Legal column Fabienne Atkin
outlines the procedure for buying a property within a co-ownership in France, including ski apartments
A
co-ownership (copropriété) is a legal structure applicable to all
properties in France that have shared facilities. The most common type is an apartment complex, although a co- ownership can also consist of individual villas within a domain such as a golf resort or a holiday village. A copropriété comprises
the private areas (les parties privatives), also known as private lots, which are individually owned by each owner, alongside the communal areas (les parties communes), which are jointly owned by the co-owners. With ownership of each
private lot comes parts of ownership of the communal areas (tantièmes or fractions), which will be used to determine the co-owners’ respective share of the co- ownership charges and their contribution to the works to the communal areas that are approved by the property’s group of co-owners. The distinction between the
private and communal areas can sometimes be blurred – for instance, where a co-owner has an exclusive right to use a communal area such as a ski locker within a communal room or a terrace. However, the division deed
(état descriptif de division) will clarify exactly what constitutes the privately owned lots and what is included in the communal areas. It will also allocate a number to each of the private lots and confi rm their corresponding fractions of ownership. By contrast, the communal areas will not be numbered.
DIVISION DEED The division deed is a compulsory document prepared by the notaire or a land surveyor (géomètre) when the co-ownership is created and will often – albeit not automatically – be incorporated into the co-ownership rules (règlement de copropriété), which set out the rights and obligations of each owner in relation to the use of the complex as a whole and of their specifi c private lots. The co-ownership rules and
division deed can subsequently be modifi ed, for various reasons, such as a change of use of a lot or a renumbering/ re-fractioning due to a division or fusion of lots. The co-ownership rules and
division deed will also provide details of the initial managing agent (the syndic) who is usually the developer until a new managing agent is elected by the co-owners at their fi rst meeting. The managing agent is responsible for the co- ownership’s administration. The legal process of buying
and selling a property within a co-ownership remains a two-stage process, with the signature of a preliminary contract (compromis de vente or promesse de vente) followed by the signature of the fi nal sale and purchase deed (acte de vente) a few weeks or months later, once all the pre-completion searches have taken place. The intervention of a notaire
remains compulsory when it comes to selling/buying a co- ownership property. However, some particularities will arise where the property sold is within a co-ownership, as developed below.
84 FRENCH PROPERTY NEWS: November/December 2023
DUTY OF DISCLOSURE The sellers will be required to make specifi c declarations in the contract to confi rm that they have not acted in such a way as to contravene the co-ownership rules, which would, for instance, be the case if they changed the use of their lots or carried out any unauthorised works or unlawful appropriation of a communal area. Sellers of French properties
will be familiar with their duty to produce a set of diagnostic surveys to their buyers before signature of the contract. The surveys provide various information as to the condition of the property, including its electrical installation and energy ratings. While this requirement still remains, sellers are only expected to obtain diagnostic surveys in respect of their private lots. It is indeed the responsibility
of the committee of co-owners to commission diagnostic surveys for the communal areas of the complex. These surveys, if any at all exist, are rarely updated. The sellers will also need to
provide a certifi cate confi rming the habitable surface area of their own apartment/villa lot. If the actual measurement is fact smaller by one-twentieth (or more) than the fi gure given in the contract, the buyers would be entitled to claim a reduction in the sale price within one year following completion of the purchase. It should however be noted
that areas which are smaller than 1.8m in height, such as alcoves or sloping ceilings, are excluded from the calculation, as are balconies and terraces, which explains why there is often a discrepancy between the surface area and the measurement on the certifi cate. Furthermore, and before
the contract is signed, the buyers must be provided with additional documents relating to the co-ownership including: 1. The co-ownership rules
and division deed, as well as their modifi cations. 2. The plans of the lots and of
the complex where available. 3. The minutes of the general
meetings for the three years preceding the year of purchase
4. Documents relating to the
fi nancial situation of the co-ownership. 5. The maintenance log of
the building, indicating the various works carried out and the relevant insurance and contractors’ details. A thorough inspection of all
the co-ownership documents is essential, in particular, by the buyers before they commit to the purchase.
DUE DILIGENCE Buyers should, for instance, closely review the co- ownership rules and division deed, and any available plan, to ensure that there is no discrepancy as to the description of the lots, their location, use, numbering and the fractions of ownership that appear in the contract. Any inconsistency should
be investigated before the contract is signed, as it may be indicative of a potential irregularity or a breach of the co-ownership rules. The buyers are also well
advised to study the co- ownership rules to ensure that there is nothing that would prevent them from using the property as they wish. Particular attention must
be drawn to the wording of the clause d’habitation bourgeoise (residential use clause), which is a relatively standard clause that can prohibit short-term rentals
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