Challenging an unlawful apportionment of co-ownership charges

A co-owner who receives the annual statement of accounts and finds that he pays more than a neighbour with a flat of the same size, or that he is being charged for the upkeep of a lift although his lot is on the ground floor, faces a precise question: is this apportionment consistent with the co-ownership rules (règlement de copropriété) and with the law? The answer determines everything, because depending on the nature of the irregularity, the time limits for acting and the remedies differ radically. An unlawful apportionment clause can be challenged without any time limit, whereas a general meeting decision that has been wrongly applied can be challenged within two months only. This article sets out, from the co-owner's point of view, how to identify a non-compliant apportionment, which legal levers to use and within what time limits to act in order to avoid losing the right to do so.

How co-ownership charges must be apportioned

The basic rule is found in Article 10 of Law No. 65-557 of 10 July 1965 establishing the status of co-ownership (copropriété) of built properties. This provision distinguishes two categories of charges, and that distinction governs any later challenge.

General charges

General charges relate to the preservation, upkeep and administration of the common parts. They include, for example, façade renovation, re-roofing, the fees of the property manager (syndic) or the building insurance. Article 10 requires them to be apportioned in proportion to the relative values of the private parts, that is, to the co-ownership shares (tantièmes) attached to each lot. These shares are fixed in the schedule of division (état descriptif de division) according to the composition, surface area and location of each lot, regardless of how it is used.

In practical terms, a co-owner holding 120/1000ths pays 12% of these charges, whether he lives in his flat or leaves it empty all year. The logic is one of property ownership: the person who holds a larger share of the building bears a larger share of its upkeep. Where the lot is let, the separate question of the share that can be recovered from the occupant is dealt with in our article on co-ownership charges between tenant and owner.

Special charges

Special charges are those incurred for collective services and common items of equipment. They must be apportioned, again under Article 10, according to the objective utility that these services and items of equipment have for each lot. The criterion is not actual use but potential utility.

The clearest example is the lift. The owner of a ground-floor lot derives no utility from it in order to reach his lot: he should therefore not, in principle, contribute to lift charges, or only in a reduced proportion if the lift also serves a cellar in the basement. Conversely, an occupant of the top floor bears a larger share. Collective heating, the upkeep of the green spaces of a given building or the cleaning of a stairwell follow the same logic of utility.

Since the ALUR Law of 24 March 2014, every published co-ownership rulebook must state the factors justifying the apportionment adopted and indicate the bases of calculation. This requirement makes it easier for a co-owner who wishes to check the consistency of his share.

Unlawful apportionment or merely misapplied apportionment: the decisive distinction

Before taking any step, the exact nature of the problem must be identified. Two very different situations lie behind the idea of a challengeable apportionment, and they do not open the same remedies.

The first scenario is an apportionment that does not comply with the co-ownership rules. The rules are correct and comply with the law, but the property manager, a general meeting resolution or a statement of charges departs from them. This is an error of application.

The second scenario is an apportionment that is unlawful by nature: the apportionment clause set out in the co-ownership rules themselves contradicts Article 10 of the 1965 Law. The defect then lies in the founding document of the co-ownership, not in its application. This is the case of an unlawful apportionment of co-ownership charges in the strict sense.

This distinction is not theoretical. Challenging the apportionment of co-ownership charges in the first case requires challenging a general meeting decision within a very short period. In the second case, the law provides an action that is not subject to limitation. Confusing the two loses the case.

Case 1: the apportionment does not comply with the co-ownership rules

Take a co-owner in a building of twenty lots. His co-ownership rules provide for a clear apportionment of lift charges excluding the ground-floor lots. Yet in his call for funds, the property manager charges him a share of the lift. The irregularity does not come from the rules, which are compliant, but from their defective application.

Challenging the statement with the property manager

The first step, and the least confrontational, is to write to the property manager by registered letter with acknowledgement of receipt to point out the error, citing the applicable article of the co-ownership rules and the charge line in dispute. Many data-entry errors or errors in the apportionment key are corrected at this stage, without proceedings. A copy of the rules, of the minutes of general meetings and of the statements for the financial years concerned should be kept.

Challenging a general meeting decision

The difficulty arises where the erroneous apportionment results from a decision voted at a general meeting, for example a vote approving accounts that incorporate an apportionment key that does not comply with the co-ownership rules. Article 42 of the Law of 10 July 1965 then applies:

Actions seeking to challenge decisions of general meetings must, on pain of forfeiture, be brought by dissenting or absent co-owners within a period of two months from notification of those decisions.

Three points deserve particular attention. First, only dissenting co-owners (those who voted against) and absent co-owners (those who were absent or not represented) may bring an action. A co-owner who voted for the resolution can no longer challenge it. Second, the period is two months and runs from notification of the minutes, which must be carried out by the property manager. Finally, forfeiture is automatic: once the period has expired, the decision becomes final and unchallengeable, even if it is irregular.

