When the same infraction of the condominium by-laws is repeated each year during the seasonal operation of the commercial premises, a new prescription period does not start running with each new infraction.
Cass. 3e civ. 24-11-2021 n° 20-20.090 FS-D, Synd. copr. de la résidence Ederra
The syndicate of co-owners summoned the owners of commercial premises, operated during the tourist season, to stop occupying the common areas in front of their premises. The owners argued that the action of the syndicate was prescribed because it had not been brought within the 10-year period provided for by article 42 of the law of July 10, 1965.
The Court of Appeal declared the action of the syndicate admissible, holding that, when the occupation of the premises is temporary due to a seasonal operation which is repeated from year to year, the premises being returned at the end of the season to their initial aspect and destination, each new occupation constitutes the starting point of a new ten-year prescription.
The decision was quashed, in the light of article 42 of the law of July 10, 1965: the Court of Appeal could not rule in this way when it resulted from its findings that it was the same violation of the co-ownership regulations which had been repeated, without interruption, during each season, so that each new occupation did not constitute the starting point of a new ten-year prescription.
Indeed, actions between co-owners, or between a co-owner and the syndicate, were prescribed by 10 years. This period was reduced to 5 years by the Élan law of 23 November 2018.
The limitation period runs from the commission of the infringement or, more precisely, from the knowledge of the infringement by the holder of the action (Cass. 3e civ. 12-4-2018 n° 17-12.574 F-D: BPIM 3/18 inf. 218; Cass. 3e civ. 20-5-2021 n° 20-15.449 F-D). In case of repeated violations of the condominium regulations, the “Cour de cassation” holds that the limitation period runs from the first violation when the following violation(s) are identical and repeated in an uninterrupted manner. Thus, in case of irregular allocation of a lot to a commercial activity, in the context of successive uninterrupted rentals, the time limit runs from the date of the first rental (Cass. 3e civ. 9-6-1993 n° 90-18.043).
In this case, the occupation of the common areas in front of the stores was not continuous. Because of the seasonal operation of the businesses in question, the disputed occupation ceased at the end of the season, but it was repeated every year. The Court of Appeal deduced that each new annual occupation triggered a new ten-year limitation period. This analysis did not convince the Court of Cassation, which considered, on the contrary, that, since the same offence was repeated year after year without interruption, the limitation period did not start running again with each new occupation. It is, in fact, the same offence that continues, which, although not continuous, is nonetheless uninterrupted since it is repeated each season.