Collective heating charges are allocated according to the objective usefulness of the service to each unit, pursuant to Article 10, paragraph 1, of the Law of 10 July 1965, and the law in principle requires individualization of costs by means of metering devices, under the supervision of Articles L. 241-9 and R. 241-1 et seq. of the Energy Code. An allocation carried out outside these rules, or an erroneous individual statement, can be challenged, even where this allocation has appeared in the co-ownership bylaws for years.

How your heating charges should be calculated

Collective heating falls within the charges for collective services and common equipment items. Their allocation does not follow the general ownership shares but a usefulness criterion: habitable surface area and heated volume, number and output of emitters, and the unit’s location within the building. A unit that is not connected, premises without an emitter, or a commercial unit with its own system must not bear the variable share.

Where the building is equipped with metering devices, thermal energy meters or heat cost allocators fitted to the emitters, fuel or energy costs are split. One part is allocated according to individual readings, reflecting your actual consumption. Another part remains common and is allocated according to the usefulness criteria set out in the bylaws, to account for network losses, heating of common areas and thermal solidarity between dwellings. Subscription costs, boiler room maintenance, the operating contract and meter reading remain charges allocated according to usefulness, unrelated to your individual readings.

Exceptions exist to the individualization requirement: technical impossibility of installing the devices, or where the cost of the works and operation is excessive in relation to the expected savings. The exception must be justified by a technical report submitted to the managing agent, not merely asserted at a general meeting.

Checks to carry out before challenging

• Re-read the heating allocation clause in the co-ownership bylaws and the descriptive statement of division: what criterion does it actually rest on?
• Ask the managing agent, on the basis of Article 18-1, for the supporting documents: energy invoices, the operating contract, readings for all units, and the allocation table for the financial year.
• Compare the readings for your unit from one financial year to the next and check them against your actual occupation of the dwelling.
• Check the installation date, calibration and replacement of the heat cost allocators: a faulty or improperly sized device produces unusable readings.
• Verify that unconnected units, commercial premises and technical rooms are excluded from the variable share.
• Check that expenses are attributed to the correct financial year, particularly fuel deliveries at the end of the season.

These checks often reveal two distinct anomalies, which do not open the same remedies: a material error in the statement, and an irregularity in the allocation formula itself.

Your remedies

In the face of a statement error, a written complaint to the managing agent, followed by a request to have an item placed on the agenda of the next general meeting, is frequently sufficient to obtain a correction. Keep the readings and correspondence. Failing rectification, the personal action for recovery of sums unduly paid is time-barred after five years.

In the face of an allocation formula contrary to the mandatory rules of Article 10, the clause is deemed unwritten pursuant to Article 43 of the Law. This action is not subject to the two-month time limit applicable to challenges of general meeting resolutions: the judicial court may be seized to have the irregularity recorded, to set a new compliant allocation, and to order restitution for financial years not yet time-barred. Proceedings concerning buildings in Antibes, Vallauris or Cannes fall under the jurisdiction of the Grasse Judicial Court, those in the Nice area under the Nice Judicial Court, with appeal to the Aix-en-Provence Court of Appeal.

Article 12 further provides for an action to revise the allocation where a unit’s share is more than one quarter higher or lower than that which would result from a compliant allocation, within the time limits it sets out.

Two useful reflexes: vote against approval of the accounts and have your objection recorded in the minutes, which preserves your status as a dissenting co-owner; continue paying your service charge calls during the dispute, since refusal to pay exposes you to acceleration of the debt and recovery costs.

For any co-ownership matter, Me Cécile Zakine advises you and defends your interests (Grasse Judicial Court, Nice Judicial Court, Aix-en-Provence Court of Appeal). Prompt consultation.

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