Co-ownership rules: mandatory clauses, unfair clauses and enforceability

Buying a flat in a co-ownership (copropriété) building also means inheriting a document that many buyers sign without reading: the co-ownership rules (règlement de copropriété). This text sets out who may do what in the building, how charges are apportioned and what restrictions weigh on each lot. The problem often arises after the sale: a co-owner discovers that they cannot carry on their profession at home, that they pay lift charges although they live on the ground floor, or that a clause prohibits what the law permits. This guide distinguishes the clauses that the rules must contain, those that are legally set aside because they are unlawful, and explains the conditions in which these stipulations are binding on new buyers.

What the co-ownership rules are for and what they must contain

The co-ownership rules are the contract that organises life in a building subject to the status of Law No. 65-557 of 10 July 1965 establishing the status of co-ownership of built properties, supplemented by Decree No. 67-223 of 17 March 1967. Drawing them up is mandatory as soon as a built property is divided into lots belonging to several owners.

Article 8 of the 1965 Law defines their minimum content. The rules must determine the intended use (destination) of the private parts and of the common parts, the conditions of their enjoyment, and the rules on the administration of the common parts. Certain statements are therefore genuine mandatory clauses without which the document does not fulfil its function.

The intended use of the building and of the lots

The intended use (destination) of the building is the most structuring clause, because it serves as the yardstick for all the others. The rules may provide for an exclusively residential use (habitation bourgeoise), a mixed use (residential and professional), or commercial use for the lots at the foot of the building.

This characterisation is not decorative. It conditions the validity of the prohibitions imposed on co-owners. An exclusively residential clause prohibits the carrying on of any professional or commercial activity in the lots concerned, whereas a simple residential clause tolerates the liberal professions. The intended use also determines the fate of short-term lettings of the furnished tourist accommodation type, a frequent subject of litigation.

The distinction between common parts and private parts

The rules must precisely delimit what falls within the private parts (flat, cellar, private parking space) and the common parts (hall, roof, structural works, main pipework). Articles 2 and 3 of the 1965 Law lay down the definitions; the rules apply them to the actual building.

The reform made by Ordinance No. 2019-1101 of 30 October 2019 enshrined two useful notions. Special common parts (parties communes spéciales), intended for the use of certain co-owners only (for example the staircase of one building among several), and common parts with private enjoyment (parties communes à jouissance privative), of which a co-owner has exclusive use without being the owner (a terrace, a garden, a courtyard). Well-drafted rules clearly identify these categories, because they govern the apportionment of charges and the regime for works. The attribution of the right to raise the building where the rules are silent, including where there are special common parts, is examined in our commentary on raising a building in co-ownership.

The apportionment of charges

Article 10 of the 1965 Law imposes a two-stage apportionment rule that all rules must respect. Charges arising from collective services and shared equipment (lift, collective heating) are apportioned according to the objective utility that these services have for each lot. Charges relating to the preservation, maintenance and administration of the common parts (facade restoration, roof, property manager's fees) are apportioned in proportion to the co-ownership shares (tantièmes), that is, the share of the common parts attached to each lot.

This dual logic explains why a ground-floor co-owner should not bear the routine maintenance charges of the lift, from which their lot derives no utility. An apportionment that required them to do so conflicts with the statutory utility criterion and becomes open to challenge. The remedies open to the co-owner and the time limits for challenging an unlawful apportionment of charges are set out in our dedicated article.

The descriptive statement of division and the summary data sheet

In practice, the rules are almost always accompanied by a descriptive statement of division (état descriptif de division) (Article 4 of the 1967 Decree), which numbers the lots and specifies the shares. Since the ALUR Law No. 2014-366 of 24 March 2014, Article 8-2 of the 1965 Law also requires the property manager (syndic) to draw up a summary data sheet on the co-ownership (fiche synthétique) bringing together the essential financial and technical data. These documents do not replace the rules but accompany them on any sale.

Unfair or unlawful clauses: the notion of a clause deemed not written

The term unfair clause in co-ownership (clause abusive copropriété) is commonly used, but a point of vocabulary is needed. The regime of unfair terms in the Consumer Code concerns contracts between a professional and a consumer; it does not apply, in principle, to relations between co-owners or to the rules themselves. In co-ownership law, the legally accurate notion is that of a clause deemed not written (clause réputée non écrite).

Article 43 of the 1965 Law lays down the principle: any clauses contrary to the provisions of the articles listed in that text are deemed not written. A clause deemed not written is regarded as never having existed. The court does not annul it for the future; it finds that it never produced any effect. The difference is decisive for co-owners who have suffered its consequences for years.

The central criterion: the intended use of the building

The second paragraph of Article 8 of the 1965 Law sets the limit that the rules cannot cross. The rules may impose no restriction on the rights of co-owners other than those justified by the intended use of the building, as it results from the characteristics and the location of the building.

This criterion is the filter through which the courts assess the validity of a prohibition. A restriction is lawful only if it is justified by the intended use of the building and proportionate to that objective. A clause that deprives a co-owner of a right without justification drawn from the intended use is unlawful and may be set aside.