This two-month period is the most frequent trap. A co-owner who discovers an abnormal apportionment several months after the meeting, while going through his accounts, is often met with a time bar. Hence the value of checking each set of minutes as soon as it is received. The time during which a resolution remains open to challenge and then becomes binding is set out in our article on the period of validity of a general meeting decision.

Case 2: the co-ownership rules themselves are contrary to the law

This is where the truly unlawful apportionment of co-ownership charges lies. The apportionment clause set out in the rules breaches Article 10, for example because it makes ground-floor lots bear lift charges from which they derive no utility, or because it apportions special charges by reference to the general shares alone, disregarding the utility criterion.

The clause deemed not written (Article 43)

The protective mechanism is found in Article 43 of the 1965 Law:

All clauses contrary to the provisions of Articles 6 to 17, 19 to 37, 41-1 to 42 and 46 and to those of the decree made for their application are deemed not written.

As Article 10 appears in this list, an apportionment clause that contradicts it is deemed not written. The consequence is crucial: the Cour de cassation consistently holds that a clause deemed not written is treated as never having existed. An action seeking a declaration that a clause is deemed not written is not subject to any time limit and is not subject to limitation. A co-owner may therefore act many years after buying his lot, and even if he regularly voted to approve accounts applying that clause.

Another major difference from Case 1: any co-owner may act, including one who was present and in favour at past meetings. The restriction to dissenting and absent co-owners does not apply, because the aim is not to challenge a general meeting decision but to have an unlawful clause of the rules set aside.

The new apportionment ordered by the judge

Obtaining a declaration that a clause is deemed not written is not enough: a new apportionment key is needed to replace the one that has been set aside. Since the ELAN Law of 23 November 2018, Article 43 provides that where the judge deems a clause on the apportionment of charges not written, he himself carries out the new apportionment. The co-owner therefore does not have to wait for a vote of the general meeting, which is often difficult to obtain since a change to the apportionment in principle requires unanimity under Article 11. On the cases in which that unanimous vote is required, see our analysis of the amendment of the co-ownership rules.

This new apportionment takes effect for the future, but Article 43 also provides that it takes effect from the first day of the financial year following the date on which the court decision became final. The co-owner therefore does not necessarily recover all sums overpaid in the past: the fact that the action is not subject to limitation is not the same as unlimited retroactive repayment. A precise review of the situation with a lawyer makes it possible to gauge the real financial stake before starting proceedings.

The revision action where the apportionment is disproportionate

Between the error of application and the unlawful clause there is a third case, often overlooked: the apportionment set out in the co-ownership rules is lawful in principle, but results in a share that is manifestly disproportionate for a lot. Article 12 of the 1965 Law then provides a revision action.

This provision allows each co-owner to bring proceedings for revision of the apportionment of charges where the share corresponding to his lot is more than one quarter higher, or where the share of another co-owner is more than one quarter lower, than the share that would result from an apportionment in accordance with the statutory criteria. The action must be brought within two years of the first publication of the co-ownership rules in the land register (fichier immobilier), or within the same period from a transfer of the lot for consideration, in the case of the purchaser.

The one-quarter threshold is strict: a disproportion of 15% or 20% is not enough to open this route. The two-year period, longer than that of Article 42, remains far shorter than the absence of limitation under Article 43. This is why the choice of legal basis is decisive: a purchaser who discovers an unfavourable apportionment has an interest in first checking whether the clause is unlawful, which reopens the action not subject to limitation, before falling back on the revision under Article 12, which is more constrained in time.

Summary of the time limits to know

The regime of time limits in itself summarises the strategy for a challenge. Three time horizons coexist.

• Challenge to a general meeting decision misapplying the co-ownership rules: two months from notification of the minutes, reserved to dissenting and absent co-owners (Article 42).
• Revision action in respect of an apportionment that is lawful but disproportionate by more than one quarter: two years from publication of the co-ownership rules or from the acquisition of the lot (Article 12).
• Action seeking a declaration that an apportionment clause contrary to Article 10 is deemed not written: not subject to limitation, open to any co-owner (Article 43).

A single case may call on several of these bases. A co-owner may, for example, rely on Article 43 to set aside the unlawful clause and, in the alternative, on Article 12 to obtain a revision if the judge considered the clause valid.

The practical procedure for a challenge

Gathering the documents and mapping the apportionment

Before any action, the co-owner must gather the co-ownership rules with the schedule of division, the minutes of general meetings for recent financial years, the individual statements of charges and the calls for funds. The aim is to reconstruct the apportionment key actually applied and to compare it, line by line, with that provided for in the rules and with the criteria of Article 10. For special charges, it must be shown that the service or item of equipment has no utility for the lot concerned, for example by demonstrating the ground-floor location in the case of the lift.

