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. "
09/26/2011
Termination of the lease and repossession of abandonment: a recast procedure
09/13/2011
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).
09/02/2011
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.
08/29/2011
Clauses deemed not written and abusive in the leases for residential use
Presentation: When the tenant pays more rent or pays late, it can be tempting to attribute the lessor of costs of recovery. A landlord can it be imputed cost recovery against a tenant? Dan sun decision dated July 13, 2011, the Supreme Court has said no, arguing on the basis of Article 4, paragraph p of the Act of July 6, 1989, introduced by the Act of July 13, 2006 on national commitment to housing) that should be deemed null and void any clause in a residential lease which the tenant support, including cost recovery. This aricle is to inform the tenant by distinguishing unfair clauses deemed not written.
1/The Clauses deemed not written in the leases subject to the law of July 6, 1989.
The list of clauses deemed not written is contained in Article 4 of Law No. 89-462 of July 6, 1989.
There are currently 19 provision of this type which include:
Shall be disregarded:
When the tenant pays more rent or pays late, it can be tempting to attribute the lessor of costs of recovery.
A landlord can it be imputed cost recovery against a tenant holding a lease for residential use?
In a decision dated July 13, 2011, the Supreme Court answered in the negative, arguing on the basis of Article 4, paragraph p of the Act of July 6, 1989, introduced by the Act of July 13 2006 on national commitment to housing) that should be deemed null and void any clause in a residential lease which the tenant support, including cost recovery.
This case is interesting because the tenant is likely that contractual stipulations contained in the lease for residential use and has signed, prevents him from opposing the requests of some donors.
This case illustrates that judges do not hesitate to call an unwritten clause if it is against the law.
Of course, it would have been otherwise if it was a furnished apartment and therefore not subject to the lo July 6, 1989.
A precision worthy of note, the landlord must give away a receipt to the tenant who makes the request.
A distinction should be a clause illegal or deemed not written an unfair term.
A clause deemed null and void means that it is against the law.
A clause will be illegal ipso facto annulled in so far as it will violate the mandatory provisions of the Act of July 6, 1989 and that, whatever the quality of parts.
In practice, this means that the tenant will not need to take legal action to protest this provision and will simply aleta sn lessor that the clause is illegal.
However, a clause will be deemed reasonable if it promotes a professional at the expense of an individual.
Of course, in this case, the tenant must take the precaution to go to court in order to declare the abusive clause.
It will have the burden of proof of déséqulibre significant.
2/The unfair
It should be recalled that when the lease is signed, the balance of parties must be respected and that the law of July 6, 1989 imposes rules of public order the parties to whom it will not be waived.
Concretely, this means that the landlord can impose terms less favorable to the tenant even though the latter has expressly agreed.
It is not possible to impose on a party that is illegal.
Because of the litigation that has developed with respect to certain clauses considered abusive by the courts, the Commission condemned the unfair provisions often stipulated in the residential leases (recommendation No. 2000-01 dated June 22, 2000 ).
The concept of unfair terms is defined by Article L 132-1 of the Consumer Code, "in contracts between professionals and non-professionals or consumers, are unfair terms which have the purpose or effect of creating, detriment of non-professional or consumer, a significant imbalance between the rights and obligations of parties to the contract. "
Although the opinion of the Commission have no legal value, the judges will appreciate the unfairness of certain clauses in light of its recommendations.
Case law shows that unfair terms are often found in lease furnished including the lease, security deposit, access, leave given by the tenant etc. ..
By way of example, was deemed illegal as part of a furnished, the duration of an irrevocable lease furnished to the extent that it would prevent, in case of death of the policyholder, the heirs to terminate the contract for a legitimate reason.
The Commission also found unfair leases subject to the law of July 6, 1989 including certain clauses which require the tenant to bear the costs, which usually fall to the lessor.
Was found to be abusive clauses that impose costs locatire soot, the cost of replacing mailbox, the replacement of the meter.
Other clauses require to purchase from an insurance company specific and sometimes goes to impose certain risks to ensure that the tenant is however not obliged to provide.
08/24/2011
ATTENTION TO LEAVE ON LEASE BASIS, ALWAYS a writ
The date of receipt of the notice of leave by registered letter with acknowledgment of receipt is the one affixed by the Post Office service in the delivery of the letter to its recipient.
Reported by the Judgement, the Constitutional Court confirmed that the leave granted by registered letter with return receipt shall take effect only if it has been delivered to the recipient.
This solution is classical, and I always advise my clients to deliver their leave by a bailiff, especially to my clients when owners want to give clearance to resume (resume housing for themselves or a loved one).
The legal problem also applies to the tenant, however it arises less frequently in practice.
