The special enjoyment right: using a common area that will never be yours

Two questions settle almost every dispute about a private terrace in Morocco: what instrument created the right, and was that instrument registered. Neither is answered by how long anyone has been using it.

1. A third category, between private and common

Moroccan condominium law works with two categories. On one side the private areas — flats, shops, offices — owned outright by an identified co-owner. On the other the common areas — entrance halls, staircases, roofs, courtyards, gardens — held undivided by all of them. The framework is Law 18-00 on the status of condominium ownership of built properties, promulgated by dahir no. 1-02-298 of 3 October 2002, the general architecture of which is set out in our overview of Law 18-00.

The special enjoyment right — also met as a private or exclusive right of use — creates something in between: a common area allocated to the exclusive use of one designated co-owner. It is a real property right, and it entitles its holder to use the area exclusively and continuously. It is not ownership. The area remains in the undivided ownership of all the co-owners; what has been carved out of it is the use, and only the use.

The situations that recur in Morocco are few and predictable: terraces reached from a top-floor flat, ground-floor gardens, parking spaces in a shared basement, and inner courtyardsadjoining a commercial lot. The same reasoning is applied to a building's frontage when a sign is fixed to it — a case treated separately in our note on the facade as a common area.

2. Two ways it comes into existence — and one that makes it stick

There are exactly two routes into existence, and a third step without which neither route is worth much.

• Written into the bylaws at the outset. The developer provides for the right when drawing up the condominium bylaws, before the lots are sold. This original creation is the most common in Morocco and much the clearest: the buyer knows from the sale contract that a special enjoyment right attaches to the lot. The bylaws should describe the common area concerned precisely — its area, the conditions of use, the charges that go with it. What bylaws must contain is set out in our note on the required content of condominium bylaws.
• Granted later by the general assembly. During the life of the condominium, the assembly may grant a right of this kind over a designated common area. A decision of that importance falls within the three-quarters majority of votes regime of art. 21 of Law 18-00 — the majority thresholds are compared in our note on the three voting regimes at a general assembly. The minutes must be precise on the extent of the right, its duration and the conditions of its exercise. Vague minutes are the origin of most later trouble.
• Registered, in both cases. However it was created, the right is registered against the land title of the building and mentioned on the ownership certificate of the benefiting lot. That registration is what makes it opposable to third parties — future purchasers, secured creditors. An unregistered right is considerably weaker, and the weakness surfaces at the worst moment, on a resale. How to read the certificate is covered in our note on the ownership certificate and what it discloses.

3. How far the right actually extends

Holders tend to read the right generously and neighbours to read it narrowly. What it carries, in practice:

• Exclusive use. The holder uses the area to the exclusion of every other co-owner, and may put furniture, planting and equipment there so long as they remain compatible with the purpose of the building.
• Fittings, within limits. Paving, a pergola, a boundary screen — whatever the bylaws allow, and nothing that touches the structure of the building.
• A right that can be defended. As the holder of a registered real right, the beneficiary can act against interference with that enjoyment, including where the interference comes from the syndicate of co-owners or from another co-owner.
• Value carried into the lot. The right raises the value of the lot it attaches to. A flat with a private terrace sells for materially more than the same flat without one — how much more being exactly the question in section 7.

And what caps it, symmetrically:

• Upkeep at the holder's cost. The terrace, garden or space is kept in good order at the holder's expense and without nuisance to the rest of the building.
• The purpose of the building governs. Use must stay consistent with it: a private garden in a residential building does not become a workshop.
• The charge boundary. Day-to-day upkeep of the area falls on the holder; major repairs — waterproofing a terrace, structural work — remain with the syndicate. That boundary is not always self-evident, and it is worth having it stated in writing before it is tested.
• No structural change. No construction and no alteration to the structure without the authorisation of the general assembly and, where required, planning consent — the regime described in our note on works on common areas, authorisations and penalties.

4. Duration: the term nobody writes down

This is the element most often left blank, and the one that most changes what the right is worth. A right granted without limit of time and a right granted for a fixed term are not the same asset, even where the terrace is identical. The instrument of creation — bylaws or assembly minutes — is where the duration belongs, alongside the extent and the conditions of exercise.

When the duration appears nowhere, the sensible reflex is not to assume perpetuity. It is to treat the silence as what it is: an unresolved point, to be raised before a price is agreed rather than after. In a valuation, that silence is recorded as an uncertainty stated on the face of the report, not smoothed over — Red Book practice requires material uncertainty to be disclosed rather than absorbed into a single confident figure.

5. It travels with the lot, and only with the lot

Because the right is an accessory of the lot, it follows the lot through every transfer.

On a sale, it passes automatically to the buyer of the lot. The notary mentions its existence in the deed and verifies its registration against the land title. Failure to mention it in the deed does not deprive the buyer of a right that is registered — but it is a reliable source of later argument, and it is avoided at no cost by checking the certificate beforehand.

