Real estate law
The Cour de Cassation confirms that an association of co-owners can sell the common parts of a building by a decision taken by a majority of four-fifths of the votes.
During a general meeting, the co-owners of a building in Woluwe-Saint-Pierre voted to transfer certain common parts of the building.
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:
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, §1er2°, 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 (email@example.com), Caroline Compagnon (firstname.lastname@example.org) and Eline De Mol (email@example.com), lawyers, CEW & Partners.