Take the example of a clause prohibiting the practice of any liberal profession in a building of mixed use. This prohibition is not consistent with an intended use that precisely allows professional activity: it finds no justification in the characteristics of the building and is weakened. Conversely, in a building of exclusively residential use, the same prohibition is valid because it follows directly from the intended use.

Concrete examples of clauses frequently set aside

Certain stipulations recur regularly in older rules and run up against the law.

• A clause prohibiting the keeping of a pet in residential premises is expressly deemed not written by Article 10 of Law No. 70-598 of 9 July 1970. The rules therefore cannot generally prohibit the presence of a dog or a cat in a flat, even though they may regulate nuisance.
• An apportionment clause that departs from the utility criterion laid down in Article 10 is contrary to that text and falls within Article 43.
• A clause requiring the use of a named property manager, or depriving the general meeting of its power to dismiss the manager, infringes the public-policy rules governing the administration of co-ownership.
• A clause giving a co-owner a number of votes disproportionate to their share, or introducing a right of veto, disregards the majority rules laid down by law.

Conversely, not all restrictions are unlawful. A clause prohibiting the hanging of laundry at street-facing windows, the installation of a visible satellite dish, or changes to the harmony of the facades remains valid because it relates to the intended use and the appearance of the building.

The sensitive case of short-term letting

The question of short-term furnished lettings illustrates the reasoning well. In a building of exclusively residential use, the courts accept that repeated tourist letting, which generates comings and goings and para-hotel-type operation, may contravene the residential intended use. A clause prohibiting it is then held to comply with Article 8. In a building of mixed use, the scope for prohibition is narrower. Everything therefore depends on the intended-use clause and on the reality of the activity, which explains the abundance of litigation.

How to have an unlawful clause set aside

Discovering that a clause is unlawful is not enough: it must still be set aside. Two routes exist, with different regimes.

The action to have a clause deemed not written, now not subject to limitation

A claim seeking a finding that a clause is deemed not written is no longer met with a limitation defence. Since the reform introduced by Ordinance No. 2019-1101 of 30 October 2019, made pursuant to the ELAN Law No. 2018-1021 of 23 November 2018, this action may be brought at any time. A co-owner who has been subject for fifteen years to a non-compliant apportionment of charges may therefore apply to the judicial court for a finding that the clause is deemed not written.

The practical interest is considerable. Once the clause is set aside, the apportionment must be redone according to the statutory rule. The judge may order a new apportionment in accordance with Article 10, with effect for future calls for funds. The refund of sums unduly paid in respect of the past is, however, governed by separate limitation rules that must be assessed case by case with an adviser.

Revision of the apportionment of charges within two years

Article 12 of the 1965 Law opens a second route, wider but confined within a time limit. For two years following the publication of the co-ownership rules at the land registry (service de la publicité foncière), any co-owner may request revision of the apportionment of charges where the share corresponding to their lot is more than one quarter higher, or more than one quarter lower, than the share that would result from a compliant apportionment. This mechanism does not require the clause to be unlawful: it corrects a manifest imbalance in the original apportionment. After the two-year period, this route is closed and only the action to have the clause deemed not written remains, where applicable.

Enforceability of the rules, in particular against new buyers

This is the point that worries the buyer most: to what extent is the buyer bound by a document drafted well before their arrival? The answer lies in a land publicity mechanism.

The role of publication in the property register

Article 13 of the 1965 Law states the rule. The co-ownership rules and any amendments to them are enforceable against the successors in title of the co-owners by particular title (ayants cause à titre particulier), that is, notably buyers, only from their publication in the property register (fichier immobilier) kept by the land registry.

In practical terms, rules that have been duly published are binding on any new buyer, whether or not the buyer has read them. By buying a lot, the buyer adheres to the organisation of the building as it results from the published rules. The buyer cannot claim to have been unaware of a residential-use clause in order to carry on a commercial activity regardless. This is why the notary annexes the rules to the deed of sale and hands them to the buyer.

This enforceability naturally applies only to lawful clauses. A clause deemed not written does not become enforceable merely because it was published: land publicity does not validate a stipulation contrary to the law. The buyer therefore remains entitled to seek its removal.

Unpublished clauses and acceptance by the buyer

What happens to a clause that appears in the rules but has not been duly published, or to an amendment voted at a general meeting but not yet published? In principle, an unpublished clause is not enforceable against the successor in title by particular title on the basis of Article 13.

There is, however, a qualification of contractual origin. Where the deed of sale reproduces the clause or expressly refers to it, and the buyer declares that they are aware of it and accept it, the clause becomes enforceable against the buyer by virtue of their contractual undertaking. The drafting of the notarial deed plays a decisive role here. A prudent buyer reads carefully the clauses reproduced in their deed, because they bind the buyer even in the absence of publication.

