Summary
REGULATIONS
Reform of commercial development
Decree of February 12, 2015
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Smoke detectors: distribution of obligations between landlords and tenants
Decree of February 2, 2015
JURISPRUDENCE
… of January 28, 2015
Real right: time limit
… of December 17, 2014 Promise to sell: breach of contractual stipulations
… of January 28, 2015 Breach of the obligation to deliver
… of January 28, 2015 Compensable damage to the seller in the event of error relating to the surface of the building
… of January 28, 2015
Surface of the private parts: taking into account 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 lawsuit minutes of a general meeting
… of January 28, 2015 General meetings: Obligation to call for competition
… of January 28, 2015 Construction: no obligation for the holder of the lot to present the second-tier subcontractor to the master of the work
REGULATIONS
Commercial Development Reform
The decree of February 12, 20151, which entered into force on February 15, 2015, adapts the regulatory part of the Commercial Code relating to commercial development in order to take into account the modifications made by law no. 2014-626 of June 18, 2014 pinel). This decree is of particular interest to promoters and owners of commercial or drive-through complexes insofar as it relates to commercial development commissions as well as commercial authorizations.
Composition of commercial development commissions
The decree determines the methods of composition of the departmental and national commissions as well as the rules aimed in particular at preventing conflicts of interest of the members of the various commissions.
Commercial authorizations
Application for commercial exploitation authorization
The decree extends the list of persons authorized to apply for an operating permit.
The application for authorization can now be requested by a person entitled to benefit from expropriation for public utility. Similarly, in the event that a building permit is not required, the application for commercial exploitation authorization may be submitted by any person who can show proof of a title from the owner(s) authorizing him to commercially exploit the buildings or by that person's agent. A model application for commercial exploitation authorization and the file attached to the building permit application must be set by order of the Minister responsible for trade. The authorization request must specify the capacity in which the applicant is acting and the nature of the project.
File contents
If the necessary documents are still intended to allow the assessment of elements relating to the management of space, the accessibility of the commercial offer, the environment, the decree details the list of elements of the file accompanying the request which is then lengthened.
The decree requires 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.
In addition, when the project does not require a building permit, the application must specify:
- elements relating to the identity of the applicant;
- the location, address and area of the land(s).
Likewise, the file must contain:
For the applicant(s):
- an extract from the register of commerce and companies or, if the company is in the process of being set up, a copy of the articles of association registered with the tax authorities;
- The indication of the land concerned, their 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 map indicating the location of the project;
- An aerial or satellite view duly captioned registering the project in its district;
- An axonometric photograph of the current site and a visual presentation of the project to assess its future insertion in relation to neighboring buildings and landscapes, its visual impact as well as the treatment of access and land;
- A graphic document representing all the facades of the project.
1 Decree No. 2015-165 of February 12, 2015 relating to commercial development
Submission of the request
For projects that do not require a building permit, the request and the file are sent to the departmental commission for commercial development (CDAC).
For projects requiring a building permit, the application accompanied by the file is submitted to the town hall, which then forwards the application to the CDAC.
CDAC decision
Within ten days of the meeting of the commission or the date of the tacit authorization, the decision or the opinion of the CDAC is notified to the applicant, published in the collection of administrative acts of the prefecture.
The posting of the decision at the town hall on the initiative of the prefect is not repeated in the decree. Following the same deadline, in the event of a favorable decision or opinion, an extract is published in two regional or local newspapers at the expense of the applicant. The commercial exploitation authorization is valid for a period of three years from the date on which 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 sales area. For projects that do not require a permit, the period of validity is always three years from the notification of the decision. In the event of an appeal before the administrative jurisdiction against the authorization for commercial exploitation, the three-year period is suspended until the pronouncement of a final judicial decision.
Appeal against the decision or the opinion of the departmental commission
The decree sets the procedures for appealing against the decisions of the CDAC.
It provides in particular the conditions under which an appeal may be exercised as well as the persons authorized to exercise an appeal. It should be noted that the National Commission may in particular receive written contributions.
