Presentation: The sublease must be distinguished from the lease management sometimes used to circumvent the prohibition on rent.
The sublease must be distinguished from the lease management sometimes used to circumvent the prohibition on rent.
A. RENTAL Management.
The sublease is separate from the lease management, as in the first case concerns only the enjoyment of the premises. In the second, on the contrary, it covers all the components of the fund and the use of the premises is only incidental and necessary consequence of the lease management.
Accordingly, and provided that it is a true stewardship, this enjoyment can only be sanctioned by the game of the termination clause prohibiting subletting (Cass. civ. July 9, 2003, No. 02 - 11,141).
Conversely, it was considered that the authorization given by the landlord to sublet the leased premises may claim authority to enter into a lease-management in the presence of a clause prohibiting the licensee to grant the enjoyment of places to anyone in any form whatsoever (Cass. civ. October 10, 2001, No. 00-13896).
In the absence of any provision of this type, it does not seem possible to blame the sub-tenant the rental management of its funds.
B. FAILURE TO CONTEST THE LESSOR.
To be regular, the sublease must meet the following two conditions: it must have been authorized by the lessor and the latter must have been called to assist in the act (Commercial Code Article L 145-31).
Failure to contest the landlord makes the sublease ineffective against it. The subtenant can not therefore claim to his direct right against the renewal.
Illegal subletting can justify the issuance of the termination of the lease (Cass. com. March 20, 1963, Bull civ. III No. 170, Cass. 3rd civ. March 12, 2002 No. 487).
The termination of the lease necessarily entails the termination of the sublease, the subtenant then becomes an occupant without right or title (Cass. civ third. June 19, 1970, Bull. Civ. III No. 434).
The irregularity may also be invoked as grounds for non-renewal (Cass. com. January 15, 1962, Cass. Civ. October 17, 1990, No. 89-12528, Cass. 3rd civ. November 2, 1982, Bull. Civ. III No. 210, Cass. 3rd civ. March 13, 1991 No. 89-18164; CA Versailles 13 January 2001).
The landlord is not required prior to the tenant notice (Cass. civ third. March 13, 1991 No. 89-18164, Cass. 3rd civ. July 9, 2003 No. 02-11621) as this is an "instant failure" that can not continue or be repeated (third Cass. civ. November 2, 1982, Bull. civ. III 210). Consequently, no adjustment is possible (Cass. civ third. July 5, 1983: Bull. Civ. III, 157; Cass. 3rd civ. July 9, 2003 No. 02-11621).
C. PROCEDURAL OPTIONS.
In the presence of illegal subletting to non-intervention request of the lessor, the lessor may exercise several actions against the tenant:
Termination of the lease on the basis of the termination clause of the lease;
Termination of judicial jurisdiction;
Refusal to renew the lease without compensation.
a. Termination clause.
It was found that the termination clause can be implemented as a breach of the lease expressly provided that failure must be sanctioned by the contract termination clause (Civ. 3rd February 24, 1999 and May 19, 2004).
Sometimes the lease contains no provision expressly sanctioning non-compliance with formalities. This obligation does not result in this case so as to Article L 145-31 of the Commercial Code.
Termination seems possible that difficult on this basis even if a decision of the Court of Cassation on 14 October 1980, criticized the doctrine seems to allow it.
b. Termination of judicial law.
It is the trial judge to determine whether a breach of the obligation to contribute to the owner in the act of sufficient importance that the termination is immediately delivered or whether merely to allocate damages interests.
The Supreme Court has approved of the lower courts have held that the failure to call the owner to assist in acts of sub-lease was a deliberate violation of unregulated public policy rules of Article L 145-31 of Trade Code causing the termination itself (Cass. civ. March 12, 2002, No. 97-20472).
But in other cases, the termination was refused:
only for the subleasing of the apartment depends on the commercial rental (Cass. Civ. January 10, 1996);
against a tenant who had agreed to hire 24 months when the lease allowed only simple debits (Paris Court of February 20, 1998);
the grounds that, firstly, if it had been called to assist in the act, the landlord could not object to the sublease that option is under lease and, secondly, that the lessor has suffered no prejudice (Court of Appeal of Paris, 12 October 2002): the approximation of the main rent and all subleases showed apparently the landlord had not been frustrated by the action in adjustment (Commercial Code Article L 145-31 paragraph 3).
In the presence of rent the subtenant comply with the limits set by the original lease, the lessor may not object to the sublease.
c. Refusal to renew the lease without compensation.
This is the implementation of Article L 145-47 of the Commercial Code that the landlord can refuse to renew the lease if he has a serious and legitimate reason against the outgoing tenant.
Nevertheless, again, the severity of the reason rests in the discretion of the trier.
08/24/2010
