Summary
REGULATION
Commercial development reform
- Decree of February 12, 2015
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Smoke detectors: allocation of obligations between landlords and tenants
- Decree of February 2, 2015
CASE LAW
… of January 28, 2015
Real right: time limit
… of December 17, 2014 Promise of sale: breach of contractual stipulations
… of January 28, 2015 Breach of the obligation to deliver
… of January 28, 2015 Compensable damages for the seller in case of error relating to the surface area of the building
… of January 28, 2015
Surface area of private parts: consideration of loggias
… of December 17, 2014 General meeting of co-owners: abuse of majority
… of January 28, 2015 Condition of validity of the notification of the minutes of a general meeting
… of January 28, 2015 General meetings: Obligation to put the contract out to tender
… of January 28, 2015 Construction: no obligation for the holder of the lot to present the second-tier subcontractor to the project owner
REGULATION
Commercial planning reform
The decree of February 12, 2015, which came into force on February 15, 2015, amends the regulatory section of the Commercial Code relating to commercial development to reflect the changes introduced by Law No. 2014-626 of June 18, 2014 (Pinel Law). This decree is of particular interest to developers and owners of retail complexes or drive-throughs, as it relates to commercial development commissions and commercial permits.
Composition of commercial development committees
The decree determines the composition arrangements for departmental and national commissions, as well as rules aimed in particular at preventing conflicts of interest among members of the various commissions.
Business permits
Application for commercial operating license
The decree expands the list of persons authorized to apply for an operating permit. The application may now be submitted by a person entitled to benefit from expropriation for public purposes. Similarly, in cases where a building permit is not required, the application for a commercial operating permit may be submitted by any person who can provide proof of title from the owner(s) authorizing them to commercially operate the property, or by that person's representative. A template for the application for a commercial operating permit and the supporting documents to be submitted with the building permit application will be established by order of the Minister for Trade.
The application must specify the applicant's capacity and the nature of the project.
Contents of the folder
While the necessary documents still aim to allow for the assessment of elements relating to space management, the accessibility of the commercial offer, and the environment, the decree details the list of elements of the file accompanying the application, which is thus lengthened.
The decree mandates the provision of information concerning:
- the project;
- the catchment area;
- maps or plans relating to the project;
- the effects of the project in terms of land-use planning;
- the effects of the project in terms of sustainable development;
- the effects of the project in terms of consumer protection;
- the social effects of the project.
Furthermore, when the project does not require a building permit, the application must specify:
- information relating to the identity of the applicant;
- the location, address and area of the land(s).
Similarly, the file must contain:
For the applicant(s):
- an extract from the registration in the trade and companies register or, if the company is in the process of being formed, a copy of the articles of association registered with the tax authorities;
- The indication of the land concerned, its total area and an extract from the cadastral plan;
- A description of the project specifying its integration into the landscape or an urban project;
- A 1/25,000 scale map showing the location of the project;
- A duly labeled aerial or satellite view showing the project in its neighborhood;
- An axonometric photograph of the current site and a visual presentation of the project allowing appreciation of its future integration in relation to the surrounding buildings and landscapes, its visual impact as well as the treatment of access and the land;
- A graphic document representing all the facades of the project.
1 Decree No. 2015-165 of 12 February 2015 relating to commercial development
Application submission
For projects not requiring a building permit, the application and file are sent to the departmental commission for commercial development (CDAC).
For projects requiring a building permit, the application along with the file is submitted to the town hall, which then forwards the application to the CDAC.
CDAC Decision
Within ten days of the commission meeting or the date of tacit approval, the decision or opinion of the Departmental Commission for Commercial Development (CDAC) is notified to the applicant and published in the prefecture's official gazette. The requirement for the prefect to post the decision at the town hall is not included in the decree. Within the same timeframe, if the decision or opinion is favorable, an extract is published in two regional or local newspapers at the applicant's expense.
The commercial operating permit is valid for three years from the date the building permit becomes final for projects requiring a building permit. This period is extended by two years for projects involving the construction of more than 6,000 square meters of retail space. For projects not requiring a permit, the validity period remains three years from the date of notification of the decision. In the event of an appeal to the administrative court against the commercial operating permit, the three-year period is suspended until a final court decision is rendered.
Appeal against the decision or opinion of the departmental commission
The decree sets out the procedures for appealing decisions of the CDAC (Departmental Commission for Commercial Development). It specifies, in particular, the conditions under which an appeal may be lodged and the persons authorized to file an appeal.
