Exclusive use of a common part: who must compensate in case of damage?

The tenant of a commercial space is subject to water infiltration from a roof terrace located above his business. This terrace is a common part of the building, but only a co-owner can use it. The condominium by-law provides that its maintenance and repairs are the responsibility of the latter.

In 2015, the General Assembly voted to completely restore the waterproofing of the terrace. The works are only realized in 2017. The merchant had to close his shop for 6 months. He then took legal action to obtain compensation from the syndicate of co-owners and its insurer, in particular for the loss of operations and for the rehabilitation of his premises.

Who must compensate the merchant?

Public Service replies:

The Lyon Court of Appeal rejected the merchant's request on September 3, 2024. It found that the infiltrations were due to a leak in the roof terrace. In its view, since the condominium by-law places the maintenance and repairs of the roof-terrace at the expense of the co-owner who has exclusive use of it, the syndicate of co-owners cannot be held liable.

The trader appeals to the Court of Cassation.

In its judgment of 17 September 2026, the Court of Cassation quashes the decision of the Court of Appeal. She recalls that the law of 10 july 1965 on co-ownership makes the syndicate of co-owners automatically liable for damages caused to co-owners or other persons by a lack of maintenance or a construction defect of the common parts. This responsibility is said to be « ipso jure »: the victim does not have to prove a fault of the co-ownership. As this rule is public policy, no co-ownership regulation can exclude it.

Thus, for the Court of Cassation, if the regulation can validly entrust the maintenance of a common part to the co-owner who has the exclusive use, this clause does not allow the condominium to escape its responsibility towards the victim. The victim can therefore claim compensation from the syndicate of co-owners. The latter can then turn against the co-owner who had to maintain the terrace to be reimbursed.

The Court of Cassation therefore agrees with the merchant.