1. Real right: time limit
2. Promise of sale: breach of contractual stipulations
3. Breach of the obligation to deliver
4. Compensable loss for the seller in case of error relating to the surface area of the building
5. Surface area of private parts: consideration of loggias
6. General meeting of co-owners: abuse of majority
7. Condition for the validity of the notification of the minutes of a general meeting
8. General meetings: Obligation to put out to tender
- tier subcontractor to the project owner
1. Real right: time limit
3rd Civ. January 28, 2015 (No. 14-10.013) FS-PBRI:
" When the owner grants a real right, conferring the benefit of a special enjoyment of their property, this right, if it is not limited in time by the will of the parties, cannot be perpetual and is extinguished under the conditions provided for in Articles 619 and 625 of the Civil Code ."
In this case, the condominium association had established, for the benefit of the company EDF, which became ERDF, a right of use over a unit consisting of a public electricity distribution transformer.
2. Promise of sale: breach of contractual stipulations
3rd Civil Chamber. December 17, 2014 (No. 13-24.597) FS-D:
In this case, a clause in a preliminary sales agreement prohibited the seller from making any alterations to the premises, and in particular from dismantling fixtures.
The Court of Cassation upheld the Court of Appeal's decision to rescind the sale on the grounds that the removal of the wall cabinet and bathroom mirror, secured with wall plugs, had damaged the wall tiles, which had to be completely replaced, and that the decorative tiles laid as a frieze in the bathroom, set in plaster, had been torn off, constituting a serious breach of the preliminary sales agreement.
3. Breach of the obligation to deliver
3rd Civil Chamber. January 28, 2015 (No. 13-19.945) FS-PBR:
The purchasers of a house discovered that their wastewater drainage system was not connected to the public sewer system. They therefore sued the sellers to obtain compensation for their loss.
The Court of Appeal noted that the property had been sold as being connected to the public sewer system and found that the connection did not conform to the contractual stipulations. The Court of Cassation dismissed the appeal against the Court of Appeal's judgment, which held that the sellers had failed in their obligation to deliver the property in accordance with the contract.
4. Compensable loss for the seller in the event of an error concerning the property's surface area (
3rd Civil Chamber). January 28, 2015 (No. 13-27.397) FS-PBRI:
" While the reimbursement to which the seller is legally obligated following a price reduction resulting from a smaller measurement compared to the agreed-upon area does not, in itself, constitute compensable allowing for a warranty claim, the seller may claim against the surveyor who performed an erroneous measurement for a lost opportunity to sell their property at the same price for a smaller area ."
The seller can therefore take action against the surveyor and assert their damages based on the loss of opportunity.
5. Area of private parts: consideration of loggias
3rd , 2015 (No. 13-27.397) FS-PB:
The purchasers of a condominium unit consisting of an apartment had a measurement carried out which revealed an area smaller than that indicated by the seller. The buyers then sued the seller for a price reduction. In support of their claim, they invoked Article 4-2 of the decree of March 17, 1967, as amended by the decree of May 23, 1997, which stipulates that lots or portions of lots with a surface area of less than 8 square meters are not included in the calculation of the surface area to be stated in the deed of sale. They argued that the areas of the two loggias, one measuring 6.27 m² and the other 6.69 m², should be excluded from the calculation of the private living area.
The Court of Cassation upheld the Court of Appeal's judgment rejecting the buyers' claim on the grounds that, at the time of the sale, the two private loggias, included in the lot sold, were enclosed and habitable and should therefore be included in the calculation of the surface area of the private areas sold.
6. General Meeting of Co-owners: Abuse of Majority,
3rd Civil Chamber, December 17, 2014 (No. 13-27.397) FS-PB:
In this case, the Court of Appeal considered it abusive for a general meeting to refuse authorization from co-owners to change the use of a unit from commercial to residential. In support of its decision, the court held that the change of use of the unit was not contrary to the building's intended use, was not prohibited by the condominium regulations, and did not infringe upon the rights of the other co-owners.
The Court of Cassation held that the Court of Appeal had substituted its own assessment for that of the general meeting and quashed the judgment. In support of its decision, the Court cites the fact that the Court of Appeal failed to identify how the general meeting's decision was contrary to the collective interests of the co-owners or was taken solely to favor the personal interests of the majority co-owners to the detriment of the minority co-owners.
7. Conditions for the validity of notification of the minutes of a general meeting
3rd , 2015 (No. 13-23-552) FS-PB:
A company sued the condominium association and the property manager, seeking a declaration that the latter's appointment was irregular or even nonexistent and that the general meetings he had convened were null and void.
The Court of Appeal dismissed the company's claims. The ruling notes that the trustee notified the minutes of the general meeting by registered letter with acknowledgment of receipt dated June 6, 2006, and holds that the failure to reproduce, in the notification letter, the text of article 42, paragraph 2, of the law of July 10, 1965 is not such as to render this notification irregular.
The Court of Cassation reiterates Articles 42, paragraph 2 of the Law of 10 July 1965 and 18 of the Decree of 17 March 1967, which respectively stipulate:
– actions challenging decisions of general meetings must, under penalty of forfeiture, be brought by dissenting or absent co-owners within two months of notification of said decisions, which is carried out by the managing agent;
– the notification must reproduce the text of Article 42, paragraph 2, of the Law of 10 July 1965.
The Court then quashes the judgment of the Court of Appeal on the grounds that the failure to reproduce the text of Article 42, paragraph 2, of the Law of 10 July 1965 in the notification of the minutes of the general meeting renders this notification irregular.
8. General Meetings: Obligation of Competitive Bidding
3rd Civil Chamber. January 28, 2015 (No. 13-28.021) FS-PB:
Believing that a resolution violated the requirement to put external service providers out to tender, co-owners sued the condominium association and the property manager to have decisions of the general meeting annulled.
The Court of Cassation upheld the reasoning of the Court of Appeal, which held that the competitive tendering requirement applied only to decisions regarding the choice of contract binding the condominium association, a decision delegated, in this case, to the management committee. Consequently, the request to annul the decision concerning the principle of entering into a new agreement for elevator maintenance, defining the type of contract to be awarded, had limited scope and had to be dismissed.
9. No obligation for the unit holder to present the second-tier subcontractor to the project owner (
3rd Civil Chamber). January 21, 2015 (No. 13-18.316) FS-PB:
To order the main contractor to pay a certain sum to the second-tier subcontractor, the judgment held that by accepting and facilitating the company's presence as a second-tier subcontractor without having it approved by the project owner, the main contractor committed a fault with respect to the second-tier subcontractor.
According to the Court of Cassation, by making the main contractor bear the burden of the main contractor's obligation to present its subcontractor for approval by the project owner, when the company was a second-tier subcontractor and not a subcontractor of the main contractor, the Court of Appeal violated Article 2 of the Law of December 31, 1975, and Article 1382 of the Civil Code.
