ELAN LAW AND SPECIAL COMMONLY OWNED AREAS: THE ESSENTIAL POINTS
Release date : 30/01/2020
The ELAN Law and special commonly owned areas: what to keep in mind
In a previous article, we explained what the special commonly owned areas consist of, and we presented the articles of the French ELAN law regarding them. Today, we are going to analyse what we need to remember about this essential piece of legislation impacting commonhold regulations.
A specific schedule of expenses
Article 6-2 defines special commonly owned areas. This definition considers that there can be no special co-owned areas without the inclusion of a special schedule of expenses for each of them in the commonhold regulations.
However, commonhold regulations often define special commonly owned areas without specifying the modalities for the distribution of special common expenses. Conversely, some commonhold regulations include a schedule of special expenses without listing the concerned special co-owned areas.
The ELAN Law further specifies that decisions relating to special commonly owned areas may be taken either in a special meeting or during the general meeting, but in the latter case, only the co-owners concerned by these special co-owned areas may vote.
Private enjoyment of commonly owned areas
In article 6-3, the ELAN law focuses on and defines private enjoyment of commonly owned areas. It recalls that the right of private use and enjoyment of a co-owned area cannot constitute a unit per se but remains ancillary to the commonhold unit to which it is attached.
Above all, however, the legislator makes the existence of a right of enjoyment of commonly owned areas subject to its explicit mention in the commonhold regulations. The right of private use and enjoyment of a co-owned area granted by an assembly will, therefore, be deprived of effect if this right has not been included in the commonhold regulations.
Thus, when a unit is sold, the notary will have to verify whether, for example, the right of enjoyment of a courtyard has been mentioned in the commonhold regulations. If this were not the case, the right of private use and enjoyment would become non-existent, and the sale could be cancelled, or the sale price of the said unit strongly reduced.
Upgrading your commonhold regulations to compliance: a legal obligation before November 24, 2021
Co-owners’ associations have a period of 3 years from the enactment of the ELAN law to upgrade their commonhold regulations to compliance. This upgrade is required not only regarding special commonly owned areas and the special schedule of expenses thereof but also regarding the confirmation of the rights of private use and enjoyment on a co-owned area. Once this period has elapsed, the first consequence is that no effect may be derived from the existence of special commonly owned areas without a special schedule of expenses, and vice versa. Secondly, the rights of private use and enjoyment granted over the co-owned areas will no longer exist.
Are you unsure if whether or not you need to upgrade your commonhold regulations to compliance?