenda under a manifestly incorrect majority.

Securing the amendment: the steps to follow

Before placing an amendment to the regulations on the agenda, the co-owners' council (conseil syndical) and the property manager should have the clause concerned legally characterised. This characterisation determines the required majority, the drafting of the resolution and, where applicable, the need to use a surveyor (géomètre-expert) or a notary for the registration of the amendment in the land register. An amendment to the regulations is only fully enforceable against third parties, in particular future purchasers, after registration with the land registration service (service de la publicité foncière). The steps of the procedure, from preparing the file to the formalities following the vote, are set out in our guide to amending co-ownership regulations.

The drafting of the resolution put to the vote deserves particular care: it must state precisely the clause amended, the new text and the basis for the majority applied. An ambiguous resolution, mixing amendments falling under different regimes, exposes the entire vote to challenge.

Key points

Amending the co-ownership regulations is never subject to a single majority. The majority rules of Articles 24, 25 and 26 operate together with the requirement of unanimity according to the nature of the clause amended, and this gradation reflects a hierarchy of rights: the co-owner's individual right over their lot and over their share of charges prevails over the will of the majority. Unanimity remains unavoidable whenever the purpose of the building is to be changed, rights over the private parts are affected or the allocation of charges is voluntarily revised outside the statutory exceptions.

The decisive step is not choosing a majority, but characterising precisely the clause to be amended. Before any meeting, have the disputed clause analysed by a real estate law professional: it is this characterisation, and not the vote itself, that determines the legal soundness of the amendment and its resistance to an action for annulment.

Frequently asked questions

What majority is required to amend the co-ownership regulations?

The majority depends on the subject matter of the amendment. Technical alignment with the law falls under the simple majority of Article 24. Changes to the rules on the use and administration of the common parts fall under the double majority of Article 26 of the Law of 10 July 1965. Infringement of rights over the private parts, a change in the purpose of the building and the voluntary revision of the allocation of charges require unanimity.

Can the allocation of charges be changed without unanimity?

In principle, no: Article 11 of the Law of 10 July 1965 requires unanimity for any voluntary change to the allocation of charges. There are exceptions: where works or an act of acquisition or disposal validly voted make a new allocation necessary, it is adopted by the majority applicable to the operation. A co-owner may also apply to the Judicial Court, on the basis of Article 12, to have an allocation that does not comply with the statutory criteria corrected.

What is the Article 25-1 bridge?

Article 25-1 allows, where a decision subject to Article 25 (absolute majority) obtains at least one third of the votes of all co-owners without reaching that majority, a second vote to be held immediately by the simple majority of Article 24. This bridge avoids deadlock on individual authorisations for works. It never applies to decisions falling under Article 26 or to those requiring unanimity.

Can the purpose of the building be changed by the Article 26 majority?

No. Changing the purpose of the building, for example moving from an exclusively residential purpose to a mixed purpose authorising commercial use, requires the unanimity of the co-owners. The double majority of Article 26 only allows the regulations to be amended insofar as this concerns the enjoyment, use and administration of the common parts, without affecting the purpose of the building or rights over the private parts.

Within what time limit can an amendment to the regulations adopted by an insufficient majority be challenged?

An opposing or defaulting co-owner has two months from notification of the minutes of the general meeting to bring the matter before the Judicial Court, pursuant to Article 42 of the Law of 10 July 1965. Once this time limit has expired, the decision in principle becomes final as regards the co-owners who were duly convened, but an amendment adopted in breach of a requirement of unanimity remains a source of legal uncertainty, in particular on the sale of lots.

Must an amendment to the regulations be registered to be enforceable?

Yes. To be enforceable against third parties, in particular future purchasers, the amendment to the co-ownership regulations must be registered with the land registration service (service de la publicité foncière). This formality, generally carried out by a notary, records and secures the new text. Until registration has taken place, the amendment only takes effect between the current co-owners of the syndicate.

Can the property manager amend the co-ownership regulations alone?

No. The property manager has no power to amend the co-ownership regulations on its own initiative. Any amendment requires a decision of the general meeting adopted by the majority required by law according to the subject matter concerned. The property manager merely places the resolution on the agenda, organises the vote and, where applicable, arranges for the registration of the amendment adopted.