It should be noted that the national commission may, in particular, receive written submissions. The minimum quorum for deliberations has been raised. The commission may only deliberate if at least six of its members are present, compared to five previously. Decisions are adopted by a majority of the members present. The opinion or decision must be reasoned, signed by the chairperson, and indicate the number of votes in favor and against, as well as the number of abstentions.
The decision or opinion is notified to the applicant, to the applicant if different, to the prefect, and, if the project requires a building permit, to the competent authority. The decision is no longer subject to notification to the Minister for Trade.
The notification, which was previously required within two months, must now be made within one month of the commission meeting or the date of tacit confirmation.
Self-referral by the national commission
The decree sets out the procedures for the national commission to initiate proceedings on its own initiative when the project relates to a facility with a sales area exceeding 20,000 square meters. In such a case, the secretariat of the departmental commission must, within ten clear days of receiving the application for commercial authorization, send the national commission an electronic copy of the application along with the supporting documentation. The national commission for commercial development may then review the project within one month of the secretariat of the departmental commission's opinion or decision being notified to the national commission. The commission reviews the project upon a proposal from its chairperson or at least four of its members, by an absolute majority of the members present. It then issues an opinion or renders a decision on the project's compliance. This opinion or decision replaces that of the departmental commission.
The procedure applicable to appeals against CDAC decisions also applies during the appeal process.
Finally, it is clarified that this procedure does not preclude appeals against decisions or opinions of the departmental commission. The national commission rules on all appeals and submissions related to a project in a single decision or opinion.
End of commercial operation
When a retail complex or permanent collection point authorized for commercial operation ceases to be operated for commercial purposes, the building owner(s) must notify the prefect of the department where the municipality is located of the date of cessation of operations. Except in exceptional circumstances, the building owner is responsible for notifying the prefect of the department where the municipality is located of the measures planned for dismantling and restoring the site, within three years of the date of cessation of operations. Failing this, the authority responsible for issuing the building permit may take or have carried out the necessary measures, at the expense and risk of the site owner(s).
Transitional measures
The decree includes transitional provisions for applications for commercial operating permits and building permits that were being processed when the decree came into force. The decree also establishes transitional rules applicable to appeals against decisions of the National Commission for Commercial Development concerning projects that required a building permit, as well as to decisions by the administrative courts to annul operating permits or building permits issued before the decree came into force.
Smoke detectors: obligations of landlords and tenants
Since the implementation of the Alur 2 , the responsibility for installing smoke detectors has shifted from the tenant to the landlord. The tenant is only responsible for maintaining the installation.
The decree of February 2, 2015, implements this change and adapts the regulatory provisions of the Building and Housing Code.
2 Law No. 2014-366 of 24 March 2014 on access to housing and urban renewal
CASE LAW
Real right: limitation in time
3rd Civil Chamber, January 28, 2015 (No. 14-10.013) FS-PBRI:
“When the owner grants a real right, conferring the benefit of a special enjoyment of his property, this right, if it is not limited in time by the will of the parties, cannot be perpetual and is extinguished under the conditions provided for in Articles 619 and 625 of the Civil Code.”
In this case, the condominium association had established, for the benefit of the company EDF, which became ERDF, a right of use over a unit consisting of a public electricity distribution transformer.
Promise of sale: breach of contractual stipulations
3rd Civil Chamber, December 17, 2014 (No. 13-24.597) FS-D:
In this case, a clause in a preliminary sales agreement prohibited the seller from making any alterations to the premises, and in particular from dismantling fixtures.
The Court of Cassation upheld the Court of Appeal's decision to rescind the sale on the grounds that the removal of the wall cabinet and bathroom mirror, which were fixed with wall plugs, had damaged the wall tiles, which had to be completely replaced, and that the decorative tiles laid as a frieze in the bathroom, which were set in plaster, had been torn off, constituting a serious breach of the preliminary sales agreement.
Failure to fulfill the obligation to deliver
3rd Civ. January 28, 2015 (No. 13-19.945) FS-PBR:
The purchasers of a house discovered that the evacuation of their wastewater was not connected to the public sanitation network.
3 Decree No. 2015-114 of February 2, 2015 amending Article R. 129-13 of the Building and Housing Code
They therefore sued the sellers to obtain compensation for their losses. The Court of Appeal noted that the property had been sold as being connected to the public sewage system and found that the connection did not comply with the contractual stipulations. The Court of Cassation dismissed the appeal against the Court of Appeal's judgment, which held that the sellers had failed to fulfill their obligation to deliver the property as described.
Compensable damages for the seller in case of error regarding the building's surface area
3rd Civil Chamber, January 28, 2015 (No. 13-27.397) FS-PBRI:
"While the restitution, which the seller is legally obligated to make following a price reduction resulting from a smaller measurement than the agreed-upon area, does not in itself constitute compensable damages allowing for a warranty claim, the seller can claim against the surveyor who performed the erroneous measurement for a lost opportunity to sell their property at the same price for a smaller area."
