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.
08/29/2011
