LexInter | August 20, 2003 | 0 Comments

ACTION TO TERMINATE A VIOLATION OF THE CO-OWNERSHIP RULES

FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE
On the first and second pleas, combined:

Whereas, according to the judgment under appeal (Aix-en-Provence, January 18, 2001) that Mr. Paul X …, since deceased, in whose rights are his heirs the consorts X …, owner of lots in a building in co-ownership, sued the syndicate of co-owners, the trustee and a certain number of co-owners for the rehabilitation of the common parts on which the latter had built verandas in violation of the co-ownership regulations;

Whereas some of the assigned co-owners object to the judgment of condemning them under penalty to remove the constructions high on the balconies then, according to the means:

1 / that it follows from article 15 of the law of July 10, 1965 that a co-owner can only take legal action to prevent an unlawful use of the common parts if he justifies that the infringements thus caused cause either a collective disturbance to the enjoyment of the common parts, or an injury which is personal to him;

that considering, to judge admissible the action of Mr X … in removing verandas built on common parts, that the condition of disturbances suffered personally in the private enjoyment of his share of co-ownership does not find to apply in l ‘case, the Court of Appeal violated article 15 of the law of July 10, 1965, together article 31 of the new Code of Civil Procedure;

2 / that according to the report produced at the debates of the general meeting of the syndicate of co-ownership of the Le Palais Royal building complex of June 5, 1987, it decided: “following the study carried out since the last general meeting, an apartment on the 2nd floor of building 6/8 was fitted with a glass roof on its north balcony. Those present considered that the scheme was satisfactory and could be generalized (…) In any event , the assembly unanimously confirms: a) that no such transformation will be authorized on the south facades, b) that the closure of a balcony requires that the facade walls remain in the original colors , that no radiator is installed, that we store neither refrigerator, nor unsightly objects.The only tolerated curtains will be white curtains “; only by stating that the assembly has validly deliberated only on the prohibition of verandas on the south facade and on the aesthetic prescriptions to be observed when installing glass roofs on the north facade and that, strictly speaking, therefore, there was no vote on the principle of authorizing the installation of verandas on the north facade, to consider that the common law expressed in the co-ownership regulations did not questioned in a valid way by the deliberation of 1986 nor by that of 1987, the court of appeal distorted the minutes of the co-ownership meeting which was submitted to it, from which it resulted that the principle of authorizing the installation of verandas on the north facade was acquired, thus violating thearticle 1134 of the Civil Code;

3 / that according to the report produced at the debates of the general assembly of the syndicate of co-ownership of the Le Palais Royal building complex of June 5, 1987, it decided: “following the study carried out since the last general meeting, an apartment on the 2nd floor of building 6/8 had a glass roof on its north balcony. Those present considered that the scheme was satisfactory and could be generalized. (…) In any case cause, the assembly confirms, unanimously: a) that no such transformation will be authorized on the south facades, b) that the closing of a balcony requires that the facade walls remain in the colors of origin, that no radiator is installed, that one stores neither refrigerator, nor unsightly object.The only tolerated curtains will be white curtains “; considering that the co-owners having set up a veranda on the balcony of which they had the use have not strictly speaking obtained an authorization from the union, the Court of Appeal once again misrepresented the minutes of the general meeting of co-ownership which was submitted to it, which carried exactly the opposite, tainting its decision with a violation of article 1134 of the Civil Code;tainting its decision with a violation of article 1134 of the Civil Code;tainting its decision with a violation of article 1134 of the Civil Code;

But given that having noted, for reasons adopted, that the co-ownership regulation provided that the balconies and guardrails constituted common parts and stipulated the prohibition to build any construction there, even light, and retained, by an exclusive sovereign interpretation of denaturing that the ambiguity of the terms of the minutes of the general meeting of July 5, 1987 made it necessary, that there had been no vote on the installation of verandas in the North facades, the court of appeal, which exactly decided that the action of Mr X … was admissible without it being forced to demonstrate the existence of a personal and special prejudice distinct from that which suffers the collectivity of the members of the union, has legally justified its decision;

FOR THESE REASONS :

DISMISSES the appeal;

Condemns, together, Mrs Y …, and MM. Z … and A … at the costs;

Considering article 700 of the new Code of Civil Procedure, condemns, together, Mrs. Y … and MM. Z … and A … to pay the sum of 1900 euros to consorts X …;

Thus done and judged by the Court of Cassation, Third Civil Chamber, and pronounced at the public hearing of January twenty-ninth, two thousand and three by Mr. Chemin, in accordance with article 452 of the new Code of Civil Procedure.


Leave a Comment

Your email address will not be published.


CAPTCHA Image
Reload Image