08/16/2011
Abandonment of housing and recovery by the lessor
Presentation: To return to rented accommodation, the landlord must normally resort to deportation proceedings. However, since Law No. 2010-1609 of 22 December 2010, article 14-1 was inserted into the Act of July 6, 1989 which provides that "when elements suggest that housing is abandoned by its occupants, landlord can give notice to the tenant to justify occupying the unit. " There is now a right of unilateral termination of the lease for the benefit of the lessor bypassing the deportation proceedings and to avoid delays, including that of two months from the issuance of a command to leave provided for Article 62 of the Act of July 9, 1991.
To return the rented accommodation, the landlord must normally resort to deportation proceedings.
However, since Law No. 2010-1609 of 22 December 2010, article 14-1 was inserted into the Act of July 6, 1989 which provides that "when elements suggest that housing is abandoned by its occupants, landlord can give notice to the tenant to justify occupying the unit. "
There is now a right of unilateral termination of the lease for the benefit of the lessor bypassing the deportation proceedings and to avoid delays, including that of two months from the issuance of a command to leave provided for Article 62 of the Act of July 9, 1991.
However, certain formalities must be observed scrupulously.
The notice must be served by a bailiff who draws up an official report of operations stating the derelict housing and the market value of any property left on site. There can not proceed without complying with the provisions of Article 21 of Law No. 91-650 of 9 July 1991 determining the persons to be present during the penetration into the slot where access is denied or not possible due the absence of the tenant. Must obtain prior approval of the judge of the execution if the property is occupied by one third and tenant agreement is lacking.
This finding will allow the bailiff to the judge to decide, under conditions determined by regulation, the judicial termination of the lease, which is not granted automatically. The lessor should definitely not get the housing of its own accord before a favorable decision from the judge, under penalty of being prosecuted for violation of domicile.
It should be noted that the repossession by the lessor is impossible if it is found that the persons mentioned in Article 14 of the Law of the July 6, 1989 still holds. They are:
spouse,
descendants
partner related to the tenant by a civil solidarity pact
Ascending
the registered partner
dependents
It is stated that these persons unless the spouse and the partner must have lived with the tenant for at least one year from the date of desertion. If this is the case, the lease is transferred from their right, unless otherwise agreed by them.
Similarly, it appears that articles 55 and 56 of the Act of July 9, 1991 remain applicable, so that the landlord and the bailiff must respect its provisions regarding the fate of personal property left behind by the tenant.
08/08/2011
Failure by a property manager in his duty to advise
In a recent decision of April 28, 2011, the Court of Cassation ruled that the property manager with the management of housing that he knows is contracted to undertake the investigations necessary for the execution of his duty to advise against of its customers.
In practice, the payment of grants to carry out work in rented accommodation is subject to the obligation to first conclude an agreement with the ANAH. This conventionnement requires the landlord to comply with certain conditions in connection with the rental of his property.
In this case, the management of homes under contract was assigned to a property manager.
The Court of Appeal had not satisfied the landlord demanded that the condemnation of real estate professional to pay compensation for the damage that had generated the demand for repayment of the aid of ANAH. They saw no fault could be upheld with regard to the property manager who certainly knew the character of homes under agreement, but had not been informed in advance of obtaining grants.
The Court of Cassation quashed the decision of the trial court and held that the property manager that manages housing that he knows they are under contract to perform additional due diligence to satisfy its duty to provide advice to the against his client.
In other words, a real estate agent who manages homes under contract will be especially diligent and precise information on his client must respect the commitments it.
07/27/2011
the right to adequate housing and tenant rights
Presentation: The law called SRU, dated December 13, 2000, amended Article 6 of the Act of July 6, 1989 and section 1719 of the Civil Code, building on the lessor's obligation to deliver housing Decent. It is not only residential leases, but also mixed-use leases that are concerned (Supreme Court, 3rd Civil Chamber, May 4, 2010). The criterion is the destination of the local: if it is the tenant's primary residence, then the obligation exists automatically without the need for special provisions in this regard. The acceptance by the tenant of the residential status does not relieve the landlord of its obligation to deliver. This requirement is part of a general trend in favor of the tenant. In addition to the laws of July 6, 1989 and May 31, 1990, it is noted that the Constitutional Council has devoted, in a decision dated January 19, 1995, the right to adequate housing as a constitutional goal. It is necessary to examine the content of the right to adequate housing (I) and the consequences of its violation (II)
I - The content of the right to decent housing
A) The legal obligation
Under Article 6 of the Act of July 6, 1989, accommodation can not let it show "obvious risks that could endanger the physical safety or health" and must be "with the elements making it consistent with the use of housing ". This is to ensure comfort and a decent minimum for the benefit of the tenant.
