A garden that only the ground-floor apartment may use. A roof terrace accessible only from the top unit. A parking space or storage room attached to one particular apartment. In many apartment buildings, one co-owner is granted the exclusive use of a part that legally remains common property. This is what we call an exclusive right of use over common parts. It seems straightforward, but in practice it often gives rise to disputes: what exactly is the beneficiary allowed to do, who pays for maintenance, and can such a right ever lapse?
What exactly is an exclusive right of use?
An exclusive right of use reserves the use of a common part to one beneficiary, while that part legally remains the common property of the entire association of co-owners (ACO). The beneficiary therefore does not become the owner of the ground, the garden or the roof. He may only use the part to the exclusion of the other co-owners.
The Justice of the Peace of Ostend, in a judgment of 19 December 2023, set out the characteristics clearly. An exclusive right of use means that use is reserved to the beneficiary while the part remains common, that no additional shares are allocated, that the right has proprietary effect unless stipulated as intuitu personae (personal) or revocable, and that it is perpetual unless the title expressly provides for a temporary or personal character. Importantly: the right does not authorise building on the common part.
Where the right of use is established in the deed of foundation (basisakte), it is presumed to constitute an easement (Cass. 30 January 2014). That presumption partly determines whether the right transfers upon sale of the unit.
No ownership, but maintenance at your expense
A widespread misconception is that an exclusive right of use is merely a benefit. It also entails a burden. The Justice of the Peace of Waregem ruled on 3 January 2023 that an exclusive right of use over a garden does not make the beneficiary the owner of that common part, but does entail that maintenance and repairs are for the account of the exclusive user.
This is logical: the one who alone enjoys, also alone bears the burden of use. As a consequence, you maintain a common part without being the owner of it, and without the ACO automatically contributing to repair costs related to your exclusive use.
What may you do with the part — and what not?
The boundary between permitted use and unlawful appropriation has become sharper in case law. The Justice of the Peace of Hasselt dealt on 24 October 2023 with a case in which the owner of an apartment with an exclusive right of use over an adjoining roof terrace installed a veranda-like canopy: approximately 19 m², four support poles, glass sliding doors, anchored to the façade and glued to the roof.
The judge held that an exclusive right of use allows for the placement of tables, chairs and parasols, but not the erection of permanent structures. The roof remains common, and such an anchored structure alters the concept and appearance of the building. De facto, the beneficiary privatises a common part. Without the prior authorisation of the general assembly, this is unlawful.
The lesson is clear: furniture and movable items fall within your right, fixed and anchored structures do not. For the latter, you need the notification procedure for alteration works and, in many cases, a majority decision.
The prohibition on building on a common part is no minor detail. The exclusive right of use, as the Ostend judge emphasised, gives you no authorisation whatsoever to build on the common part. Anyone who does so anyway creates no right through the mere passage of time: even if a structure has stood for years, it remains unlawful as long as the general assembly has not approved it. Nor may a co-owner invoke the fact that others before him already took portions of the roof into use; an appeal to equal treatment or goodwill is no legal basis. The Justice of the Peace of Hasselt dismissed such a claim as manifestly unfounded on 30 January 2023: there is no legal basis for the Justice of the Peace to authorise, in place of the ACO, a resident to take a portion of the roof under exclusive use because others had previously done so.
Can an exclusive right of use lapse?
Yes. Where the right is personal or purpose-bound, it may cease to exist once the purpose falls away. This is one of the most surprising insights from recent case law.
In a second part of the Ostend judgment of 19 December 2023, the case concerned a hotel ACO. The deed of foundation of 1971, amended in 1973, granted an exclusive right of use over terraces with a view to the hotel operation. When the hotel ceased operations in 2019 and the buildings were converted into apartments, the judge held that the right of use was intuitu personae and purpose-bound to the hotel operation. Upon that change of function, it lapses. It had a preferential, personal character without proprietary effect, and the ACO did not need to prove any prejudiced interest (Article 8.4 of the Civil Code). The result: the terraces had to be vacated, with a penalty payment and an occupation fee on top.
Whether a right of use is purpose-bound is not automatic. It requires a textual examination of the deed of foundation and of any subsequent decisions of the general assembly. If you are uncertain whether your right transfers upon sale or lapses upon a change of destination, a thorough reading of the founding documents is worthwhile.
Importantly, the disappearance of the purpose of use is not the same as a prohibited change of destination. In the same Ostend case, the judge held that the change of destination of the units was itself permitted (Articles 3.71, 3.73 and 3.85 § 2 of the Civil Code) and that the ACO did not demonstrate any prejudiced interest. What the owners could not do, however, was simply continue the personal right of use or convert it into a proprietary right: such a conversion — turning a personal right into a proprietary right attached to the unit — would have required a four-fifths majority. That distinction between a permitted change of destination and a right of use that is not automatically acquired is often the core of the dispute in practice.
Transfer: the right attaches to the unit, not to the person
In most cases, the exclusive right of use is attached to the unit and not to the person. If you sell your apartment, the right in principle transfers to the buyer. However, if you wish to resell the right of use to a neighbour or detach it from your unit, you need the consent of the general assembly.
If your right of use is taken away, compensation may be owed, especially where the right demonstrably added value to your unit — think of an exclusive garden use that co-determined the sale value.
Practical conclusion
An exclusive right of use is a valuable but limited right: you alone enjoy, you alone maintain, and you may not privatise the part with permanent structures. Whether it transfers, lapses or gives rise to compensation depends entirely on the wording of the deed of foundation. Anyone wishing to understand the division of powers within the building more broadly will find the framework in our pillar on the powers and functioning of the ACO.
Do you have a dispute over a garden, terrace or storage room with exclusive use, or do you wonder whether an anchored structure is still acceptable? Reius Advocaten assists both individual co-owners and ACOs. Contact us at info@reius.be for a review of your deed of foundation and your rights.
In re. In jure — Thorough in the facts. Considered in the law.