It is a fact. We don’t always choose our neighbors… but we get used to it. In a co-ownership, in an urban environment, residential buildings are supposed to be occupied by “year-round” residents. Short-term tourist rentals may be unpopular, for various reasons: daytime and nighttime noise, damage to common areas, non-compliant use of community facilities, theft, etc. Airbnb type rental can then be illegal, under town planning law. In this case, a report to the competent services of the local authority concerned appears judicious.
Furthermore, in a co-owned building, under article 9 of the law of July 10, 1965, each co-owner freely uses and enjoys the private portions. Subject, however, to not infringe the rights of the other co-owners, nor the destination of the building. A co-owner can therefore claim provisions contained in the co-ownership regulations relating to the destination of the building to oppose them to a co-owner.
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Use the co-ownership regulations
The co-ownership regulations can thus prohibit short-term rentals. And this especially concerns recently constructed buildings. These anti-short-term rental clauses are lawful, unless they are canceled by the court if they are not justified by the destination of the building. It is also possible that the co-ownership regulations prohibit any commercial activity. Gold, the most frequently authorized case law considers short-term rental to be a commercial activity. In this case, any Airbnb type rental therefore becomes illegal.
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However, we very often encounter, in co-ownership regulations, more flexible so-called bourgeois housing clauses, not expressly excluding commercial activity. Thus, in a judgment of March 8, 2018 (n°14-15.864), the Court of Cassation was able to hold that tourist rentals disregarded the provisions of a co-ownership regulation, if this regulation provides for mixed use of the building (professional – residential), without excluding or authorizing commercial activity. Finally, in the absence of a specific provision contained in the co-ownership regulations, the judge can decide, case by casethat this type of rental is contrary to the bourgeois destination of a building.
Claim an “abnormal neighborhood disturbance”
Furthermore, beyond the provisions of the co-ownership regulations, the co-owner who intends to oppose Airbnb type rentals, can invoke an abnormal neighborhood disturbance. This is a legal basis distinct from that resulting from the application of the co-ownership regulations, which may also be juxtaposed with the latter.
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Modify the co-ownership regulations to prohibit rentals
It is tempting for co-owners to obtain a modification of the co-ownership regulations moving in the direction of a ban on short-term rentals. However, to be validly adopted by a general meeting, such a modification must receive the unanimity of the co-owners. Otherwise, any general meeting resolution prohibiting short-term rentals may be subject to annulment by the judge under the conditions and deadlines provided for by article 42 of the law of July 10, 1965.
Concretely, a co-owner who intends to “lead the fight” will contact his trustee so that the latter can send a formal notice to the offending co-owner. If the formal notice remains ineffective, the trustee may place on the agenda of the next general meeting a resolution authorizing him to take legal action on behalf of the union of co-owners.
The co-owner who intends to oppose Airbnb type rentals can request an entry on the agenda of the next general meeting of a resolution aimed at taking legal action against the offending co-owner.
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Take the case to the Judicial Court
The co-owner who is a “victim” of short-term rentals can also act directly against his neighbor, without going through the “channel” of the co-owners’ union. In all cases it is the Judicial Court of the location of the building which will have jurisdiction to rule on the dispute.
In certain cases, if the offense is obvious, particularly with regard to the stipulations of the co-ownership regulations, a quicker summary action may be considered (with caution, etc.). The judge, if he is sentencing, will combine it witha monetary penaltywhich has a coercive nature.
In all cases it will be important to gather supporting documents establishing the existence of short-term rentals (testimonies, bailiff’s report, etc.) and to be patient, due to the congestion in the courts!
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