Newsletter n° 26 – Real estate law
LEGISLATIVE AND REGULATORY NEWS
Housing contract
Decree no. 2015-587 of May 29, 2015
Defense of property rights
Bill of May 20, 2015
Accessibility
Ratification bill of February 4, 2015
JURISPRUDENCE
SALE
Promise to sell
Condition precedent with no fixed term
PROPERTY
Syndic
Appointment of the syndic
Recourse of the syndic against a decision of the CNIL
Right of ownership
Ownership of the basement
LEASE
Commercial lease
Rent indexation and revision
Residential lease
Limit to lessor assistance for subletting
REAL ESTATE AGENT
Remuneration
Validity of cumulative remuneration
LEGISLATIVE AND REGULATORY NEWS
ALUR law: standard housing contract
The law of July 6, 1989 amended by the Alur law (law no. 2014-366 of March 24, 2014 for access to housing and renovated town planning) requires the use of a standard lease contract for residential use.
The decree of May 29, 2015, taken for the application of articles 3, 8-1 and 25-7 of the law of July 6, 1989, specifies the scope of this obligation and defines a standard lease contract for the rental bare housing and another for the rental of furnished housing. The text is also supplemented by a notice relating to the respective obligations of each party, the content of which was set by an order of May 29, 2015. This system comes into force on August 1, 2015. The use of standard contracts applies to contracts rental of premises for residential use or for mixed professional and residential use, and which constitute the main residence of the lessee, with the exception in particular of:
- joint tenancies of furnished accommodation formalized by the conclusion of several contracts between the tenants and the lessor;
- rental accommodation subject to a personalized housing assistance agreement or assistance from the national housing agency;
- rental accommodation belonging to a low-cost housing organization that is not subject to a personalized housing assistance agreement.
In general, these standard contracts contain the clauses imposed by the legislation but leave the parties a certain leeway allowing them to complete the contract within the limits of the applicable rules.
In substance, the two standard contracts are broken down into eleven parts entitled as follows:
Designation of parties
2. Object of the contract: this section contains a description of the accommodation, the destination of the premises, if applicable, the designation of the premises and accessory equipment of the building for private use by the tenant, the list of premises, parts, equipment and accessories of the building for common use, equipment for access to information and communication technologies.
3. Effective date and duration of the contract
4. Financial conditions: this part specifies in particular:
- the amount of the rent, if applicable, in tight areas, mention is made of the specific terms and conditions for setting it;
- recoverable charges;
- in the event of joint tenancy, subscription by the lessor to insurance on behalf of the joint tenants;
- the terms of payment of the rent;
- where applicable, exclusively when renewing a contract, the terms and conditions for reassessing a manifestly undervalued rent.
5. Works: Mention is made, where applicable of the amount and nature of the works to improve or bring them into conformity with the characteristics of decency carried out since the end of the last rental contract or since the last renewal, of the increase in rent during the lease following improvement work undertaken by the lessor or acquisition of equipment and reduction in rent during the lease following work undertaken by the tenant.
6. Warranties
7. Solidarity clause
8. Termination clause
9. Rental fees: article 5 of the law of July 6, 1989 must be reproduced in this section, which also specifies the details and distribution of the fees.
10. Other special conditions
11. Annexes: this last part mentions the attachments to the contract. Are thus targeted:
- the extract from the regulations concerning the destination of the building, the enjoyment and use of the private and common parts, and specifying the share relating to the rented lot in each of the categories of charges
- the technical diagnostic file
- the information notice relating to the rights and obligations of tenants and landlords
- the inventory, an inventory and a detailed condition of the furniture
- where applicable, prior authorization for rental
- where applicable, references to the rents usually observed in the neighborhood for comparable dwellings.
Each party may require the other, at any time, to draw up a compliant contract. In the event of absence in the rental contract of any of the information relating to the living area, the reference rents and the last rent paid by the previous tenant, the tenant may, within a period of one month from the effective date of the rental contract, give formal notice to the lessor to include this information in the lease. In the absence of a response from the lessor within one month or in the event of refusal by the latter, the lessee may, within three months of the formal notice, seize the competent court in order to obtain the if applicable, the reduction of the rent.
Protection of property rights – projects
On May 20, 2015, senators tabled a bill to strengthen the protection of property rights.
