Schedule of division and co-ownership rules: what a discrepancy means for the usability of the lot

The acquisition of a co-ownership lot rests on an assumption that is rarely verified: that the description in the title deed corresponds to what physically exists, to what the co-ownership rules permit and to what the occupier does with the lot. In older Paris buildings, this assumption is false more often than is admitted. A maid's room merged into the main apartment, a commercial unit used as offices without the rules allowing it, an annexed landing, a total of ownership shares that does not add up, a lot designated in the deed but never created: each of these situations weakens resale, financing and sometimes the very use of the asset. The analysis that follows deals with the respective legal value of the schedule of division (état descriptif de division) and the co-ownership rules (règlement de copropriété), the operational consequences of a discrepancy, and the means of regularisation to be weighed before signing rather than afterwards.

Two documents, two distinct legal regimes

The most frequent confusion is to treat the schedule of division and the co-ownership rules as a single homogeneous block, on the ground that they are generally contained in one notarial deed entitled co-ownership rules and schedule of division. Their legal nature nevertheless differs, and that difference determines the outcome in the event of a contradiction.

The schedule of division is a land publicity instrument

The schedule of division (état descriptif de division, EDD) finds its basis not in the Law of 10 July 1965 but in the regulations on land publicity. Article 7 of Decree No. 55-22 of 4 January 1955 reforming land publicity requires that any instrument subject to publicity identify the property concerned; where the building is divided into lots, that identification is made by reference to a published schedule of division. Article 71 of Decree No. 55-1350 of 14 October 1955 sets its content: numbering of the lots, building, staircase, floor, nature of the premises, share of common parts allocated to each lot.

The EDD therefore has a cadastral and tax identification function. It serves to attach a right to a legal unit in the land register. The courts consistently hold that it has, in itself, no contractual value: it creates no rights, does not alter the composition of the private parts and cannot by itself turn a common part into a private part. A lot does not exist because it appears in the EDD; it appears in the EDD because it was created by the title. The drawing up of these documents when the lots are created is described in our article on converting joint ownership (indivision) into co-ownership (copropriété).

This rule is subject to a nuance that every practitioner must master. Where the EDD is inserted in the body of the co-ownership rules and the co-owners have adhered to it, it may acquire contractual force and be relied on as part of the contract. The analysis then becomes a question of interpreting the common intention, which shifts the debate to the evidential ground.

The co-ownership rules are an enforceable contract

The co-ownership rules fall under Article 8 of Law No. 65-557 of 10 July 1965 and Article 1 of Decree No. 67-223 of 17 March 1967. They determine the intended use of the building, of the private and common parts, the conditions of their enjoyment, and the allocation of charges. They are binding between the co-owners, and Article 13 of the 1965 Law makes their enforceability against successors in title subject to publication in the land register. The same requirement applies to each amendment. The compulsory content of this document, the fate of unlawful clauses and the conditions of its enforceability are detailed in our article on the co-ownership rules.

In the event of a contradiction, the hierarchy is therefore clear in principle: the constitutive deed of the co-ownership and the rules prevail over an EDD that is merely a publicity document. But that principle does not resolve the frequent case where the rules are themselves silent, ambiguous, or contradicted by sixty years of continuous occupation.

Ownership shares (tantièmes): two quantities not to be confused

Under Article 1 of the 1965 Law, a co-ownership lot is defined by a private part and a share of the common parts. Article 5 sets the method for determining that share:

The share of the common parts attached to each lot is proportional to the relative value of each private part in relation to the total value of those parts, as those values result, at the time the co-ownership is established, from the composition, the area and the location of the lots, regardless of their use.

Article 10 then distinguishes two series of charges: charges for collective services and shared equipment, allocated according to the objective utility that those services have for each lot, and charges for the preservation, maintenance and administration of the common parts, allocated in proportion to the relative values of the private parts. A single building therefore contains several grids: general ownership shares, general charges shares, special keys for the lift, heating, staircase, and special common parts within the meaning of Article 6-2.

