It is perfectly possible to divide a co-ownership lot into two or more separate lots. This is particularly the case when a co-owner wishes to convert his flat into two smaller flats.
Certain rules must be observed before each division of a lot:
- When dividing a lot in order to create residential units, it is often advisable, as a precaution, to comply with the regulations set out in article L111-6-1, paragraph 2 of the Code de la construction et de l'habitation (Building and Housing Code) concerning the division of a building in order to create residential premises. These new lots must be larger than 14 m² and 33 m3 and meet the decency criteria set out in decree no. 2002-120 of 30 January 2002 (drinking water supply, sewage system, etc.). Asbestos and lead diagnostics must also be carried out prior to the division.
- The division of a lot must not affect the intended use of the building. This must be assessed on a case-by-case basis, depending on the configuration and standing of the building. Similarly, the division must not affect the rights of the other co-owners. If there is any doubt or hostility on the part of a co-owner, it is advisable to have the general meeting, by a majority vote under article 24, declare that the proposed division of a lot does not affect the purpose of the building or the rights of the other co-owners, and to "authorise it as necessary".
- The division must comply with the clauses of the co-ownership regulations:
* a clause requiring prior authorisation from the general meeting: the co-ownership regulations may require authorisation from the general meeting of co-owners for any division of a lot. In the event of refusal, it will always be possible to appeal to a court to check that the refusal is well-founded.
* clause prohibiting divisions: this clause is valid provided it is justified by the purpose of the building. This concept is always difficult to grasp in practice. If such a clause exists, the general meeting should be asked to declare the prohibition clause "unwritten" prior to the division.
When the division of a lot is carried out in violation of the clauses of the by-laws and affects the purpose of the building or the rights of certain co-owners, the nullity of the division may be requested either by the syndicate or by a co-owner. The lot must then be restored to its previous state, as it was before it was divided.
Once it has been checked that the proposed division of the lot is possible, a number of formalities must be complied with:
- When the division is accompanied by the separate disposal of one or more parts of the divided lot, the general meeting must approve the new breakdown of co-ownership charges resulting from the division, bya majority vote in accordance with article 24. However, some co-ownership by-laws may set out in advance the terms and conditions for apportioning charges in the event of the division of a lot; in this case, approval by the general meeting is no longer required.
- It is not uncommon for work to be carried out in order to split up a lot. Insofar as such work affects the common areas or the external appearance of the building, prior authorisation must be obtained from the general meeting by virtue of article 25, b) of the law of 10 July 1965, by the majority stipulated in that text.
- Lastly, the division must be carried out by a notary, who will draw up an amendment to the descriptive statement of division that will change the lot numbers. This notarised deed must then be published at the relevant mortgage registry.