The seller can therefore take legal action against the surveyor and assert their damages based on the loss of this opportunity.
Area of private spaces: including loggias
3rd Civil Chamber, January 28, 2015 (No. 13-27.397) FS-PB:
The purchasers of a condominium unit consisting of an apartment had a measurement carried out which revealed a surface area smaller than that indicated by the seller. The purchasers then sued the seller for a price reduction. In support of their claim, they invoked Article 4-2 of the decree of March 17, 1967, as amended by the decree of May 23, 1997, according to which units or portions of units with a surface area of less than 8 square meters are not taken into account for the calculation of the surface area to be included in the deed of sale. They argued that the surface areas of the two loggias, one of 6.27 m² and the other of 6.69 m², should be excluded from the calculation of the private living area.
The Court of Cassation upheld the judgment of the Court of Appeal rejecting the purchasers' claim on the grounds that, on the date of the sale, the two private loggias included in the lot sold were enclosed and habitable and should therefore be taken into account for the calculation of the area of the private parts sold.
General meeting of co-owners: abuse of majority
3rd Civil Chamber, December 17, 2014 (No. 13-27.397) FS-PB:
In this case, the Court of Appeal deemed abusive the refusal of a general meeting to authorize co-owners to change the designated use of a unit from commercial to residential. In support of its decision, the court held that the change in the unit's designated use was not contrary to the building's intended use, was not prohibited by the condominium regulations, and did not infringe upon the rights of the other co-owners.
The Court of Cassation held that the Court of Appeal had substituted its own assessment for that of the general meeting and quashed the judgment. In support of its decision, the Court of Cassation cited the fact that the Court of Appeal had failed to identify how the general meeting's decision was contrary to the collective interests of the co-owners or had been made solely to favor the personal interests of the majority co-owners to the detriment of the minority co-owners.
Conditions for the validity of the notification of the minutes of a general meeting
3rd Civil Chamber, January 28, 2015 (No. 13-23-552) FS-PB:
A company sued the condominium association and the property manager, seeking to have the latter's appointment declared irregular or even invalid and the general meetings he convened declared null and void. The Court of Appeal dismissed the company's claims. The judgment noted that the property manager had sent the minutes of the general meeting by registered letter with acknowledgment of receipt dated June 6, 2006, and held that the failure to reproduce, in the notification letter, the text of Article 42, paragraph 2, of the Law of July 10, 1965, did not render this notification irregular.
The Court of Cassation reiterates Articles 42, paragraph 2 of the Law of 10 July 1965 and 18 of the Decree of 17 March 1967, which respectively stipulate: – actions challenging decisions of general meetings must, under penalty of forfeiture, be brought by dissenting or absent co-owners within two months of notification of said decisions, which is carried out by the managing agent; – the notification must reproduce the text of Article 42, paragraph 2, of the Law of 10 July 1965. The Court then quashes the judgment of the Court of Appeal on the grounds that the failure to reproduce the text of Article 42, paragraph 2, of the Law of 10 July 1965 in the notification of the minutes of the general meeting renders this notification irregular.
General meetings: Obligation to put out to tender
3rd Civil Chamber, January 28, 2015 (No. 13-28.021) FS-PB:
Believing that a resolution violated the requirement to put external service providers out to tender, some co-owners sued the condominium association and the property manager, seeking to have decisions made at the general meeting annulled.
The Court of Cassation upheld the reasoning of the Court of Appeal, which held that the competitive tendering requirement applied only to decisions regarding the choice of contract binding the condominium association, a decision delegated, in this case, to the management committee. Consequently, the request to annul the decision concerning the principle of entering into a new agreement for elevator maintenance, which defined the type of contract to be awarded, had limited scope and had to be dismissed.
The contractor is not obligated to present the second-tier subcontractor to the project owner
3rd Civil Chamber, January 21, 2015 (No. 13-18.316) FS-PB:
To order the main contractor to pay a certain sum to the second-tier subcontractor, the judgment held that by accepting and facilitating the presence of the company as a second-tier subcontractor without having it approved by the project owner, the main contractor committed a fault with respect to the second-tier subcontractor.
According to the Court of Cassation, by making the main contractor bear the obligation incumbent upon the main contractor to present its subcontractor for approval by the project owner, when the company was a second-tier subcontractor and not a subcontractor of the main contractor, the Court of Appeal violated Article 2 of the Law of December 31, 1975, and Article 1382 of the Civil Code.