Therefore, it is stated that, in general the accommodation itself must be in good repair and use. This requirement applies to all the facilities housing is filled with words and is brought to lease.
Since no legislation nor does a regulatory definition of the concept of "housing" must then refer to the case of premises used as main house, the list of conditions established by the decree of January 30 2003. The latter makes a distinction between protecting the physical safety and health of the tenant on the one hand, and obligations to taking pieces of equipment and comfort the other.
In any case, the decree provides that housing is the subject of a notice of inadequacy or danger can not be regarded as decent housing.
The housing must ensure the safety and health of the tenant
To do this, housing must ensure:
Þ The enclosed cover
Þ The condition, in accordance with normal use of the devices maintained
Þ Lack of risk posed to the safety or health of the nature and state of conservation and maintenance of building materials, pipes and coatings housing
Þ Good condition and compliance with statutory and regulatory networks and connections of electricity and gas and heating equipment and hot water
Þ Adapting to the needs of a normal occupancy of opening devices and ventilation adapted to the needs of a normal occupancy of housing
Þ A sufficient natural light
The housing must ensure the good condition of the elements of comfort and equipment
The technical aspects are specified by the decree and tend to provide both adaptation to housing characteristics, as the needs of normal use and compliance with regulations.
Since this is the danger to be prevented, an installation no longer meet current regulations by the tenant does not confer the right to require it to meet, without proof of dangerousness (CA Paris, 6th ch. B March 27, 2003).
Items of equipment and comfort concerning the drinking water supply, electricity, heating, sanitation, kitchen or kitchenette.
B) The exemption conventional
The law provides a place for freedom of contract, stating that the landlord can get rid of this obligation. In this case it is the tenant must provide the necessary work but the parties are providing for rent reduction.
However, the parties can not freely agree that the tenant in exchange for lower rents, perform or carry out the work will be up to standard of comfort and livability. The High Court has recently reiterated (Cass.civ3ème, February 3, 2010) that this work can not be charged to the tenant, even with a counterparty. The law thus operates a sorting obligations derogable and non-derogable, without which the housing will be decent.
These particular works are listed by the Decree of March 6, 1987 and include:
Þ The provisions concerning the composition and size of rooms, such as living accommodation, that is, excluding the kitchen, 9m2 or 12 m2 in the presence of a kitchen, the ceiling height is usually at least 2, 20m
Þ the existence of opening to the outside of the building for ventilation and lighting
Þ permanent water supply as well as electricity (if gas)
Þ there is a shower room and separate water closet
Þ that of a kitchen or a corner set up to receive a cooking appliance
Þ infiltration or absence of upwelling
Þ absence of serious lack of maintenance in housing, with the main structure (walls, roofs, stairs, floors, balconies) in good condition and tight coverage.
II - The penalties for violation of the right to decent housing
What can the tenant?
Þ Ask compliance
Article 20-1 of the Act of July 6, 1989 provides for a request to that effect.
Failing agreement, the tenant may apply to the judge who will determine the nature of work and their time frame, possibly subject to a penalty (CA Lyon, 8 ch., June 30, 2009)
Þ get rent reduction or suspension of the payment
On the basis of the same article the tenant can go to court to request the reduction of the rent or suspend, with or without logging, the payment and the lease until completion of the work ordered. Before the Act of July 13, 2006, the reduction of judicial rents could not intervene in default of works required (Cass. civ. Third, Feb 20. 2008).
It may also raise the absence of cause (under section 1131 of the Civil Code) and uphold the exception of non-performance. In a decision dated April 28, 2009, the Supreme Court held that the obligation to pay rent is not due until the home was unsafe and unfit for its intended purpose.
Þ Termination of the lease, unilateral or judicial
Finally, the tenant can terminate the lease unilaterally, by observing the legal notice period of three months. The possibility of a judicial termination for default is left to the discretion of the judge.
07/17/2011
The incidence of actual profit to return from leave to live
Presentation: The grant of leave to live in a service room for, not an old lessor as stated the leave, but a home help is fraudulent.
In a decision dated February 8, 2011, the Court of Appeal of PARIS has specified that leave fraudulently issued the visa section 15-1 of the Act of July 6, 1989, in view of a pattern and inaccurate benefit of a person who does not intend to occupy the premises personally, must be declared irregular.
In this case, a 83-year-old owner was granted leave to return when she did not intend to live in places subject of the recovery.
In fact, she wanted to accommodate a third person, ie home help she needed, given his health problems.
Now a third person is not eligible for section 15 of the 1989 Act in the event of recovery to live, so that the landlord was forced to hide the reality.
In these circumstances, the Court of Appeal could infirm trial and consider the resumption of a room to live for good, not to the lessor as stated in the old leave, but to help home, is fraudulent.
