Maine Divorce Law Blog

Termination of the lease and repossession of abandonment: a recast procedure

Under the provisions of an Act of 22 December 2010, the landlord may, where the elements it suggests that housing was abandoned by its occupants, to the tenant on notice to prove that he actually occupies the slot. This notice must be made by a bailiff. In the absence of response from the tenant within one month of notification, the officer must observe the state of abandonment of housing. It provides a report containing an inventory of property left behind with their approximate value. This record allows the lessor to a finding by the trial judge to terminate the lease and repossession. Article 14-1 of the Law of 6 July 1989 on improving relations rental amended by Law of 22 December 2010 referred to above states that "the termination of the lease is recognized by the judge in the conditions provided by regulation." A decree of 10 August 2011 organizes the means of terminating the residential lease and the resumption by the landlord of the premises abandoned.

Article 1 of the decree states that the application for a declaration of termination of the lease for the recovery of abandoned premises "may be made by motion." The procedure is simplified because the court decides so without debate. Termination of the lease following a standard procedure, by subpoena, however, is still possible.

If the evidence provided by the landlord that the property was abandoned by its occupants, the judge of the district court found the termination of the lease and ordered the resumption of the premises. Documents of a personal nature are placed in a sealed envelope and kept by the bailiff for two years. In the months following the notification of the decision, the tenant or occupant's head may oppose.

If opposition parties are summoned to the hearing. The court decides on the requests made by the landlord, he also hears interlocutory applications and means of defense on the merits of the tenant. The ruling of the district court then replaces the order issued on request. In the absence of opposition, the order produced all the effects of a judgment that has become final.

The procedure for recovery of the premises is conducted by a bailiff, or if it finds that the person expelled and now its chief occupants of the premises voluntarily released after the notification of the order, or when authorized by resolution of Justice has the force of res judicata to return the premises abandoned. In case of refusal of the tenant to leave, the officer sends a request to the prefect of the department for the assistance of the police, in accordance with Article 50 of the Decree of 31 July 1992 establishing new rules relating to civil proceedings execution. The prefect has a period of two months to publicize its response. The silence maintained by the administrative authority during this period is a rejection of the request. The refusal is generally pronounced when the warden believes that such police intervention carries the risk of serious disturbances of public order, according to the case Couitéas State Council of 30 November 1923. If the application is approved, a date on which the police or gendarmerie take place is fixed. If it is during the recovery operations that the premises are again occupied by the deportee, the bailiff proceeds with the eviction without having to obtain a new title for expulsion. Indeed, under Article 208 of the Decree of 31 July 1992 cited above, "Untitled relocation of the deportee on the same premises constitutes an assault. The commandment to have to quit the premises served beforehand continues to have effect. "

Termination of residential lease and recovery of the premises in case of abandonment.

Presentation: The Decree of 10 August 2011 relating to procedures for termination of residential leases and recovery site in case of abandonment became effective. This decree lays down the procedure for terminating the lease and the resumption of abandoned places.

Decree of 10 August 2011 relating to procedures for termination of residential leases and recovery site in case of abandonment became effective.


This decree lays down the procedure for terminating the lease and the resumption of abandoned places.


Besides the ability to continue the termination of the lease following a standard procedure (by subpoena), it is now possible to form this petition by


The court then decides without debate about:


termination of the lease,
the recovery of the premises,
possibly the payment of arrears of rent or other amounts due under the lease,
and the abandonment of worthless furniture.


An objection to this decision may be made by the tenant or the last of its chief occupant, within one month of its meaning, otherwise it will become final.


A tenant who is without fault on his part, unable to form this object within this period without fault on his part, may obtain an appeal out of time.


When the order has the force of res judicata, the landlord may well resume following a simplified procedure for expulsion, which also helps to rid the furniture worthless on the fate of which the judge ruled.


The judge will have before the performance if there are valuables in the premises.


Here, in detail, how organized this procedure.