This text, which aims to fight against the occupation without right or title of real estate, revolves around two axes. It aims on the one hand to prevent these situations and intends on the other hand, to organize a procedure in the event of occupation without right or title. The text thus provides that from its entry into force, any occupation of a building free of charge must be the subject of an agreement signed between the occupant and the owner of the building.
This agreement must contain the occupant's commitment to maintain the building while the owner must undertake to provide decent housing. The bill organizes the end of gratuitous occupation.
When the occupant wishes to leave the premises, he must notify the owner by letter with acknowledgment of receipt and must leave the building within thirty days from the date of receipt of the letter. Similarly, when the owner intends to regain enjoyment of his property, he must notify the occupant by mail with acknowledgment of receipt, the latter will then have a period of thirty days from the date of sending the mail to leave the building. Beyond that, the owner may engage the device provided for by the law instituting the enforceable right to housing (DALO law) extended to occupation without right or title. The second part of this bill essentially consists in extending to occupation without right or title the system provided for by the DALO law.
The owner, tenant or occupant free of charge may therefore appeal to the prefect to give notice to the occupant to leave the premises. This occupant may be sentenced to one year in prison and a fine of 15,000 euros. The text also aims to establish a period of 48 hours from the moment the owner, tenant or occupant free of charge notices the occupation by a third party, to have the flagrante delicto noted by a judicial police officer. . In the event of a finding of untitled occupation by a judge and at the request of the owner, the prefect may resort to public force in order to dislodge the occupant without right or title of this building. It should be noted, in the same spirit, the filing of a bill on May 28, 2015 which tends to extend to 7 days instead of 48 hours the period during which flagrante delicto of unlawful occupation of the home of a others (art. L 226-4 of the Penal Code, allowing immediate expulsion.
Accessibility
The draft law ratifying Ordinance No. 2014-1090 of September 26, 2014 relating to the accessibility of establishments open to the public, public transport, residential buildings and roads for people with disabilities has been approved. adopted by the Senate on June 2 and transmitted to the National Assembly which examined the text at the beginning of July.
The ordinance was ratified by law no. 2015-988 of August 5, 2015. This ordinance aimed to update the system established by the law of February 11, 2005 for equal rights and opportunities. In this regard, it should be noted that the ordinance notably created accessibility agendas for establishments open to the public which did not comply with accessibility standards as of December 31, 2014.
JURISPRUDENCE
Condition precedent without fixed term stipulated in the promise of sale
3rd Civil. May 20, 2015 (n°14-11.851) FS-PB:
By a private deed of November 1, 2004, an owner sold a plot of land to a buyer under the suspensive condition of obtaining a town planning certificate.
On May 21, 2010, the buyer summoned the seller's heirs to obtain a repeat sale. The Court of Cassation upheld the appeal judgment rejecting this request. The Court of Appeal had on the one hand noted that the planning certificate had not been requested until several years after the signing of the sales contract and after the introduction of the proceedings. It also considered that the stipulation of a condition precedent without a fixed term could not confer on the obligation a perpetual character. Thus, in the absence of price indexation and a revaluation coefficient, the court had held that the parties had had the common intention of setting a reasonable deadline for the fulfillment of the condition precedent and had deduced from this that the promise of sale was lapsed.
Methods of appointment of the syndic of co-ownership
3rd Civil. April 15, 2015 (No. 14-13.255) FS-PB:
The owners of a lot in a building subject to the statute of co-ownership have sued the syndicate of co-owners as well as the trustee for annulment of several decisions adopted during a general meeting and in particular the decision to appoint the trustee.
This request having been rejected by the Court of Appeal, the owners appealed to the Court of Cassation. The Court confirms the judgment insofar as the syndic contract did not fall within the contracts and markets referred to in article 21 of the law of July 10, 1965 in its wording prior to the law of March 24, 2014. According to the Court, the Court of Appeal, which did not apply article 19-2 of the decree of March 17, 1967 in its wording resulting from the decree of April 20, 2010, rightly deduced that notwithstanding the absence of competition and consultation of the union council, the decision appointing the trustee had been validly adopted.
It should be noted that since the entry into force of the law of March 24, 2014, the appointment of the trustee must be preceded by a call for competition. This decision therefore has a limited scope insofar as it is only intended to apply to situations prior to the entry into force of the Alur law.
