Commonhold: co-owner's rights and obligations
The legal regime of the co- ownership allows the distribution of the ownership of a collective building between several people called co-owners. This regime sets the operating rules for this small community so that it lives in harmony.
The co-ownership system
Virtually all apartments are governed by the commonhold system which applies to all co-owners and their tenants. Under certain circumstances, houses and commercial or professional premises may be governed by this legal system.
Irrespective of the type of property in commonhold, it always comprises two components that are intrinsically linked from a legal point of view:
- privately owned areas (accommodation rooms for example)
- a share expressed as a proportion (often thousandths) of commonly owned areas, (green areas, elevators, boiler room, etc).
These two components, i.e. the privately owned areas and a share in commonly owned areas, constitute a section that cannot be divided.
The law also sets compulsory rules for the use and management of buildings governed by the commonhold legal system. The rules are included in the commonhold regulations that contain both information on the building in general and the intended use of the private areas in your section. You must therefore comply with these regulations.
For example: if you live in a building intended solely for residential use, it is prohibited to use it as business premises. There may be a certain leeway for self-employed people. You should therefore check the commonhold regulations to make sure. In theory, the basic administrative domiciliation of an individual company’s registered office on premises intended for residential use is, however, permitted. For a company, only temporary domiciliation is possible. However, the simple administrative domiciliation of the seat of a sole proprietorship in a residential premises is in principle permitted, especially in the event of exercise of the activity outside. For a company, it is also possible to establish domiciliation at the domicile of its legal representative, but only at the domicile of the officer (CEO or manager for example), and in no case that of a partner.If a contractual or legislative provision precludes the domiciliation of the head office of a legal person in the domicile of its manager, this domiciliation remains possible for a maximum duration of 5 years. The manager must specify the temporary nature of his domiciliation when registering and inform, by LR with AR, the owner of the premises.
Even though there are similarities between commonhold regulations, you should be aware of any specific rules in your own. They may include restrictions in the use of your commonhold sections and protect you against abuses from the other co-owners. If in doubt, contact the property manager, the owner if you are a tenant or your notaire.
The condominium syndicate
All the co-owners of a building form the syndicate of co- ownership . This association has the same legal capacity as companies. It meets necessarily each year and this meeting is called the general meeting of the co-owners.
Its purpose is to pronounce:
- on the accounts of the past year,
- on the discharge to be given to the trustee,
- on the estimated budget of the future year, ie the amount of the quarterly provision of expenses to to pay by each,
- on the provision for construction funds since January 2017 (except for new buildings and condominiums of less than 10 lots),
- to renew the trustee in his duties or to choose a new one,
- to elect the members of the trade union council,
- to set the threshold for consultation of the trade union council and to put companies in competition with each other,
- to vote for the work necessary for the maintenance of the common parts, etc...
Depending on the type of decision to be taken, the law imposes various majority rules at the General Meeting and even unanimity for the most important decisions.
By law, the co-owners’ association is made up of two bodies:
- the property manager (professional or voluntary)
- the co-owners’ association board (comprising elected co-owners) with a view to implementing decisions taken by a General Meeting.
The co-owners’ association board is responsible for assisting the property manager and overseeing its management. The co-owners’ association is authorised to enforce and amend the commonhold regulations, either when the law changes or when requested by a co-owner. For example: If you decide to divide your commonhold unit in two or combine two units to make a single one, the commonhold regulations have to be amended by a notarised instrument. Contact your notaire who will tell you the procedure to follow to ensure you comply with the legislation in force.
Under certain circumstances, particularly if your repair work affects the commonly owned areas (drilling through a load-bearing wall for example) or has an impact on the general appearance of the building (screening off a balcony for example), the General Meeting has to give its approval and you must send your application to the property manager for it to be included on the next meeting’s agenda. Remember that there is usually only one meeting a year and you can only carry out the works once you have been authorised to do so!
Under certain circumstances (dividing a unit for example), a chartered surveyor will need to be appointed and a notarised instrument drawn up amending the commonhold regulations. Ask your notaire to estimate the total cost of the amendment you plan before beginning the works.
Convocation of a general meeting in the absence of a trustee
When the co- ownership has no trustee, the law of August 6, 2015 now allows any co-owner to convene the general meeting to appoint a new trustee. It is no longer necessary to systematically resort to justice in such a case.
Update of the co-ownership regulations
To harmonize the commonhold regulations, sometimes old, with the laws and regulations made since their establishment, the general meeting may make modifications adopted by a simple majority of present or represented owners (Article 24 of the Law July 10, 1965). The publication of these changes to land registration service is performed to the fixed registration fee (not the proportional tax ). These adaptations can help remove the clauses contrary to the regulations or, instead, to insert mandatory clauses that are lacking.
Recent legislative developments, including notes on the law for access to housing and a renovated town planning (known ALUR law) of 24 March 2014, which namely creates a new governance regime for small commonhold and who wants to facilitate the management and decision-making of the co-owners.