The covenant (cahier des charges) of a housing subdivision provides that a green space, crossed by a footpath leading to the Dordogne river, will be transferred to the municipality together with the collective works. Years later the municipality removes that space from its public domain, sells it to a property company, and a paramedical practice is built on it. Two plot owners seek annulment of the sale and demolition: the covenant said “green space”. The Bordeaux Court of Appeal dismisses them, and on 3 September 2026 the Cour de cassation (the French supreme court for civil matters) confirmed, in a reported decision: a municipality to which all the roads and common areas have been transferred is not a plot owner, the covenant’s stipulations are not binding on it, and the sale of an asset of its private domain cannot be challenged by the plot owners. For anyone buying or valuing a plot, the lesson concerns how solid the amenity one thinks acquired really is.
The facts
Two brothers own a plot in a subdivision. The municipality, to which the common areas were transferred under the covenant, sells to a property company a parcel that the covenant defined, in its article 6, as a “green space crossed across its width by a pedestrian access to the Dordogne”, and the company builds a paramedical practice on it. The plot owners sue the municipality and the company for annulment of the sale and demolition; the municipality joins the notary.
By resolutions of 1 March 2013 and 19 March 2015 the municipality had voted to declassify the green space from its public domain on the ground of its established disuse; those resolutions were never challenged. The Bordeaux Court of Appeal, on 30 April 2024, rejects the claims: the municipality is not a plot owner, the covenant is not binding on it, and the sale of an asset of its private domain cannot be contested by the plot owners.
The decision
The third civil chamber dismissed the appeal (Cass. 3e civ., 3 September 2026, no. 24-16.968, reported). It sets the frame: “The covenant of a subdivision is intended to define the rights and obligations governing relations between plot owners and the rules for managing the subdivision’s common areas.” Where the developer has concluded with the municipality an agreement transferring all roads and common areas, it need not set up an owners’ association; land incorporated into the public domain “falls exclusively under the regime of public property”, which allows its disuse and transfer into the private domain, “under the supervision of the administrative court”.
Hence the rule: “the municipality, to which all the roads and common areas have been transferred, is not a plot owner, so that the stipulations of the covenant are not binding on it, and the provisions of article L. 442-10 of the Planning Code on the modification of subdivision documents do not apply to this situation”. The declassification having gone unchallenged, “the company had not acquired a plot or a common area of the subdivision and this sale of an asset belonging to the municipality’s private domain could not be challenged by plot owners”. The Court of Appeal’s reasons on a real burden and on the lapse of the covenant are described as wrong but superfluous.
What this changes for valuation
The amenity a plot draws from a common area depends on who owns it. A plot facing a green space sells for more than one wedged between two houses: open view, quiet, access to the river. As long as the space belongs to the plot owners, gathered in an owners’ association, its use is contractual and changes only with the unanimity required by article L. 442-10 of the Planning Code. Once transferred to the municipality, it belongs to the public domain; the municipality can withdraw it from use, declassify it and sell it, and the plot owners are left only with a challenge to the resolutions, before the administrative court and within two months. The amenity is no longer guaranteed by the covenant; it rests on the will of the local authority alone.
What the valuer checks before attributing a premium. An opinion of value for a plot in a subdivision reads the covenant and the regulations, then identifies the owner of the common areas: owners’ association or municipality. In the first case the premium tied to the green space is stable; in the second it is conditional, and the report says so. The valuer also checks whether a resolution of disuse or declassification has already been passed and whether a project is known, which can be read in the register of resolutions and in the local plan.
The land sold by the municipality. A declassified former green space sells as building land in its area, at the price of comparables, which is very different from the value it had as a non-buildable appurtenance of the subdivision. A valuer instructed by the municipality or the buyer establishes that market value, taking into account access, the shape of the parcel, the footpath if it remains and the rules of the local plan, and not the covenant, which no longer applies.
The loss of value of neighbouring plots. Plot owners who lose their view or their quiet obtain neither annulment nor demolition. They may still have an action for abnormal neighbourhood disturbance against the builder, whose outcome depends on the abnormality of the disturbance, loss of view not being compensated as a matter of principle, as the article on loss of view recalls. Again a figure is needed: the value of the plot before and after the construction, with comparables, and an explanation of the gap.
Buying with open eyes. A buyer who pays for a view over a green space owned by the municipality pays for a revocable amenity. A preliminary opinion of value flags it, and the negotiated price takes it into account; that is the service valuation renders before signing, rather than after the neighbour has built.
What the valuer takes from it
- A municipality to which a subdivision’s common areas have been transferred is not a plot owner; the covenant is not binding on it.
- A municipal green space can be withdrawn from use, declassified and sold; only a challenge to the resolutions, before the administrative court, can prevent it.
- The premium of a plot tied to a common area is stable if the area belongs to the plot owners, conditional if it belongs to the municipality; the report says which.
- Declassified land is valued as building land, according to the local plan and comparables.
- The loss of amenity of neighbouring plots is quantified by a before-and-after value, but is not compensated as a matter of principle.
Further reading
The Market value page describes the assignment, its timescale and its fee. The guide Neighbour building a block of flats: my house loses value and the glossary entries trouble anormal de voisinage and moins-value complement this article. On the same theme: Encroachment: demolition is required, the strip of land has a price and Public domain land sold: void sale, property tax compensated. The decision is available on Légifrance.
What next
A plot whose view or amenity depends on a common area, and a value to defend?
I measure what the green space adds to the value of a plot, what it loses if the space is built on, and what the land sold is worth, with market references and an analysis of the subdivision documents.
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