A subtle distinction with major consequences
In condominiums, and especially in urban areas, the existence of a roof terrace or courtyard for private use is an undeniable benefit to its occupants, and of course these spaces significantly increase the market value of a property.
However, both property owners and potential buyers are often misinformed about the exact extent of their rights over the outdoor spaces that benefit their flat.
It is common, for example, to see sales advertisements that include outdoor areas adjoining the property being sold as if they were private property - and therefore fully owned by the seller and sold as such - whereas the legal reality may be quite different.
This misunderstanding of the rights held and therefore transferred can lead to conflict situations, which could be avoided by a careful examination of the co-ownership regulations, transfer deeds and general meeting minutes prior to the sale.
Terraces and other internal courtyards allocated for the exclusive use of a co-owner may have different legal status, and while the distinction may appear subtle at first sight, the legal consequences can be significant.
Law no. 1.329 of 8 January 2007 relating to co-ownership of built-up properties sets out a fundamental distinction regarding the nature of rights existing within a co-ownership.
These are as follows:
- Private property, which is the exclusive property of each co-owner,
- Common areas, which are owned jointly by all or some of the co-owners,
- Thecommon areas for private use, which are the common areas allocated for the exclusive use or benefit of a lot. They are owned jointly by all the co-owners.
Since law no. 1.531 of 29 July 2022, the existence of common areas for private use is subject to their express mention in the co-ownership regulations, which should limit situations of legal uncertainty.
However, for situations prior to the entry into force of law no. 1.531 of 29 July 2022, uncertainties may persist, as prior to this law, the granting of a right to private use of a common area could also result from a decision of the general meeting, granting exclusive use to a co-owner.
The question then arose as to the extent of the right to use the common area, which could be:
- a precarious and revocable right of use, or
- an exclusive, real and perpetual right of use, attached to the ownership of the co-owner's private lot, allowing full and unrestricted enjoyment and which could not be revoked without the consent of the beneficiary.
If the co-ownership regulations or the decision of the general meeting grant a co-owner an exclusive right to use a common area without restriction, it will be difficult to challenge the continuity of this right.
The issue becomes more delicate when a co-owner makes exclusive use of a common area, due to the configuration of the premises, sometimes for several decades, outside any legal framework generating rights. In this respect, it should be remembered that a statement conferring a right of use over a common area in a deed of ownership cannot, as such, give rise to a right and cannot be enforced against the "Syndicat des Copropriétaires".
However, a co-owner whose rights are called into question may wish to consider this option, particularly if they have been using the disputed space for many years. In this situation, the Syndicat des copropriétaires could be challenged based on prescription, which allows "the acquisition of a property or a right by the effect of possession".
For the conditions of prescription to be met, there must be continuous and uninterrupted, quiet, public, and unequivocal possession of the property, as owner, for a period of ten or thirty years, depending on the complex situations.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