Attempting an amicable resolution

A registered letter to the property manager, followed by a request to have a question placed on the agenda of the next general meeting, sometimes makes it possible to settle the dispute without proceedings. The co-owner may ask the general meeting to vote a change to the apportionment. A caution, however: changing an apportionment key that complies with the law requires unanimity under Article 11, which often makes this unrealistic. By contrast, where the clause is unlawful, the general meeting may correct it by a reduced majority, but a refusal never deprives the co-owner of his court action based on Article 43.

Bringing the case before the judicial court

Co-ownership disputes fall within the jurisdiction of the judicial court (tribunal judiciaire) of the place where the building is located, with representation by a lawyer being compulsory. The action is brought against the co-ownership association (syndicat des copropriétaires), represented by its property manager. Depending on the basis chosen, the co-owner will seek annulment of the general meeting decision (Article 42), revision of the apportionment (Article 12) or a declaration that the clause is deemed not written together with a new apportionment fixed by the judge (Article 43). A court-appointed expert is frequently ordered to determine, lot by lot, the utility of the items of equipment and to recalculate the shares.

For a company that owns commercial premises or offices within a mixed-use co-ownership, the stakes are often higher still: the charges for a commercial unit at the foot of the building may be overstated if the key does not correctly distinguish the utility of the equipment reserved for residential units. The same analytical grid applies, but the amounts at stake all the more justify a rigorous technical check.

Conclusion

Challenging the apportionment of co-ownership charges is by no means a battle lost in advance, provided that the irregularity is correctly characterised. An apportionment that is merely misapplied must be challenged within two months, on pain of irreversible time bar, which requires constant vigilance on receipt of the minutes. An unlawful apportionment of co-ownership charges, that is, a clause of the co-ownership rules contrary to Article 10 of the 1965 Law, by contrast opens an action not subject to limitation and allows the judge to redo the apportionment himself. Between the two, the revision action under Article 12 offers a way out limited to disproportions of more than one quarter, within a period of two years.

The position taken here is clear: never start proceedings without first identifying the right basis, because each route has its own conditions and its own time limit. Before taking any step, have your co-ownership rules and your last three statements of charges analysed by a lawyer who practises in co-ownership law, in order to determine whether you are facing a two-month challenge, a two-year revision or an action not subject to limitation. This preliminary characterisation in itself determines your prospects of success.

Frequently asked questions

What is the time limit for challenging the apportionment of co-ownership charges?

It all depends on the nature of the problem. A general meeting decision is challenged within two months of notification of the minutes, and only by dissenting or absent co-owners (Article 42 of the Law of 10 July 1965). A revision action in respect of a disproportionate apportionment is subject to a two-year limitation period (Article 12). By contrast, obtaining a declaration that an apportionment clause contrary to the law is deemed not written is not subject to limitation (Article 43).

Can an unlawful apportionment clause be challenged without any time limit?

Yes. Where the apportionment clause set out in the co-ownership rules contradicts Article 10 of the 1965 Law, it is deemed not written under Article 43. The Cour de cassation consistently holds that an action seeking a declaration that a clause is deemed not written is not subject to any time limit. It is open to any co-owner, even one who bought his lot long ago and even one who voted to approve the accounts.

Does the ground-floor co-owner have to pay lift charges?

In principle no, because Article 10 requires special charges to be apportioned according to the utility of the equipment for each lot. A ground-floor lot derives no utility from the lift in reaching its flat. A share may nonetheless remain payable if the lift serves a cellar or a basement car park used by that lot. A clause that made the ground floor pay the full lift charges would be liable to be deemed not written.

Can I recover charges overpaid in previous years?

Not necessarily in full. Article 43 provides that the new apportionment fixed by the judge, after setting aside an unlawful clause, takes effect on the first day of the financial year following the date on which the decision became final. The fact that the action is not subject to limitation therefore does not translate into retroactive repayment of all sums paid. The financial stake must be assessed precisely with a lawyer before acting.

Is a lawyer needed to challenge the apportionment of charges?

Yes, co-ownership disputes fall within the jurisdiction of the judicial court of the place where the building is located, with representation by a lawyer being compulsory. The action is brought against the co-ownership association represented by its property manager. A court-appointed expert is often needed to recalculate the shares lot by lot according to the utility of the equipment, which makes technical support indispensable.

What should be done if the general meeting refuses to correct an unlawful apportionment?

A refusal by the general meeting never deprives the co-owner of the right to bring court proceedings. Where the clause is contrary to Article 10, the judge may declare it not written and himself fix a new apportionment, without a unanimous vote being required. The amicable route remains useful for seeking a quick settlement, but its failure leads directly to the court route based on Article 43.

Can a purchaser challenge an apportionment that he accepted on purchase?

Yes, acceptance of the co-ownership rules on the sale does not prevent a challenge to an unlawful apportionment clause, since that clause is deemed not written and therefore treated as never having existed. In addition, the purchaser has a period of two years from the acquisition of his lot to bring a revision action under Article 12 if the apportionment, although lawful, results in a disproportion of more than one quarter.