The legitimacy of surveyors recognized in matters of co-ownership by the Court of Cassation

Why is this judgment of the Court of Cassation important?

For Maître Bertrand Périer: “Several elements reflect the importance of this judgment. First, the fact that the Court of Cassation decided to publish it in its Bulletin. The Court of Cassation only publishes in the bulletin those judgments which it considers have value in principle beyond the specific case they settle. This is a very small minority of his judgments. The publication shows that this is a decision that is not pure species. Another element: the Court of Cassation wrote a “summary” to accompany the publication of this judgment. It is in a way the summary by the Court of Cassation of its own judgment. It is quite clear since after having quoted articles 1 1° and 2 of the law of May 7, 1946, she writes: "violates these texts the court of appeal which, to say that a plan annexed to the acts of a co-ownership is regular and is binding on successive co-owners, holds that it matters little that it was not carried out by a surveyor-expert, whereas the plan annexed to the deeds of co-ownership delimits the land rights of the co-owners”.

With this summary, does the Court of Cassation not intend to give a very general scope to its judgment?

For Maître Bertrand Périer: " Indeed. This judgment therefore extends to all the plans annexed to the deeds of co-ownership. Thus, when the plan annexed to the deeds of co-ownership delimits the land rights, it can only be the work of a surveyor-expert. Otherwise, it is unenforceable. The generality of the terms used shows that the Court of Cassation does not intend to confine this solution to horizontal co-ownership or to the very particular situation of the case, namely co-ownership for two. The solution is applicable to all co-ownerships regardless of their nature or the number of co-owners…”

Does this judgment in fact limit the monopoly of surveyors to plans delimiting land rights?

For Maître Bertrand Périer: " Absolutely. Conversely, plans that do not delimit the land rights, for example because they are not annexed to the deeds of co-ownership or not published, do not come under the monopoly. The annexed plans which delimit the land rights come under the monopoly. This decision does not create a “new monopoly” as I have read. This is the simple application to co-ownership of a very old principle according to which any plan intended to delimit land rights can only be carried out by a surveyor-expert. There is nothing new here! The Court of Cassation merely draws the conclusions from articles 1.1° and 2 of the law of 1946: the law reserving to surveyors the establishment of documents delimiting land rights, necessarily fall under this monopoly the plans annexed to the deeds of co-ownership having such a purpose of delimitation”.

So what are the purposes of this monopoly?

For Maître Bertrand Périer: "The reasons and justifications for this monopoly have been known and established for a long time by case law: it is a question of reserving for a regulated, controlled profession, the exercise of which presupposes the acquisition and maintenance of a skill and the respect of a deontology, the acts delimiting the real estate, in order to secure and protect the right of ownership and the rights of the owners".

More than ever, surveyors are asserting themselves as recognized and legitimate actors to carry out all the missions inherent in land law. For individuals, it is also the guarantee of being able to rely on a reliable expert who secures their rights as owners.