This can be made by motion.


It will tend to see see the termination of the lease (Article 14-1 of the Act of July 6, 1989) to the resumption of local abandoned and condemned to do the tenant to pay the amounts due under the lease.


The application is delivered or sent to the Registry by the landlord or agent and must be accompanied by supporting documents, including minutes of the bailiff to establish abandonment.


If from the documents provided (including the observation of vacancy) than the obvious places are vacant, the tenant is no longer performing its obligations and the property was abandoned by its occupants, the judge of the court instance notes the termination of the lease and ordered the resumption of the premises. If necessary, it shall act on the request for payment.


When the inventory contained in the minutes of the bailiff reported assets left behind, the judge said abandoned property does not appear to have value, with the exception of papers and documents of a personal nature that are placed in a sealed envelope and kept for two years by the bailiff.


If the judge rejects the request, its decision is without recourse to the lessor except for one, to proceed in the ways of law.


A copy of the order bear the enforcement order is served on the initiative of the lessor, lessee and occupant of the last known leader of the tenant's landlord.


The meaning must contain, under penalty of nullity, in addition to the information required for the acts of bailiff:

1 ° The indication that he may be opposed to the order by the recipient hearing the appeal;

2 ° The indication of the period within which the opposition shall be filed, the court before which it must be brought, and the forms in which it must be done;

3 The information that the recipient can read the registry of documents produced by the landlord within the period specified in 2;

4 ° The warning that without opposition within the time specified it will no longer have no recourse and that the lessor may continue its good;

5 If the order ruling on the fate of furniture left behind:

a) The warning in the absence of opposition within the time specified it will no longer have no recourse and could be evacuated property left behind;

b) The summons to be removed within one month after service of the order and the recall of the provisions of Article 207 of the decree of July 31, 1992.


If service is made in person, the bailiff must be verbally communicated to the tenant indicated above. The bailiff must include the completion of this step in the act of meaning.


The order is void if it has not been served within two months of its date.


The tenant or any occupant of his head may oppose the order.


The opposition is filed within one month after service of the order by statement delivered or sent to the Registry.


The execution of the order is suspended during the opposition period and in case of opposition within that period.


In case of opposition, the Registrar shall forthwith notify the bailiff who prepared the record provided for in Article 14-1 of the Act of July 6, 1989 and shall convene the parties at the hearing.


The invitation is addressed to all parties.


The court decides on requests by the lessor and reviews applications incidental or defenses at the bottom that do not raise a matter within the exclusive jurisdiction of another court.


The trial court then will replace the order.


The judge found that the application was made improperly may order the applicant to a civil fine.


If neither party appears, the court finds the termination of the proceedings. The order is then void.


In the absence of opposition in the months after the service, or in case of withdrawal of the party opposing party, the order produced all the effects of a judgment that has become final.


An appeal out of time, however, can be requested (Article 540 of the Code of Civil Procedure).

The amicable termination of commercial lease

Presentation: In a commercial lease, the parties are free to decide by mutual agreement to terminate their contractual relationship. The landlord and tenant can agree to break the lease allowing the lessor to repossess his property quickly and the tenant to stop paying rent and expenses until the end of the triennium in exchange for release sites. Such termination is subject to a formality, since the writing requirement is necessary. In practice, the parties will take the precaution to write in clear terms of the termination settlement. This article aims to highlight the principle of mutual termination of the lease business, and its principal mechanisms.

In a commercial lease, the parties are free to decide by mutual agreement to terminate their contractual relationship.

The landlord and tenant can agree to break the lease allowing the lessor to repossess his property quickly and the tenant to stop paying rent and expenses until the end of the triennium in exchange for release sites.

Such termination is subject to a formality, since the writing requirement is necessary.

In practice, the parties will take the precaution to write in clear terms of the termination settlement.

This article aims to highlight the principle of mutual termination of the lease business, and its principal mechanisms.