A discrepancy in ownership shares does not have the same significance depending on the grid concerned. An error in the general ownership shares affects the undivided ownership of the land and the common parts, and therefore the value of the right transferred and the weight of the vote at the general meeting. An error in a charges key affects only the contribution. The means of regularisation differ accordingly. Finally, no text requires a total of 10,000 or 1,000: this is a drafting convention. What matters is internal consistency, and that no lot is omitted or counted twice.

Types of discrepancy found in due diligence

Discrepancy in area

Three measurements coexist and do not overlap: the private floor area known as the Carrez area within the meaning of Article 46 of the 1965 Law, which excludes in particular cellars, garages, parking spaces and lots of less than eight square metres; the habitable surface within the meaning of Article R. 156-1 of the French Construction and Housing Code, used for residential leases; and the indicative area stated in the EDD, often carried over from an old survey.

A difference between the EDD and the actual measurement is not in itself a defect. It becomes a risk where it reveals an unregularised physical alteration: merger of two lots, annexation of a corridor, creation of a mezzanine, removal of a load-bearing partition. If the actual area is more than one-twentieth less than that stated in the deed, the buyer has a claim for a reduction in the price, brought within one year of the notarial deed. The claim is useful but short, and it does not settle the underlying question: who owns the volume occupied.

Discrepancy in the nature or intended use of the lot

The EDD describes each lot (apartment, maid's room, cellar, commercial unit, shop). The rules, for their part, set the intended use of the building and the restrictions on enjoyment. Article 8, paragraph 2, of the 1965 Law prohibits the rules from imposing restrictions on co-owners' rights other than those justified by the intended use of the building.

The discrepancies here are structural for the investor. A lot designated commercial unit in the EDD but subject under the rules to an exclusive residential-use clause (clause d'habitation bourgeoise exclusive) cannot be used for retail, unless it is shown that the clause has itself been deprived of effect by a long-standing and general tolerance or by the evolution of the building. Conversely, a lot designated maid's room but occupied for decades as a self-contained studio raises the question of its attachment, its access by the service staircase and its share.

Three notions that deeds regularly confuse must be distinguished:

• intended use within the meaning of the co-ownership rules, which is contractual and falls under the 1965 Law
• use within the meaning of Articles L. 631-7 et seq. of the French Construction and Housing Code, which falls under administrative control of the change of use of residential premises, with compensation in Paris
• intended use within the meaning of town planning, in the sense of the uses and sub-uses of Article R. 151-27 of the French Town Planning Code, which determines the need for a prior declaration or a building permit

An administrative authorisation for change of use is not an authorisation under the co-ownership rules, and vice versa. An asset can be perfectly in order with the City of Paris and legally unusable under the co-ownership regime.

Discrepancy in ownership shares

It takes several forms: a general total that does not correspond to the sum of the lots, a lot omitted from the charges grid, double allocation of the same share, an EDD amendment published without a corresponding update of the allocation grid, creation of lots by division without apportioning the original shares. A discrepancy in ownership shares is detected by cross-checking three sources: the EDD and its published amendments, the annex to the rules setting out the allocation of charges, and the latest minutes of the general meeting with the attendance sheet, which is in practice the most up-to-date document.

The consequences go beyond the contribution to charges. An incorrect count of votes weakens the decisions taken at the meeting, in particular those adopted by qualified majorities. In a building where an investor holds a significant position, the question of the exact number of votes, and of the reduction provided for by Article 22 where a co-owner holds more than half of the shares, becomes a governance issue and not an accounting one.

The non-existent lot and the annexed common part

The most serious case is that of the non-existent co-ownership lot: a number appears in the EDD, it is sold and mortgaged, but it corresponds to no private part actually created, or else it corresponds to a volume that has remained a common part. The situation is found after successive divisions that were badly published, after the construction of attic space that was never regularised, or where a transitional lot (lot transitoire) was stipulated without complying with the requirements of Article 6-1 of the 1965 Law, as introduced by the ELAN Law No. 2018-1021 of 23 November 2018, which requires that the creation and composition of the transitional lot be stipulated in the co-ownership rules.

