The legal framework governing co-ownership, or shared property rights, is based on two main types of legal actions: personal actions and real actions. According to the French law no. 65-557 of 10 July 1965, article 42, the rules for prescription—meaning the time limits within which legal actions can be taken—in co-ownership law follow the general rules for personal actions set out in article 2224 of the Civil Code. This article states that personal or movable rights, such as those involving debts or movable property, expire after five years from the day the right holder became or should have become aware of the facts allowing them to act. This principle was reinforced by the ELAN law (no. 2018-1021) of 23 November 2018. In contrast, article 2227 of the Civil Code outlines the rules for real immovable actions, such as property rights over land or buildings, which are generally not subject to prescription, but when they are, the time limit is thirty years from the day the right holder became or should have become aware of the facts allowing them to act.
The central issue in co-ownership law is determining the nature of the legal action being taken. Personal actions, which involve movable property or personal rights, prescribe after five years, while real immovable actions, involving property rights over land or buildings, prescribe after thirty years. In theory, this distinction is clear, but in practice, it can be complicated, especially when it comes to actions aimed at restoring or demolishing unauthorized works on common areas of a property.
The Court of Cassation, France's highest court for civil and criminal matters, has established a key criterion for distinguishing between personal and real actions in such cases: the concept of encroachment. Encroachment refers to the unauthorized use or appropriation of a property or area by a party that does not have the legal right to do so. If the unauthorized work on a common area constitutes an appropriation, it is considered a real action and is subject to the thirty-year prescription. If it does not constitute an appropriation, it is considered a personal action, which prescribes after five years.
For example, the Court of Cassation has ruled that the creation of a recess in a floor to connect two adjacent properties, carried out more than ten years ago, could no longer be the subject of an action for restoration by the Syndicat des copropriétaires (the owners' association), since it was not an appropriation of the common areas but simply unauthorized works. However, in other cases, such as the piercing of a dividing wall to convert a window into a window door, the Court has considered this an appropriation of the common areas, making the action for restoration subject to the thirty-year prescription.
In addition to these rules on prescription, co-ownership law includes other specific deadlines. Article 42 paragraph 2 of law no. 65-557 of 10 July 1965 sets a two-month deadline for co-owners to contest decisions made at a general meeting, starting from the notification of the meeting's minutes. These actions are only available to co-owners who opposed or failed to attend the meeting. Article 12 of the same law allows any co-owner to challenge the allocation of charges within five years of the publication of the co-ownership regulations in the property register. This action is limited to cases where the claimant's share of the charges is more than a quarter higher or another co-owner's share is more than a quarter lower than it would have been under the law. A second deadline of two years begins from the first change in ownership after the publication of the regulations. Finally, the action to have a clause in the co-ownership regulations declared invalid due to being contrary to the law is not subject to any time limit.
Legal Prescription Regimes in Co-Ownership Law in France
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