They have settled in commercial premises but are not businesses. The “dark blinds” worry town halls and irritate local residents. These supermarket-like storage areas installed at the foot of the building and closed to the public are in fact warehouses where orders are prepared. They weaken traditional businesses and generate nuisances that are sometimes unbearable. Above all, are they legal?
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Le Figaro asked Bruno Lehnisch, a legal executive who holds, with Me Jean-Philippe Mariani, lawyer, a blog devoted to the law of co-ownership, to elucidate the question. “These dark stores are illegal for two reasons since they have changed destination (which constitutes its soul, its identity or even its DNA) without the agreement of either the town hall or the co-ownership», Decrypts Bruno Lehnisch. And assuming that these e-commerce warehouses have the authorization of the town hall? Can the co-owners oppose their installation? Before setting up their business – which is therefore not one in reality – on the ground floor of a building, managers must ensure that they have the right to do so and that it complies with the regulations. of condominium.
Three scenarios arise. The first, “extremely rareaccording to the bloggers: the exclusive bourgeois housing clause. In other words, only apartments are allowed. Shops – and warehouses – as well as premises where a liberal activity is carried out (doctor, lawyer, notary, etc.) are therefore excluded. The second case,very common»: the ordinary bourgeois housing clause. Liberal professions are authorized but not shops or warehouses.
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Finally, the last scenario: the clause authorizes commercial activity. At first glance, this case seems very simple. But not that much. Because where the shoe pinches is that certain clauses are precise, others less, on the destination of the building. The regulations must therefore not only indicate whether it is for residential or mixed use and whether the liberal professions are authorized. But also provide information on the character of the building (external appearance, standing, etc.) and its geographical location (district, environment, etc.). In June 2016, the Lyon Court of Appeal ruled that the installation of a convenience store in a condominium was prohibited when a clause in the regulations provided for the prohibition to store perishable materials. “The general assembly considered exactly that a mini-market was a food activity requiring in addition a storage of perishable materials (fruits, vegetables, dairy products …)”, judged the court.
Sound, olfactory and visual nuisances
On the other hand, it happens that the regulation is limited to authorizing a commercial activity on the ground floor but without further precision. In this case, it is not possible to prohibit a priori such or such trade, as the law specifies it (article 9 of the law of July 10, 1965). This is how the Paris Court of Appeal authorized a restaurant activity to be set up at the foot of a building. And it is in this breach that dark stores can rush? At first no. “If a co-ownership regulation authorizes a business or a shop without further details, this category does not cover warehouses. The change of destination would therefore not be regular without modification of the regulations», Analyzes Bruno Lehnisch.
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And even if dark stores were not prohibited by the co-ownership regulations, the trustee and the co-owners could obtain the closure of the business for abnormal neighborhood disturbance. Because not only do they have to ask for the authorization of the general assembly “if (their) activity generates work affecting the common areas or the harmony of the building (article 25 of the law of July 10, 1965)” but they must not cause noise, olfactory or visual disturbances to the neighbourhood. And in this area, too, dark stores are attracting strong criticism. “Dark stores generate nuisances that are difficult to dispute: disfigurement of the window, uninterrupted flow of scooters, nauseating odors, lively discussions late at night…», points out Bruno Lehnisch.
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