The mirror image of this situation is the annexation of a common part: a closed-off corridor, an integrated landing, a converted bin store, a covered courtyard. The occupier has de facto enjoyment of it, sometimes for several decades, without title. Two characterisations then compete. Either it is an encroachment without right, and the co-ownership association (syndicat des copropriétaires) may bring a claim for recovery of ownership (revendication) and for restoration, the real action being subject to a thirty-year limitation period. Or the occupier relies on acquisitive prescription (adverse possession) under Article 2272 of the French Civil Code and must establish continuous, peaceful, public and unequivocal possession, a condition rarely met where the charges have continued to be allocated as if the volume remained common.

This thirty-year prescription must not be confused with the five-year period of Article 42, paragraph 1, of the 1965 Law, reduced from ten to five years by the ELAN Law, which applies only to personal actions arising from the application of the law between co-owners or between a co-owner and the association. A claim for recovery of ownership is not a personal action.

What a discrepancy costs in terms of the usability of the asset

Commercial and office use

An investor acquiring a lot to install offices, a professional practice or an activity open to the public must check, in order: the contractual intended use in the rules, the existence of a simple or exclusive residential-use clause, the restrictions on access to and use of the common parts (lift, hall, hours, signage), and administrative compliance with regard to change of use. The EDD provides only an indication here. A lot designated office in the EDD in a building whose rules reserve the floors for exclusive residential use exposes the buyer to an action to stop the use brought by the association or by an individual co-owner, with a daily penalty.

The opposite situation deserves particular attention in distressed cases: a ground-floor shop whose rules prohibit certain activities (catering, extraction, noise nuisance) sees its rental value capped by the rules themselves, since the landlord cannot grant the tenant more rights than it holds. A tenant's request to change the authorised use of the lease (déspécialisation) will come up against the rules before it comes up against the landlord.

Short-term furnished lettings

The question has become central in Paris. In addition to the change-of-use regime, Law No. 2024-1039 of 19 November 2024 aimed at strengthening the tools for regulating tourist furnished accommodation has reinforced the association's powers: an obligation for the letting co-owner to inform the property manager (syndic) of the activity, entry of the question on the agenda of the meeting, and the possibility, for buildings intended exclusively for residential use, of adopting a prohibition clause by the double majority of Article 26 and not unanimously. An asset acquired on the basis of a short-term yield whose legal basis rests on an EDD referring to furnished or on mere tolerance is exposed to a meeting decision adopted by a majority that is now attainable.

Technical standards and works

Usability also depends on the interaction with the common parts: creation of an independent access, opening up a facade, running ducts, installing ventilation or a heat pump. These works affect the common parts or the external appearance and require authorisation from the general meeting under Article 25 b). Where the composition of the lot is itself uncertain, the meeting has a convenient ground for refusal, and the works timetable is suspended pending prior regularisation.

Resale, financing and liability

On resale, Article L. 721-2 of the French Construction and Housing Code requires the co-ownership rules and the schedule of division, together with the published instruments amending them, to be annexed to the preliminary agreement (promesse de vente). Incomplete delivery shifts the starting point of the withdrawal period of the non-professional buyer. An apparent discrepancy, documented in the file, becomes a systematic argument for renegotiation, and an undisclosed discrepancy opens the way to an action for mistake as to the essential qualities of the performance within the meaning of Article 1132 of the French Civil Code, or even for fraudulent concealment (réticence dolosive) under Article 1137, where the seller knew of the situation.

On financing, the bank and the notary reason in terms of designation. A lot whose footprint is disputed, whose ownership shares are inconsistent or whose legal existence is doubtful weakens the mortgage registration encumbering it. For an institutional creditor, the question arises acutely at the recovery stage: the payment order constituting a seizure of immovable property (commandement de payer valant saisie immobilière) must designate the property in accordance with the requirements of land publicity, pursuant to Article R. 321-3 of the French Code of Civil Enforcement Procedures, and the sale conditions (cahier des conditions de vente) will reproduce that designation. An imprecision as to the lot seized gives the debtor a ground of challenge at the orientation hearing and delays the sale by auction. Checking the consistency between the title and the EDD is therefore part of the security analysis, not only of the property analysis.

