This article is provided for general information only and does not constitute legal, tax or investment advice. Rules change and individual situations differ. Always confirm the current position with a qualified professional before acting.
The ground floor of a French building is often a shop, and the flat above the shop often has something the other flats do not: the shop’s flat roof, which that one flat alone has the use of. The notaire calls it a partie commune à jouissance privative. It belongs to everyone, you alone may use it, and the règlement de copropriété says you look after it. Fine. Then one wet February the shopkeeper finds water running through his ceiling, the expert traces it to the waterproofing of that roof, and the question arrives that nobody asked at the signing: who pays?
On 17 September 2026 the Cour de cassation answered it in a ruling published in the Bulletin, and the answer has two halves. The syndicat des copropriétaires, the body of all the owners, pays the victim, automatically, whatever the règlement says. Then the syndicat may turn round and claim the money back from the owner who had the use of the roof. If you have the exclusive use of a roof, a terrace, a balcony or a garden in a French block, or you live or trade under one, both halves concern you.
What a “partie commune à jouissance privative” actually is
French blocks divide into parties privatives, the flat itself, and parties communes, everything else. A flat roof that one flat can step out onto, a terrace, a balcony, a courtyard or a patch of garden that only one lot can reach sits awkwardly between the two, and since 2018 the law has a name for it. Under article 6-3 of the loi of 10 July 1965, a partie commune à jouissance privative is a common part assigned to the exclusive use of one lot. It belongs to all the co-owners, undivided. The right to use it is attached to the lot and travels with it when the lot is sold, and it can never become part of the private property itself.
The same article adds one line that matters for everything that follows: the règlement de copropriété, the building’s constitution, “précise, le cas échéant, les charges que le titulaire de ce droit de jouissance privative supporte”. In other words, the règlement may say who pays to keep that roof or terrace up, and many do. A common clause puts “l’entretien et les réparations” of such parts on the owner of the lot that enjoys them. If you are buying a flat with such a roof, terrace or garden, that clause is in the règlement your notaire sent you, and it is worth finding before the signing rather than after the leak. The service-public.fr page on the règlement explains what else the document must contain.
The case: a chocolate shop, the roof above it and a clause
The facts are ordinary, which is why the ruling will be used so often. In a building in Lyon, a tenant ran a chocolate shop, trading under a national brand, on the ground floor. Above the shop lay its roof, a toiture-terrasse, which is the French term for a flat roof. The règlement classed that roof as a common part reserved to the exclusive use of lot 3 on the first floor. Structurally it was the shop’s roof. Legally it was a common part that only lot 3 had the use of. Article 17 of the règlement said that “l’entretien et les réparations des parties communes à usage exclusif d’un ou plusieurs lots sont à la charge des propriétaires de ceux-ci”.
Water came through the roof into the shop. In 2015 the general meeting voted a complete replacement of the waterproofing membrane, the complexe d’étanchéité, and the works were done in 2017. The tenant then sued the syndicat and its insurer for the losses the leaks had caused him. On 3 September 2024 the cour d’appel de Lyon threw the claim out. The leak came from a defective membrane, the court said, but the règlement put the upkeep and repair of that roof on the owner of lot 3, so the syndicat could not be liable for a failure to maintain it.
The Cour de cassation quashed that decision on 17 September 2026, and did so on a ground the court raised itself, which is a sign the judges wanted the point settled. The case goes back to the cour d’appel de Grenoble, which must decide the claim against the syndicat and its insurer afresh, and the syndicat and its insurer were ordered to pay the tenant €3,000 towards his costs on the way.
What the court held (Civ. 3e, 17 September 2026, n° 24-20.973)
« Si une clause du règlement de copropriété peut mettre à la charge du copropriétaire bénéficiaire de la jouissance exclusive d’une partie commune une obligation d’entretien de celle-ci, elle ne peut avoir pour effet d’exonérer le syndicat des copropriétaires de cette responsabilité de plein droit, sans préjudice de ses actions récursoires. »
Our translation: although a clause of the règlement de copropriété may place on the co-owner who has exclusive use of a common part a duty to maintain it, that clause cannot have the effect of relieving the syndicat of its strict liability, without prejudice to the syndicat’s rights of recourse.
