Presentation: The suspension of payment of rent and the exceptio Many tenants who experience disturbance through the use of their local business, planning to suspend the payment of rent and charges. Before you stop paying, the tenant must take the precaution of acting as a legitimate interest because it must keep in mind that the payment of rent is an obligation and that no one can do justice to himself. The obligation to pay the rent burden on the tenant under the Civil Code but also the lease that binds the parties. However, case law recognizes the tenant the right to suspend the payment of rent and charges due to the inability to use the thing because of the landlord to his failings.
I / rent payment: a legal and conventional
In principle, it is the tenant an obligation to pay rent and agreed to the terms pursuant to section 1728 of the Civil Code which provides:
"The lessee of two main obligations:
1 ° use of the rented property in good family man, and according to the destination that was given to him by the lease, or following the presumed from the circumstances, failing such agreement;
2 to pay the price agreed under the lease. "
Features of this obligation:
_ Only one check is paying
_ It is a debt quérable in principle, the creditor must go to claim the performance of the debtor's home
_ In case of late payment, interest may be payable from the date of the summons for payment,
However, the Court of Appeal of Toulouse ruled in a decision dated March 26, 2002 a slight delay in the payment of rent was not considered a failure by the tenant in carrying out its obligation to to justify the termination of the lease.
II / the exception of default: a defense for the tenant
However, there is a tolerance allowed by the courts in cases where the customer can refrain from carrying out its obligation to pay it when it can use in a normal thing. (Court of Appeal of Paris February 9, 2001).
This tolerance is designated by the term "except for breach" of its obligation to pay only or if the landlord does not meet one or more of its binding obligations.
However, in practice it is not so simple.
Unable to invoke the exception of non-performance
It is impossible to invoke the exception of breach of the obligation in the cases cited below:
_ A tenant pending the completion of rehabilitation works of the leased premises requires the recording of rent to the judges in chambers, it has not proved a state of emergency, this is which was the subject of a decision by the Court of Appeal in Paris July 5, 2002.
_ A tenant can not object to its donors with the exception of default in that it did not establish how the disorder which she complained of have put in a total inability to use the property is e had told the Appeal Court of Paris in its decision of February 25, 2010.
In practice, since the tenant can use the leased premises and that did not stop he can not suspend the payment of rent.
Exceptional cases of breach of the obligation to pay
Fortunately, the tenant can not enjoy the local was given the lease, is entitled to invoke the exception of non-performance when the landlord fails to delivery.
This concept is broad and requires the landlord to provide a place for the intended contract.
The obligation to issue that weighs on the lender requires it to deliver goods in conformity with their intended use.
The landlord can not break free from a clause in the lease by making the tenant of its obligations normally
In a recent decision of 3 July 2010, the Supreme Court held that the lessor fails to delivery by giving to rent a room for the exclusive use of restaurant-brasserie-free system for extracting air pollution opens the tenant the right to act except for non-performance.
Obviously, it would have been different if the lease had imposed this obligation on the tenant, which should have, then, with his own, setting up an extraction device.
An action for breach of exception has the effect of releasing the tenant's obligation to pay the rent until the issuance of the leased premises by the lessor (Cass. civ third. 8-6-1988 No. 87 11,107).
_ Is possible to invoke the exception of breach of duty, if the landlord breached its obligation of delivery of the rented property, since the premises do not comply with their contractual destination.
_ When the landlord breached its duty to peacefully enjoy the tenant of the rented property: multiple water damage making the room completely unusable.
_ The tenant is entitled to invoke the exception of default by not paying the rent when a bailiff's report notes the poor housing and non-compliance with standards of decency, is that had said a ruling by the Court of Appeal Fort de France on 26 February 2010.
Ultimately, the tenant will then suspend the payment of rent to ensure that the inability to use the rented through evidence (bailiff, photos, certificates, quotations etc ...).
I am at your disposal for further information.