On a succession, it passes to the heirs with the lot. Where the lot itself falls into undivided ownership between several heirs, the right stays attached to the lot and benefits all of them together — which is precisely when its valuation stops being academic, since the whole value of the lot has to be shared out fairly.

Standing alone, it does not move. Transferring the right by itself, apart from its lot, is excluded as a matter of principle: it cannot be sold, given or mortgaged separately. The bylaws may organise particular arrangements — surrendering it back to the syndicate against a reduction in charges, or transferring it to a neighbouring lot with the agreement of the general assembly — but those are exceptions written down in advance, not things to be improvised.

6. Where it breaks down in practice

Four failure modes account for most of what we see on files involving these rights.

• Occupation with no title at all. The most frequent by far: a co-owner takes over a common area — a terrace, a courtyard — without any right ever having been granted. Occupation as a matter of fact, however long it has been tolerated, creates no right of enjoyment. The syndicate, or any co-owner, may ask for it to stop and for the area to be reinstated.
• Going beyond what was granted. A veranda built on a private terrace, a garden turned into an extension of the flat, a reserved parking space sub-let. Overreach of this kind exposes the holder to sanction, up to and including revocation of the right itself.
• The creation itself contested. Co-owners may challenge the validity of a right written in by the developer, on the ground that the bylaws were never put to them, or that the common area concerned is indispensable to collective use. Challenges of this kind reach right back to the original setting-up of the condominium.
• The charge boundary. Major repairs sit with the syndicate, day-to-day upkeep with the holder — and the line between the two is where the argument settles, usually the first time a terrace leaks.

7. What it is worth, and how that is measured

Valuing a special enjoyment right is a technical exercise, and it matters because the right can account for a substantial part of the total value of the lot — on a transaction, on a partition between heirs, or simply to settle a disagreement between co-owners. Four approaches, used together rather than in isolation:

• Comparison. Set the sale prices of otherwise similar lots with and without the right, in the same building or the same district. The difference is what the market itself attributes to the right. Where genuine comparables exist, this is the most reliable route — and the one hardest to argue with.
• Capitalisation. Estimate the theoretical rent the holder would have to pay to enjoy the same area on market terms, then capitalise that flow over the duration of the right. Where the right runs without limit of time, the capitalisation is carried out accordingly; where it runs for a term, the term does the work. This is where section 4 stops being a formality.
• Cost. Where the holder has carried out significant fittings — paving, a pergola, landscaping — their cost can be brought into the assessment, adjusted for age and wear rather than taken at face value.
• Weighting. Area, aspect, outlook, accessibility, floor level, whether the area is overlooked, and the quality of what has already been built there all move the answer, sometimes by a wide margin between two terraces of identical size in the same building.

No percentage of lot value is quoted here, and none should be. There is no scale for what a private terrace adds: the contribution is measured file by file, from the instrument that created the right, its duration, the physical characteristics of the area and the local market. The same discipline applies to a reserved parking space, where the preliminary question is always what right is actually held — the subject of our note on valuing a parking space in a condominium.

A private valuation of a right of this kind is instructed to inform a decision and to support a negotiation — pricing a lot honestly on a sale, sharing a lot fairly between heirs, or giving two co-owners a common bearing. Its conclusions are documented and verifiable line by line, and they impose themselves on nobody. Where a matter reaches court, the court appoints its own expert.

8. Instructing a valuation on a lot carrying an enjoyment right

Bring the instrument first: the condominium bylaws, the general assembly minutes granting the right, and the ownership certificate showing what is registered against the title. Everything else — measurement, comparables, the state of the fittings — we establish on site. Instructions are handled by RICS-certified experts in Casablanca, Rabat, Marrakech, Tangier, Fès and Agadir, and elsewhere in the country from our network. Reports comply with Red Book standards and are delivered in 5 to 8 days, 48-72 hours on the express service, with a firm quote within 24 hours, from 3,500 MAD excl. tax. What we cover on condominium matters is set out on our condominium advisory page. ReaConsult has been advising owners, buyers and institutional clients since 2019, with more than 5,000 valuations completed, offices in 6 cities and a rating of 4.9/5 across 47 reviews.

Note:the status of common areas and the creation of rights over them are governed by Law 18-00 on the status of condominium ownership of built properties (dahir no. 1-02-298 of 3 October 2002) as subsequently amended, and by the bylaws of each condominium, which prevail on every point they regulate. No percentage of lot value, and no discount or premium scale, is quoted in this article: the contribution of an enjoyment right to value has no official scale and is measured file by file. Every file requires the instrument of creation and its registration to be verified against the land title, with a notary or a lawyer, under the regulations in force. A private valuation informs a decision and an arm's-length negotiation; it is documented and verifiable line by line. To instruct us, see our contact page or the property blog.