Why the clause cannot shield the syndicat
The reasoning rests on one article and one phrase. The article is article 14 of the loi of 1965. In the version that applied to this dispute, as the court reads it, the syndicat was “responsable de plein droit des dommages causés aux copropriétaires ou aux tiers par le vice de construction ou le défaut d’entretien des parties communes, sans préjudice de toutes actions récursoires”. The phrase is “de plein droit”, which means strict. The victim does not have to prove that the syndicat did anything wrong. It is enough that the damage came from a common part.
Article 43 of the same law then declares any clause contrary to articles 6 to 37 “réputée non écrite”, deemed unwritten, which makes article 14 a rule of ordre public. A règlement is a contract between the owners, and the owners cannot contract out of a public-order rule to the detriment of the person the rule protects. So the clause does two different things at once. Between the owners, it is valid: the owner with exclusive use really does owe the upkeep. Towards the victim, it is invisible: the syndicat remains the defendant the law has chosen.
That split is the whole lesson. The court separates the question of who compensates the victim from the question of who ends up carrying the cost. The first is answered by the law, and the answer is the syndicat. The second is answered by the règlement, through the action récursoire that article 14 expressly reserves. The syndicat pays the shop, then claims against the owner of lot 3 for failing to keep the roof in repair, and the clause does its work at that second stage.
Put figures on it, purely as an illustration. Say the water ruins €12,000 of stock and fittings in the shop. The shopkeeper claims €12,000 from the syndicat, which pays through its liability insurer without anyone having to prove a fault. The syndicat, or its insurer standing in its shoes, then claims the €12,000 from the owner of lot 3, relying on the clause and on evidence that the roof was not kept in repair. That owner’s own civil-liability cover answers if the policy responds. If the owner can show that the leak came from a membrane that had simply reached the end of its life rather than from neglect, the recourse may fail in whole or in part, and the cost stays with the building. The victim is paid at step one either way.
The ruling fits a decision the same chamber gave on 26 January 2022, also about water from terraces held in exclusive use, this time in Corsica. There the owner below had sued the owner above, whose alterations to his terraces had caused the leaks, and the cour d’appel had told her she should have sued the syndicat instead. The Cour de cassation disagreed: the syndicat’s liability under article 14 does not exclude the personal liability of a co-owner whose fault caused the damage. Put the two rulings together and the victim has two possible defendants, the syndicat always, and the owner with exclusive use where his own fault is shown, while the règlement decides which of them bears the final bill.
One more point for anyone reading the current law rather than the 2015 version. The ordinance of 30 October 2019 rewrote article 14, which now makes the syndicat liable for damage “ayant leur origine dans les parties communes”, originating in the common parts, and no longer mentions construction defects or lack of maintenance at all. If anything that makes the rule more objective, not less: once the water came from a common part, how the owners had shared out its upkeep cannot change who answers for it.
| Question | Answer | Where it comes from |
|---|---|---|
| Who owns a roof or terrace held en jouissance privative? | All the co-owners, undivided | Loi 1965, art. 6-3 |
| Who may use it? | The lot it is attached to, exclusively, and the right passes with the lot | Loi 1965, art. 6-3 |
| Who maintains it? | Whoever the règlement says, usually the owner of that lot | Loi 1965, art. 6-3, and the clause |
| Who compensates the victim of a leak from it? | The syndicat, strictly, whatever the règlement says | Loi 1965, arts. 14 and 43, and Civ. 3e, 17 Sept 2026 |
| Can the victim sue the owner who has exclusive use instead? | Yes, where the owner’s own fault caused the damage | Civ. 3e, 26 Jan 2022 |
| Who ends up with the bill? | Whoever the règlement puts it on, through the syndicat’s action récursoire | Loi 1965, art. 14 |
| Which insurance answers? | The syndicat’s compulsory liability cover first, then, in principle and subject to the policy, the owner’s own compulsory cover on the recourse | Loi 1965, art. 9-1 |
Chair one: you have the exclusive use of the roof or terrace
The ruling does not make your position worse, but it makes it clearer, and clarity is uncomfortable. The clause in your règlement is valid. The syndicat will pay whoever is below you, and its insurer will then look for someone to recover from, and the clause points at you. Three things follow.