The means of regularisation and how to weigh them

The amendment to the schedule of division

The amendment to the schedule of division is the ordinary tool. It takes the form of a notarial deed published at the land registry (service de la publicité foncière), prepared on the basis of a survey by a chartered land surveyor (géomètre-expert). Its scope determines the applicable regime.

Where the aim is to correct a purely clerical error in the EDD without affecting the composition of the lots or the allocation of charges, a published corrective amendment is in principle sufficient, without a meeting decision. The situation is narrow and assumes that the rules themselves are accurate.

As soon as the operation alters the composition of a lot, creates or removes a lot, or affects the ownership shares, it goes beyond simple correction. The division of a lot or the merger of two lots belonging to the same co-owner requires the apportionment or addition of the shares, notification of the property manager and publication of the amendment in order to be enforceable against the other co-owners.

The general meeting decisions required

Three situations call for a vote:

• the disposal of a common part to a co-owner, which regularises an annexation, falls under the double majority of Article 26, and under unanimity if it affects the intended use of the building
• the modification of the allocation of charges made necessary by those works or that disposal may be decided by the meeting by the same majority as that required for the principal decision, pursuant to Article 11; outside that case, any modification of the allocation of charges requires unanimity
• the bringing of the rules into conformity with Articles 6-2 and 6-3, relating to special common parts and rights of exclusive enjoyment, which the property manager must place on the agenda pursuant to Article 6-4, by the majority of Article 24

Any decision adopted must then be formalised by a published instrument. A vote not followed by publication does not make the amendment enforceable against successive buyers: Article 13 is unambiguous.

The judicial route

It comes into play where the meeting refuses, or where the discrepancy is too old to be resolved amicably.

Article 12 of the 1965 Law provides for an action to revise the allocation of charges where the share corresponding to a lot is more than one quarter higher or lower than that which would result from an allocation complying with Article 10. It must be brought within five years of the publication of the rules, or within two years of the first transfer for value of a lot since the publication of the amendment. This second starting point is the lever most often overlooked by a recent buyer.

Article 43 also allows an allocation clause contrary to the mandatory provisions of the law to be deemed unwritten. This action is not bound by the period of Article 12, and the judge then makes a new allocation himself. The distinction between revision and a clause deemed unwritten therefore governs the whole procedural strategy. The remedies open to the co-owner and the applicable time limits are set out in our article on challenging an unlawful allocation of co-ownership charges.

Where the debate concerns the ownership of a volume, the real action for recovery of ownership, subject to a thirty-year period, falls within the jurisdiction of the judicial court (tribunal judiciaire) and in practice requires an expert report. Article 145 of the French Code of Civil Procedure allows that expert appraisal to be organised before any proceedings, which is often the right sequence: obtain a technical finding capable of being relied on before deciding between settlement and litigation.

Deciding before acquisition

The operational question is not whether regularisation is possible, but at what cost, within what time and at whose expense. A regularisation requiring only a published amendment is a matter of a few months. A regularisation requiring a vote by the double majority of Article 26 depends on the timetable of meetings and on the state of relations in the building, and therefore on a risk that the buyer does not control. A regularisation requiring a judicial expert appraisal and a claim for recovery of ownership extends over several years.

The contractual instruments to be used in the preliminary agreement are known and too rarely combined: a condition precedent of obtaining a general meeting resolution on the agenda of an identified meeting, a condition precedent of publication of the amendment, escrow of part of the price releasable on regularisation, a fixed price reduction if the buyer agrees to bear the risk, and an undertaking by the seller to bear the cost of the surveyor and of the deed. In the case of an acquisition of the shares of a company holding the asset, the discrepancy must be dealt with in the asset and liability warranty, with a specific statement on the composition of the lots and their conformity with the published rules.

Conclusion

A discrepancy between the schedule of division and the co-ownership rules is never a documentary problem. It is a revealing sign. It almost always signals an unregularised physical alteration, an old division that was badly published, or a tolerance that has become a practice. The reflex of mechanically giving the rules priority over the EDD is correct in principle and insufficient in practice: it says nothing about the real title, about possession, or about the majority that will have to be assembled to regularise.