General meeting decisions prior to the purchase

Enforceability does not concern only the rules themselves. The buyer is also bound by general meeting decisions duly adopted before the purchase, provided they have not been annulled. If the buyer purchases a lot when a facade restoration has been voted but not yet called for payment, the buyer may find themselves liable for works charges that they did not vote for. The allocation of this debt between seller and buyer is governed by the stipulations of the deed of sale and by Article 6-2 of the 1965 Law, which sets the due date according to the nature of the expenditure. Here again, vigilance at signing avoids costly disputes.

Amending a clause of the co-ownership rules

Older rules may contain clauses that have become unlawful over the course of legislative reforms. Two approaches coexist for correcting them.

Clauses deemed not written may be recognised as such by the court, without any vote being necessary. But the co-ownership may also, and this is healthier, bring its rules into line. Amending a clause affecting the enjoyment, use or administration of the common parts falls in principle under the majority of Article 26 of the 1965 Law, that is, a majority of the members of the association of co-owners representing at least two thirds of the votes. The law has also provided for lighter mechanisms for bringing the rules into line with public-policy provisions that have come into force, notably to incorporate the special common parts and the common parts with private enjoyment arising from the 2019 reform.

Amending the apportionment of charges is subject to a stricter regime and in principle requires unanimity, except where the law permits adaptation by a specified majority, for example following works altering the make-up of the lots. Any amendment of the rules must then be published at the land registry in order to become enforceable against buyers, pursuant to Article 13. On the cases in which unanimity is required to amend the co-ownership rules and the applicable majorities, see our specific analysis.

Conclusion

The co-ownership rules are neither immutable nor all-powerful. They must contain mandatory clauses (intended use, delimitation of the parts, apportionment of charges according to the criteria of Article 10), but each of their restrictions remains subject to a simple test: is it justified by the intended use of the building? Any clause that crosses this limit or contradicts a public-policy provision is deemed not written, and that characterisation may now be invoked without any time limit. As against a buyer, the dividing line is clear: lawful clauses that have been duly published are binding, whatever the buyer's agreement, whereas an unlawful clause gains no force from its publication alone.

The practical recommendation is twofold. Before buying, have the intended-use clause and the charge apportionment table analysed, because they will determine what you can do with your lot and what you will pay. And if you are already a co-owner facing a clause that seems unfair to you, do not assume that it is valid because it has been in the rules for decades: have a lawyer check whether it withstands the criterion of Article 8, since its status as not written may be raised at any time.

Frequently asked questions

Can a clause of the co-ownership rules be unfair within the meaning of the Consumer Code? In principle, no. The regime of unfair terms in the Consumer Code concerns contracts between professionals and consumers, not relations between co-owners. In co-ownership law, the expression used is an unlawful clause or a clause deemed not written within the meaning of Article 43 of Law No. 65-557 of 10 July 1965. The term unfair clause in co-ownership (clause abusive copropriété) is used in everyday language, but the correct legal action is the one to have the clause deemed not written.

Are the co-ownership rules binding on a buyer who has not read them? Yes, provided they have been duly published at the land registry. Article 13 of the 1965 Law makes the rules enforceable against buyers from their publication, irrespective of whether they have actually read them. The notary in any event hands over the rules at the time of the sale. Only unlawful clauses escape this enforceability, because publication does not validate a stipulation contrary to the law.

How long is there to challenge an unlawful clause in the rules? The action seeking a finding that a clause is deemed not written is not subject to limitation since Ordinance No. 2019-1101 of 30 October 2019. It may therefore be brought at any time before the judicial court. By contrast, a request for revision of the apportionment of charges based on an imbalance of more than one quarter must be made within two years following publication of the rules, pursuant to Article 12.

Is a clause prohibiting animals in the building valid? Not for pets in residential premises. Article 10 of Law No. 70-598 of 9 July 1970 deems not written any stipulation prohibiting the keeping of them. The rules may nonetheless require respect for peace and quiet and penalise proven nuisance. A general prohibition as a matter of principle is set aside.

Can the rules prohibit seasonal lettings of the furnished tourist accommodation type? It depends on the intended use of the building. In a co-ownership of exclusively residential use, repeated tourist letting may be held contrary to that intended use, and a clause prohibiting it is then valid. In a building of mixed use, the scope for prohibition is markedly narrower. The analysis rests on the intended-use clause and on the reality of the operation.

Who can ask for a clause to be declared not written? Any co-owner with an interest in doing so, as well as the association of co-owners (syndicat des copropriétaires), may apply to the judicial court. A finding that a clause is not written benefits the co-ownership as a whole, since the clause is deemed never to have existed. Once the clause is set aside, the apportionment or organisation concerned must be redone in accordance with the law.

Is unanimity required to amend the co-ownership rules? Not systematically. Amending the clauses relating to the enjoyment, use or administration of the common parts falls in principle under the majority of Article 26, that is, a majority of the members of the association representing at least two thirds of the votes. Amending the apportionment of charges in principle requires unanimity, except in cases of adaptation provided for by law. Any amendment must then be published in order to be enforceable against buyers.