First, read the clause for its exact words. In practice, “entretien” means day-to-day upkeep: keeping drains and outlets clear, resealing joints, not laying decking or planters that pierce or trap water on the membrane. “Entretien et réparations”, the wording in the Lyon case, goes further. Whether a clause reaches as far as the complete replacement of a waterproofing membrane that has reached the end of its life depends on how the clause is drafted and how the works are classed. The Cour de cassation did not have to decide that here. If the roof under your terrace is twenty years old and the clause is broad, that is a conversation to have with a lawyer before you buy, not after the general meeting votes the works.
There is a concrete way to find out how old that roof is. Every syndic must keep a carnet d’entretien, the building’s maintenance log, and it must record the year of major works such as a réfection de toiture and the firms that did them, together with the building’s insurance references and any dommages-ouvrage cover still running. A copy has to be annexed to the promesse de vente, and co-owners can consult it online. Before you sign, ask the syndic for the carnet and for the date of the last étanchéité works on the roof or terrace you will be using. If the answer is a shrug, you have learnt something too.
Second, check your insurance. Article 9-1 of the loi of 1965 obliges every co-owner, occupying or not, to insure the civil liability that comes with being a co-owner, and the syndicat to insure its own. The policy that answers the syndicat’s recourse against you is your own contrat multirisque habitation if you live there, or your assurance propriétaire non occupant if you let the flat, and the relevant cover is the responsabilité civile and “recours des voisins et des tiers” sections. A non-resident owner who insured the flat from abroad with the cheapest policy on offer should read those sections now. Service-public.fr sets out which cover is compulsory for whom.
Third, keep proof. The syndicat’s recourse against you will turn on whether you did what the clause required. Keep the invoices for the annual clean of the outlets, the roofer’s report, photographs of the roof or terrace before and after any work you had done, and the email in which you reported a damp patch to the syndic. These are what stand between a leak that is your problem and a leak that is a worn-out membrane the building should have replaced.
Chair two: you are under the leak
If water is coming through your ceiling from a roof, a terrace, a balcony or a courtyard that someone above has the exclusive use of, the ruling hands you a simple script. You claim against the syndicat under article 14, you do not have to prove that anyone was at fault, and the syndic’s favourite answer, “see the owner upstairs, the règlement makes it his problem”, is no longer an answer at all. The syndicat pays and sorts out the recourse afterwards. If the owner above has clearly caused the damage himself, by building on the terrace or ignoring a known defect, the 2022 ruling lets you sue him too, and nothing stops you suing both.
In practice the first call is to the insurers, and the mechanics depend on the size of the loss. When the damage originates in a common part, it is the syndic who must declare the claim to the building’s insurer. For water damage and fire in residential buildings where the material damage does not exceed €5,000 excluding VAT, the insurers’ IRSI convention appoints a single managing insurer to run the expert’s inspection, the leak search and the payout, whichever policies are involved. Above €5,000 each insurer acts under its own contract, which is slower and where expert reports start to contradict each other. Our guide to the general meeting explains how to get the works voted if the leak is still live, and our piece on unpaid charges shows what the syndicat can do when the bill then lands on an owner who will not pay it.
Do not sit on it. Under article 42 of the loi of 1965, personal actions between co-owners, or between a co-owner and the syndicat, follow the ordinary five-year limitation period of article 2224 of the civil code, which runs from the day you knew, or should have known, the facts that found your claim. A tenant’s claim against the syndicat falls under the same five-year rule. In the Lyon case the works were voted in 2015 and the Cour de cassation ruled in 2026, which tells you how long the road can be once it has started. Written notice to the syndic on day one, with photographs, is where it should begin.