Our position is clear: the consistency of the EDD and the co-ownership rules must be treated in due diligence on the same level as town planning and the letting position, and not left to a last-minute notarial reading. Before any firm offer on an older asset, in Paris in particular, have a cross-check carried out between the EDD and its published amendments, the annex setting out the allocation of charges, the attendance sheet of the last meeting and an on-site survey by a chartered land surveyor. If a difference appears, characterise it immediately by its route to regularisation, simple amendment, Article 26 vote or court action, and translate that characterisation into a condition precedent or a quantified discount. It is at that stage that the decision is made, not after signing.

Frequently asked questions

In the event of a contradiction, does the EDD or the co-ownership rules prevail? The co-ownership rules, a contractual document governed by Article 8 of Law No. 65-557 of 10 July 1965, prevail in principle over the schedule of division, which is merely a land publicity instrument within the meaning of Article 7 of Decree No. 55-22 of 4 January 1955. The EDD creates no rights and cannot alter the composition of a lot. The outcome is qualified where the EDD is incorporated in the rules and has been accepted by the co-owners: it may then acquire contractual force, and the dispute becomes a question of interpreting the constitutive deed.

Does an amendment to the schedule of division always require a vote at the general meeting? No. The correction of a purely clerical error in the EDD, with no effect on the composition of the lots or the allocation of charges, may be published without a meeting decision. On the other hand, any operation affecting a common part falls under the double majority of Article 26, and any modification of the allocation of charges requires unanimity, except in the case of Article 11 where it is made necessary by works or a disposal that has been voted. In all cases, the amendment must be published in order to be enforceable against successors in title, pursuant to Article 13.

What is the time limit for challenging an incorrect allocation of ownership shares? Article 12 of the 1965 Law provides for an action for revision where the share of a lot departs by more than one quarter from what Article 10 would require, within five years of the publication of the rules or within two years of the first transfer for value since the publication of the amendment. This second starting point benefits the recent buyer. If the allocation clause is contrary to the mandatory provisions of the law, an action based on Article 43 allows it to be deemed unwritten, without being bound by those periods, the judge then making a new allocation.

What should be done if a lot shown in the sale deed does not physically exist? The situation of a non-existent co-ownership lot first calls for characterisation: either the lot was never created by the title, or it corresponds to a volume that has remained a common part. In the first case, the buyer may bring an action for nullity or for a reduction in the price on the ground of mistake as to essential qualities, or even fraud if the seller knew of the situation. In the second, regularisation involves a transfer of the common part voted by the double majority of Article 26, followed by a published amendment. The liability of the person who drew up the deed must be examined in parallel.

Can an old annexation of a common part be time-barred? Yes, but the proof required is demanding. The co-owner must establish continuous, peaceful, public and unequivocal possession for thirty years within the meaning of Article 2272 of the French Civil Code, or ten years with good title and good faith. The continuation of an allocation of charges treating the volume as a common part, or the existence of meeting resolutions to that effect, is often enough to make the possession equivocal. The five-year period of Article 42, paragraph 1, of the 1965 Law does not apply: it concerns only personal actions, and not the real action for recovery of ownership.

Does a "commercial unit" entry in the EDD authorise the operation of a business? No. The designation in the schedule of division is an element of identification, not an authorisation. Operation requires cumulatively that the co-ownership rules contain no incompatible exclusive residential-use clause, that the use of the premises be regular under Articles L. 631-7 et seq. of the French Construction and Housing Code in Paris, and that the intended use comply with the applicable town planning document. An administrative authorisation never cures a contractual prohibition arising from the rules.

Does an EDD/rules discrepancy block bank financing? It systematically complicates it. The lender reasons on the designation of the encumbered property: a lot whose footprint or ownership shares are uncertain weakens the mortgage registration and, downstream, the property seizure procedure, since the payment order must designate the property in accordance with the land publicity requirements restated in Article R. 321-3 of the French Code of Civil Enforcement Procedures. In practice, the institution makes release of the funds conditional on production of a published amendment or a notarial certificate of consistency.