 

The principle of admission of the termination by agreement

Article 1134 of the Civil Code provides:

"Agreements legally formed take the place of law to those who made them.

They can not be revoked by mutual consent or for causes authorized by law.

They must be performed in good faith. "

This is in support of this article that the 1134 law allows the termination of early amicable commercial lease.

The Cour de cassation, in a ruling dated November 14, 2007, it is preferable to attach importance to this act of termination by agreement, in that it may constitute evidence in proceedings.

The tenant can leave after notification to and acceptance of the deed by the lessor.

Otherwise, his departure could be a breach of contract.

Termination by agreement subject to the condition

Sometimes, however, that the amicable termination of commercial lease is accepted by the contracting parties, but it is also subject to conditions:

 

The landlord may accept the cancellation provided that the tenant pays a termination fee or vice versa or just a new tenant who will succeed him in the rental.

It must still be noted that in the latter case, the tenant must be quite careful as it is faced with the autonomy of the will of the landlord that can easily refuse the successor subject or even modify the terms of the lease.

In a case where a landlord had refused to sign with the successor presented by the tenant a new lease terms and conditions of the former was censured the decision of a court of appeal, without characterizing the fault of the lessor, held that this refusal stemmed from a breach of its obligations to the lessor by the lessee (Cass. civ third. November 14, 2007 No. 06-15544 FS-PB, of Caffarelli c / Company film Film: RJDA 4 / 08 No. 380).

 The Supreme Court admits abuse of rights, even if it is very difficult to prove.

 

The substitution of the commercial lease contract by another

The amicable termination of commercial lease does not automatically mean the final rupture of the contractual relationship between landlord and tenant. It is possible that both parties agree a new lease after termination of the first to leave the "new basis".

This substitution is not necessarily beneficial to the tenant in the same way that the landlord: the restitution of the premises is not required, as a new security deposit for example.

But any changes made locally by the tenant will be considered for re-evaluation of the monthly rent (Cass.com March 14, 2008).

The amicable termination of commercial lease is possible even if the landlord can turn to his advantage. The tenant must be careful when the termination procedure, including not to leave before the act of termination is written.

Nevertheless, it is imperative for the tenant to use an act of termination by agreement to avoid conflict with his landlord.

The notification to the registered creditor of the act of termination by agreement

The lessor continues to terminate the lease of the building in which operates a business that is subject to registration must notify its request to creditors previously registered at the domicile elected by them in their entries (C. com. Art. L 143 -2).

So even in the case of a termination by agreement, the requirement of notification to the registered creditors is required because it is obvious that this is to prevent fraud and protect the creditors who have a security interest in the goodwill.


The notification is formal notice to carry out the terms of the lease (Cass. civ third. February 8, 1989 No. 87-11919, Sté Soficim c / Coche: Bull. Civ. III 31).

Its purpose is to reserve the registered creditors a means of safeguarding their security, whose lease is a key element, enabling them to perform the obligations under the lease in lieu of their debtor (third Cass. civ. 13 April 1976 No. 74-11774, Lamy c / Coffy: Bull. civ. III 151; Cass. 3rd civ. May 17, 1977 No. 75-14976, Gay c / Arnaud: Bull. civ. III 215) .

Creditors are recipients of the notification of all creditors who requested the registration of a lien or pledge on the business.

However, the creditor beneficiary of a provisional registration of collateral on a business can not rely on the provisions of Article L 143-2 of the Commercial Code if it has not conducted a supplementary registration two months from the day the decision on the claim has acquired the authority of res judicata, indeed, in this case, the provisional registration became effective retroactively without (Cass. civ third. No. 6 December 1995 2210 P, Nahabedian c / Flex Vich: RJDA 2 / 96 No. 191, third case).

The creditor must have registered before the termination of commercial lease has become effective.
The prior assessed upon termination settlement, the registration must be prior to the date of the agreement.

This step requires the writer of the act that ensures the effectiveness of the agreement between the parties.