1. Right in rem: time limit
2. Promise to sell: breach of contractual stipulations
3. Breach of the obligation to deliver
4. Compensable damage to the seller in the event of an error relating to the surface area of the building
5. Surface area of the private portions: taking account of loggias
6. General meeting of co-owners: abuse of majority
7. Condition of validity of the notification of the minutes of a general meeting
8. General meetings: Obligation to call for competition
9. Construction: no obligation for the holder of the lot to present the second-tier subcontractor to the contracting authority
1. Right in rem: time limitation
3 rd Civ.
January 28, 2015 (No. 14-10.013) FS-PBRI: " When the owner grants a real right, conferring the benefit of special enjoyment of his 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 by articles 619 and 625 of the civil code .
In this case, the syndicate of co-owners had set up, for the benefit of the company EDF, now ERDF, a right of use over a lot consisting of a public electricity distribution transformer.
3 rd Civ
contractual stipulations December 17, 2014 (n°13-24.597) FS-D: In this case, a clause contained in an agreement to sell prohibited the seller from making any changes to the premises and in particular the dismantling of elements qualifying as buildings by destination.
The Court of Cassation confirms the judgment of the Court of Appeal which rules on the resolution of the sale on the grounds that the removal of the wall unit and the bathroom mirror, fixed by pegs penetrating the wall, had caused deterioration wall tiles that had to be replaced in their entirety and that the decorative tiles placed in a frieze in the bathroom, sealed with plaster, had been torn off, which characterized a serious breach of the stipulation of the promise to sell.
3. Failure to deliver
3 rd Civ.
January 28, 2015 (n°13-19.945) FS-PBR: Buyers of a house noticed that the evacuation of their waste water was not connected to the public sewage network.
They therefore sued the sellers to obtain compensation for their damage. The Court of Appeal noted that the building had been sold as being connected to the public sewerage network and found that the connection did not comply with the contractual stipulations.
The Court of Cassation dismissed the appeal against the judgment of the Court of Appeal which considered that the sellers failed in their obligation to deliver. 4. Compensable damage to the seller in the event of an error relating to the surface area of the building
3 rd Civ.
January 28, 2015 (n°13-27.397) FS-PBRI: " If the restitution, to which the seller is bound by law following the reduction in price resulting from a lesser measure compared to the agreed area , does not constitute, by itself, a compensable allowing an action in guarantee, the seller can prevail against the measurer having carried out an erroneous measurement, of a loss of chance to sell his good at the same price for less area .
The seller can therefore turn against the measurer and assert his prejudice consisting of the loss of a chance.
5. Area of private areas: taking into account
3 rd Civ loggias.
January 28, 2015 (n°13-27.397) FS-PB: The purchasers of a co-ownership lot 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 reduction in the price. In support of their request, they invoked article 4-2 of the decree of March 17, 1967, in its wording resulting from the decree of May 23, 1997, under the terms of which lots or fractions of lots with an area of less than 8 square meters are not taken into account for the calculation of the area to be included in the deed of sale to assert that the areas of the two loggias, one of 6.27 m², the other of 6.69 m², should be excluded from the calculation of the habitable private area. The Court of Cassation confirms the judgment of the Court of Appeal rejecting the purchasers' request on the grounds that on the date of the sale the two private loggias, included in the lot sold, were closed and habitable and therefore had to be taken into account for the calculation of the area of the private portions sold.
6. General meeting of co-owners: abuse of majority
3 rd Civ.
December 17, 2014 (n°13-27.397) FS-PB: In this case, the Court of Appeal considered as abusive the refusal of a general meeting to authorize co-owners to change the destination of a lot for use professional in lot for residential use.
In support of its decision, the court held that the modification of the destination of the lot was not contrary to the destination of the building, was not prohibited by the co-ownership regulations and did not infringe the rights other co-owners. The Court of Cassation considers that the Court of Appeal substituted its assessment for that of the general meeting and overturns the judgment.
In support of its decision, the Court relies on the fact that the Court of Appeal did not note how the decision of the general meeting was contrary to the collective interests of the co-owners or had been taken for the sole purpose of favoring the personal interests of the majority co-owners to the detriment of the minority co-owners. 7. Condition of validity of the notification of the minutes of a general assembly
3 rd Civ.
January 28, 2015 (No. 13-23-552) FS-PB: A company sued the syndicate of co-owners and the trustee to declare irregular or even non-existent the designation of the latter and null and void the general meetings that he called .
The Court of Appeal dismissed the company's claims.
The judgment notes that the trustee notified the minutes of the general meeting by registered mail with acknowledgment of receipt dated June 6, 2006 and holds that the failure to reproduce, in the notification letter, the text of the Article 42, paragraph 2, of the law of July 10, 1965 is not such as to render this notification irregular. The Court of Cassation recalls articles 42, paragraph 2 of the law of July 10, 1965 and 18 of the decree of March 17, 1967 under the terms of which respectively:
– actions whose purpose is to challenge the decisions of general meetings must, under penalty of forfeiture, be introduced by the opposing or defaulting co-owners, within a period of two months from the notification of the said decisions which is made to them at the behest of the trustee
– the notification must reproduce the text of article 42, paragraph 2, of the law of July 10, 1965.
The Court then overturned the judgment of the Court of Appeal on the grounds that the absence of reproduction in the notification of the minutes of the general meeting of the text of article 42, paragraph 2 , of the law of July 10, 1965 makes this notification irregular.
8. General Meetings: Obligation to call for competition
3 rd Civ.
January 28, 2015 (n°13-28.021) FS-PB: Believing that a resolution contravened the requirement of competition between external service providers, co-owners sued the syndicate of co-owners and the syndic, for annulment of decisions of the general meeting.
The Court of Cassation takes up the reasoning of the Court of Appeal which considered that the requirement of competition was only required for the decision-making on the choice of the contract binding the syndicate of co-owners, decision delegated, in l species, to the union council.
Consequently, the request for nullity of the decision relating to the principle of the subscription of a new agreement relating to the maintenance of the lifts defining the type of contract to be concluded had a limited scope and had to be rejected. 9. No obligation for the holder of the lot to present the second-tier subcontractor to the contracting authority
3 rd Civ.
January 21, 2015 (n° 13-18.316) FS-PB: To condemn the holder of the lot to pay a certain sum to the second-tier subcontractor, the judgment holds that by accepting and favoring the presence of the company, as a second-tier subcontractor without having it approved by the contracting authority, the holder of the lot has committed a fault with regard to the second-tier subcontractor.
According to the Court of Cassation, by making the holder of the lot bear the obligation on the main contractor to present his subcontractor for the approval of the contracting authority when the company was a second subcontractor rank and not a subcontractor of the holder of the lot, the Court of Appeal violated article 2 of the law of December 31, 1975 and article 1382 of the civil code.
