“Sale by mistake of a landing (common part) with an apartment: how to regularize?”, Amandine LABRO Avocat

A real estate sale can reveal the irregular annexation of a common part to an apartment for many years. How to regularize? Response from Amandine Labro Lawyer at the Paris Bar.


Several solutions exist to regularize the annexation in particular the finding by the General Assembly of the co-owners or by a court of the acquisition of the common part by the play of the so-called “thirty-year acquisitive” prescription.

Situation

A seller has accepted a buyer’s offer for his apartment. However, the purchaser’s notary discovered that the entrance to the apartment was a common part and that it could not therefore be included in the so-called “Carrez law” area.

  • The buyer summons the seller to regularize the situation before acquiring his apartment.
  • Otherwise, he threatens to withdraw his offer or propose a new price.
  • The seller realizes that the said landing has been sold by mistake for years with his co-ownership lot.
  • When he acquired the apartment, said landing was also included in the sales area.
  • It was not indicated to him at the time that it was in fact the irregular annexation of a common part.

How to regularize?

Solution

1st step : Refer to the co-ownership regulations and to the description of the division to check whether the landing/corridor/entrance constitutes a common part.

2nd step: Ask the notary to obtain all the title deeds for the apartment as well as the original and modified plans of the building and check whether the said common part has been sold with the apartment for 30 years or more.

3rd step: If this is the case, it is advisable to approach a legal professional in order to study the advisability of acquiring the landing/corridor/entrance by means of so-called “acquisitive” prescription.

Indeed, under the terms of articles 2258 and following of the Civil Code, a co-owner can claim ownership of a common part of the building on which he has, under the legal conditions, exercised acts of possession giving him the benefit of the thirty-year prescription.

It is not required that the co-owner has owned himself during the said period. Indeed, with regard to article 2265 of the Civil Code, to complete the prescription, it ” may add to its possession that of its author, in any way that he has been succeeded, either universally or individually, either for profit or onerous “.

With regard to article 2272 of the Civil Code paragraph 2, it is also possible to invoke the abbreviated prescription on justification of its good faith and on production of a just title.

To prescribe, the co-owner must prove possession:

  • peaceful,
  • public,
  • keep on going,
  • unequivocal.

He must also justify having behaved like the owner and therefore provide proof of acts of possession.

For example, in a judgment of November 6, 2020[1]the Paris Court of Appeal considered that the possession of a landing by the successive owners of two lots joined together to form a single housing unit was “continuous, uninterrupted, peaceful, public and unequivocal” .

The acquisition of the tier by possession was recognized by the Court.

In other cases, it will be necessary to acquire said level (for a price) from the condominium to regularize the situation.

4th step: It can be established by a notary an act of acquisitive notoriety noting the play of the prescription. However, this formality is not compulsory. It also happens that some notaries do not draw up this type of deed.

In this act, the notary must include all the material facts stating that the prescription has been fulfilled and attach the witness statements, photographs, work invoices, etc.

5th step: Mandate a surveyor so that he constitutes a private lot, together with co-ownership fees and charges, and establishes a draft amendment to the descriptive state of division and the co-ownership regulations.

6th step: Ask the co-owners gathered at a general meeting to note the operation of the prescription for the benefit of the owner concerned and to approve the draft modification of the co-ownership regulations and the descriptive statement of division.

Attention, it is strongly advised to have the resolution drafted by a legal professional (lawyer, etc.).

Any refusal by the general meeting must be contested within two months of the notification of the minutes of the general meeting so that the court can establish the acquisition by acquisitive prescription.

7th step: A notary must proceed with the publication of the deed of acquisitive notoriety and the publication of the deed amending the descriptive state of division and the co-ownership regulations.

8th step: Study with a legal professional (lawyer) the advisability of engaging the responsibility of the notary and other parties involved in the initial sale in compensation for the costs incurred to regularize.

[1] Paris Court of Appeal, November 6, 2020, 16/080877

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