Recourse of the syndic against an administrative decision
CE May 6, 2015 (n°366713):
In this case, the president of the CNIL had given formal notice to a union to remove the video surveillance camera which it had put in the workstation of the security agents, where the control screens of the cameras placed in the rest are of the building.
Noting that the union had not complied with the formal notice, the CNIL's restricted committee had, by deliberation, ordered the data controller to put an end to the continuous nature of this processing and had imposed on the union a pecuniary penalty of an amount of 1 euro accompanied by an additional sanction of publication. The syndicate of co-owners requested the cancellation of this deliberation. However, the Council of State does not rule on the cancellation of the deliberation but on the standing to act of the syndic, who introduced the request on behalf of the union. In this regard, the Board recalls that, in cases where authorization is required, the trustee, acting on behalf of the co-ownership, is required to have, under penalty of inadmissibility of his request, a formal authorization from the general meeting of co-owners to take legal action in its name, authorization which must specify the object and purpose of the litigation initiated. Since the trustee's action was not preceded by any prior formal authorization, the Board considers that he had no standing to act.
Basement property
3rd Civil. May 13, 2015 (n°13-27.342) FS-PB:
In the depths of a plot belonging to the plaintiffs was a cellar accessible on one level only from the neighboring garden, which belonged to the defendants. Believing that the seller of the property belonging to the plaintiffs was the holder of a simple right of use on this cellar which had expired during the sale to the plaintiffs, the plaintiffs summoned their neighbors and the seller to have the right of ownership declared extinguished. use of the latter and note the occupation without right or title of the cellar by the applicants. The Court of Appeal considered that the defendants are the owners of the cellar.
The Court of Cassation dismissed the appeal against this decision insofar as "the presumption of ownership of the property below in favor of the owners of the soil is only likely to be contested by proof to the contrary resulting from a title, whatever in either the holder, or of acquisitive prescription”.
Rent indexation
3rd Civil. May 20, 2015 (n°13-27.367) FS-PBRI:
In this case, commercial premises were leased from February 2, 2006. On April 20, 2010, the lessee requested a review of the rent which, after application of the sliding scale clause, amounted to the sum of €3,815,439.
The lessee proposed that the amount of the rent be set at 3,256,335 euros and seized the rent judge. This request was rejected by the Court of Appeal and then by the Court of Cassation. According to the Court, in the absence of a change in the local commercial factors having themselves led to a variation of more than 10% in the rental value, there was no reason to review the rent on the basis of Article L 145-38 of the Commercial Code which excludes, by derogation from the rule laid down in Article L. 145-33 of the same code, the reference in principle to the rental value.
Assistance from the lessor to the subletting
3rd Civil. April 15, 2015 (No. 14-15.976) FS-PB:
In this case, a lessor had granted a commercial lease to a hotel management company.
Nine years later, he had issued a leave with refusal of renewal by invoking the conclusion of sublease contracts which were, according to him, irregular, for lack of participation of the lessor in the acts. The Court of Appeal had validated this leave. The Court of Cassation has on the contrary considered that when the rented premises are intended for a hotel residence activity consisting in making available to customers, in addition to accommodation, services such as the rental of furnished or furnished accommodation, the sub- leasing being the very object of the activity of the tenant, the lessor does not have to be called upon to contribute to the acts of subletting.
Accumulation of real estate agent's remuneration
1st Civil. April 9, 2015 (n°14-13.501) FS-PB:
A real estate agent was entrusted with a search mandate relating to a property for which he had a mandate to sell.
On the same day, the seller and the buyer entered into an agreement to sell accompanied by a remuneration of 20,000 euros from the agent. The sale finally became final through the effect of a new promise to sell, concluded following the seller's withdrawal. The real estate agent then sued the seller and the buyer for payment of damages. The Court of Appeal rejected this request on the grounds that the real estate agent cannot receive remuneration from both the seller and the buyer at the same time. Pursuant to Articles 6 of Law No. 70-9 of January 2, 1970 and 73 of Decree No. 72-678 of July 20, 1972, in the wording applicable to the case, the Court of Cassation considers that no provision of these texts does not preclude a real estate agent from holding a mandate from a seller and a mandate from a buyer for the same operation. On the contrary, according to the Court, the right to commission exists for each mandate provided that the requirements prescribed by these articles are met.
