The Cour de Cassation confirms that an association of co-owners can sell the common parts of a building without changing the proportion of the common parts relating to each private lot, provided that the decision is taken by a majority of four-fifths of the votes.

At a general meeting, the co-owners of a building in Woluwe-Saint-Pierre voted to transfer certain common parts of the building, without changing the proportion of the common parts relating to each private lot.

One of the co-owners, unhappy with this decision, then applied to the Justice of the Peace for the canton of Woluwe-Saint-Pierre to have the general meeting's decision overturned.

The plaintiff, whose claim was dismissed by the Justice of the Peace, then appealed this decision to the French-speaking Court of First Instance in Brussels.

As her appeal was rejected, the plaintiff appealed to the Supreme Court against this decision.

Before the Court of Cassation, the plaintiff requests that the following two questions be referred to the Constitutional Court for a preliminary ruling:

1. " Article 577-7 §1^erThis is the case, for example, with the sale of the common parts of an immovable of which it is not itself the owner, thereby depriving the co-owner(s) refusing the sale of their property, does it violate articles 10, 11 and 16 of the constitution to institute a difference in treatment between co-owners of a building or group of buildings and owners of individual buildings, who cannot be forced to sell their building, in whole or in part? "

2. " Article 577-7 §1^er2° e) of the Civil Code, in that it allows the general meeting to sell, by a majority of four-fifths of the votes cast and not unanimously, and therefore, where applicable, against the wishes of one or more co-owners, common parts of the building of which it is not the owner, whereas any natural or legal person has the right to respect for his or her property and no one may be deprived of his or her property, except in the public interest, violate Article 16 of the Constitution? does it infringe Article 16 of the Constitution, in conjunction with Article 1 of the Constitution, which states that every natural or legal person has the right to respect for his or her property and that no one may be deprived of his or her property, except in the public interest?^erparagraph 1^erof the first additional protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms? "

Article 16 of the Constitution states that :

"No one may be deprived of his property except in the public interest, in the cases and in the manner established by law, and subject to fair and prior compensation. ".

In its judgment of 18 November 2021, the Constitutional Court ruled that Article 577-7 §1, 2°, e), of the former Civil Code did not violate Article 16 of the Constitution.

In its ruling of 9 March 2023, the Cour de Cassation (French Supreme Court) stated that, while decisions to dispose of common areas must be taken by a four-fifths majority, a minority of co-owners may be deprived of their ownership rights against their will.

However, the Cour de Cassation emphasised that this deprivation of property rights is not without consideration, since a portion of the sale price is guaranteed to them and a judicial review procedure is provided for.

The Court of Cassation therefore dismissed the plaintiff's appeal on the grounds that ". article 577-7, §1^er2°, e), of the former Civil Code strikes a fair balance between the imperatives of the general interest and those of protecting the right to respect for property. ".

After several years of proceedings during which we assisted the co-owners' association, it finally won its case, putting an end to the legal crusade led by one of the building's co-owners.

For more information, please contact Laurent Verbraken (laurent.verbraken@cew-law.be), Caroline Compagnon (caroline.compagnon@cew-law.be) and Eline De Mol (eline.demol@cew-law.be), lawyers, CEW & Partners.