However, it was probably more appropriate for the landlord to try to give clearance by invoking the adjective "serious and legitimate reason" to the extent that the courts may grant a right to recover the profits of those who did not.
07/07/2011
COMMERCIAL LEASE AND despecialization: RULES.
Overview: Any lessee or tenant is required in principle to use the rented according to the destination that has been given in the lease contract. Any change of activity may result in termination of the lease. In commercial matters, is considering legislation leases, however, several cases of de-specialization, envisaged by Articles L 143-47 to L 145-55 of the Commercial Code (formerly Articles 34 to 34-8 of the Decree of September 30, 1953). This possibility is consistent with an economic development ...
Any lessee or tenant is required in principle to use the rented according to the destination that has been given in the lease contract.
Any change of activity may result in termination of the lease.
In commercial matters, is considering legislation leases, however, several cases of de-specialization, envisaged by Articles L 143-47 to L 145-55 of the Commercial Code (formerly Articles 34 to 34-8 of the Decree of September 30, 1953).
This possibility is in line with economic developments.
This is the possibility given to a commercial tenant to modify the activity specified in the lease, to strict conditions.
Two types of de-specialization are possible
- The partial de-specialization. Which allows the tenant to add or complementary activities related to his business. Article L 143-47 of the Commercial Code
- The total de-specialization, which implies a total change of destination and is subject to stricter conditions Article L 145-48 of the Commercial Code
I-The partial de-specialization for an activity closely related to that already carried
A) Introduction
This de-specialization is limited to public policy, which means that no clause to the contrary can not ban it. Om. Article L 145-15 of the Commercial Code.
The notification will be made to the lessor by extrajudicial act, (usher) in which will indicate the type of activity related or complementary.
It requires a prior authorization request.
The owner will have a period of two months from the date of notification failing which he shall be deprived of any right of objection, which means that his silence would be accepted.
In case of dispute related and complementary character of the High Court will have a sovereign power to assess the related and complementary activities.
In this matter respecting the form and timing will be important in pain of one of the following sanctions:
- A termination of the lease (with application of the termination clause in the lease for non-compliance clauses);
- A refusal to renew if necessary for a legitimate reason
B) Definition of related or complementary character and Jurisprudence
There is no definition, except an appreciation of the courts to the case, which hold alternative or cumulative number of criteria, such as:
- The identity of customers or product category,
- The similarity of working methods,
-The identity of raw materials,
-The identity of the manufacturer (although this criterion is not sufficient by itself)
-The extension of a party to a while: rarely recognized by the courts.
Ex. 3 rd Civ. July 19, 2000, appeal No. 1259 fs-d, Michaud c / Hugonnenc), coffee bar with the activity of fast food.
with butcher catering business
Civ 3rd, April 3, 1996, Pigne c / Taun selling sandwiches and soft drinks into the bakery business.
For cons:
Com 18 June 2002, the activity of pizzeria, involving a cook, can not be an activity related to the restoration in the form of salads, sandwiches, which does not require cooking, since the terms of the lease agreement does not allow such an addition of activity.
B) The result of the expansion of activity: an increase in the price of rent
It will be amicable or speak at the next triennial review if it has increased the rental value.
Upon renewal, an uncapped rent could be considered.
Plenary II despecialization change in total activity
A broad discretion of the judge is possible in case of difficulty being noted that the first tenant can not rely in the first nine years.
A) The change in activity
will be considered "given the economic conditions and needs of the rational organization of the distribution" which implies a broad discretion of the Judge.
This implies that these activities are compatible with the destination, the characters and the situation of the building, the condominium (art L 145-49 al 1 of the Commercial Code)
Note that in case of disability of the policyholder or retirement,
It will be entitled to assign its lease with a change of activity except in case of incompatibility with the destination and characteristics of the building (Article. L 145-51 of the Commercial Code). It will make the same request for extra-judicial act to the landlord and creditors indicating the nature of the planned activities and the price of the sale.
B) Establishment
The application for authorization to the lessor will be made by extrajudicial act, (usher) in which will indicate the type of activity on pain of nullity. So be careful to respect the form under penalty of termination of the lease.
The extra-judicial act must be reported to the registered creditors of the business
The landlord will have a period of 3 months.
In the same way and no reply, his silence shall permit a change of activity.
The answer may be authorized under strict conditions (eg carry out work at the expense of the tenant, a rent increase ...)
The High Court referred the tenant may, notwithstanding the refusal of the lessor, authorize the transformation of the lease, unless the refusal is a serious and legitimate reason.
The landlord can ask the rent increase from the transformation of the lease.
Note that in case of retirement or disability of the tenant, the landlord will have a period of two months to buy out the lease conditions notified. In case of dispute, the High Court must be entered within two months.
Living at your disposal for any clarification.