If you let the flat: your tenant has two targets, and one of them is you
The claimant in the Lyon case was not an owner at all. He was a tenant, and the law treats a tenant as a “tiers”, a third party, for the purposes of article 14, so he could sue the syndicat directly, which is exactly what he did. Your tenant can do the same if the flat or shop you let is the one under the roof.
Your tenant can also look to you. Under article 1719 of the civil code, every landlord must deliver the premises, keep them in a state fit for the use agreed, and ensure the tenant’s quiet enjoyment for the whole lease. None of that depends on whether the defect sits in your flat or in the building. A tenant with a ruined stock room or an uninhabitable bedroom may therefore claim a rent reduction or damages from you, and you then turn to the syndicat for what you have paid. Hold the tenant to his side of the bargain as well: he must insure, and a 2026 ruling on the insurance attestation shows what happens when he does not. If the premises are commercial, the bail commercial rules apply, but the landlord’s duty of delivery and quiet enjoyment is the same article 1719.
The decision rule
Buying a flat with a roof, terrace, balcony or garden en jouissance privative: find the upkeep clause in the règlement, ask a lawyer whether it reaches the waterproofing itself, and make sure your insurance carries civil liability and recours des voisins cover. Owning one already: keep every invoice and report on it. Living or letting under one: claim against the syndicat under article 14 the day the water appears, in writing, and let the syndicat argue with the owner upstairs afterwards.
Our view: the right answer, for a reason that applies well beyond terraces
We think the court got this right, and the reason is worth stating plainly. A règlement de copropriété is a private contract among the owners of one building. The shopkeeper who rents the ground floor never signed it. Article 14 exists so that a person damaged by a building does not have to decode that building’s internal arrangements before they can be paid. Because it is a rule of ordre public, it protects a co-owner, who is bound by the règlement, just as much as a tenant, who is not. Allowing the owners to move the liability about among themselves, and then to tell the victim that the one they chose has no insurance and no money, would have emptied the article of its purpose. Keeping the clause alive for the recourse, where it belongs, loses the owners nothing they were entitled to.
The practical message for foreign buyers is less comfortable, because the private outdoor space, the roof terrace or the garden, is so often the reason for the purchase. The right of exclusive use is real and the règlement can make you pay to keep it, and now you know that the syndicat’s insurer will be reading that clause too. We would rather you read it first.
FAQ: roofs, terraces and leaks in a French copropriété
My règlement says I must maintain the roof or terrace I have exclusive use of. Am I liable if it leaks on whoever is below?
Not directly. The person below claims against the syndicat, which is strictly liable for damage originating in common parts. The syndicat may then claim the money back from you under the clause, so in practice the bill can reach you through that recourse.
Can the syndic refuse my claim because the règlement puts the roof on the owner upstairs?
No. The Cour de cassation held on 17 September 2026 that such a clause cannot relieve the syndicat of its liability under article 14 of the loi of 1965, which is a rule of ordre public.
Can I sue the owner who has exclusive use of the roof or terrace instead of the syndicat?
Yes, where his own fault caused the damage, for example works he carried out on it. The Cour de cassation confirmed on 26 January 2022 that the syndicat’s liability does not exclude the co-owner’s personal liability. Nothing stops you suing both.
Is insurance compulsory for a non-resident owner in a copropriété?
Yes. Article 9-1 of the loi of 1965 requires every co-owner, occupying or not, to insure their civil liability as a co-owner, and the syndicat to insure its own. The policy should include responsabilité civile and recours des voisins et des tiers cover.
Does the ruling still apply now that article 14 has been rewritten?
Yes. Since the 2019 ordinance the syndicat is liable for damage “originating in the common parts”, which is broader than the old wording. A leak from a roof or terrace held en jouissance privative originates in a common part, so the same answer follows.