The minimum quorum for deliberations is raised. The commission can 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 the decision must be reasoned, signed by the president and indicate the number of favorable and unfavorable votes as well as the number of abstentions. The decision or the 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 the subject of a notification to the Minister responsible for trade. The notification, which was to take place within two months, must now be made within one month of the meeting of the committee or the date of tacit confirmation.
Self-referral to the national commission
The decree sets the procedures for self-referral to the national commission when the project relates to equipment whose sales area is greater than 20,000 square meters. In such a situation, the secretariat of the departmental commission must, within ten clear days of receipt of the commercial authorization request, send the national commission a dematerialized copy of the request accompanied by the file. The national commission for commercial development can then take up the project within one month of notification to the secretariat of the national commission of the opinion or decision of the departmental commission. The commission takes up the project on the proposal of its president 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 conformity of the project. The opinion or this decision replaces that of the departmental commission.
The procedure applicable in the context of an appeal against a decision of the CDAC is applicable during this procedure.
Finally, it is specified that this procedure does not preclude appeals against the decision or the opinion of the departmental commission. The National Commission decides on all referrals and appeals relating to a project by a single decision or a single opinion.
End of commercial operation
When a commercial complex or a permanent withdrawal point that has given rise to an authorization for commercial operation ceases to be operated for commercial purposes, the owner(s) of the buildings notify the date of cessation of operation to the prefect of the department of the settlement municipality. Barring exceptions, it is up to the owner of the buildings to notify the prefect of the department of the municipality where the site is located of the measures planned to carry out the dismantling and restoration of the site, at the end of a period of three years, from the date of cessation of operation. Failing this, the competent authority to issue the building permit may take the necessary measures or have them carried out, at the expense and risk of the owner(s) of the site.
Transitional measures
The decree provides for transitional provisions for applications for commercial exploitation authorization and building permits under examination when the text comes into force. The decree also determines transitional rules applicable to appeals against decisions of the national commission for commercial development relating to projects requiring a building permit as well as to decisions of cancellation by the administrative judge of authorization to operate. or building permits before the entry into force of the decree.
Smoke detectors: obligations of landlords and tenants
Since the entry into force of the Alur law 2 , the responsibility for the installation of smoke detectors no longer lies with the tenant but with the owner.
The tenant is only responsible for ensuring the maintenance of the installation. The decree of February 2, 20153 draws the consequences of this modification and adapts the regulatory provisions of the Construction and Housing Code.
2 Law no. 2014-366 of March 24, 2014 for access to housing and renovated urban planning
JURISPRUDENCE
Right in rem: limitation in time
3rd Civil. 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 in the conditions provided for in Articles 619 and 625 of the Civil Code.
In this case, the syndicate of co-owners had set up, for the benefit of the company EDF, now ERDF, a right of use over a lot consisting of a public electricity distribution transformer.
Promise to sell: breach of contractual stipulations
3rd Civil. December 17, 2014 (n°13-24.597) FS-D:
In this case, a clause contained in a promise of sale prohibited the seller from modifying the premises and in particular the dismantling of elements qualifying as buildings by destination.
The Court of Cassation confirms the judgment of the Court of Appeal which rules on the resolution of the sale on the grounds that the removal of the wall unit and the bathroom mirror, fixed by pegs penetrating the wall, had caused deterioration wall tiles that had to be replaced in their entirety and that the decorative tiles placed in a frieze in the bathroom, sealed with plaster, had been torn off, which characterized a serious breach of the stipulation of the promise to sell.
Failure to deliver
3rd Civil.
January 28, 2015 (n°13-19.945) FS-PBR: Buyers of a house noticed that the evacuation of their waste water was not connected to the public sewage network.
3 Decree no. 2015-114 of February 2, 2015 amending article R. 129-13 of the construction and housing code
They therefore sued the sellers to obtain compensation for their damage. The Court of Appeal noted that the building had been sold as being connected to the public sewerage network and found that the connection did not comply with the contractual stipulations. The Court of Cassation dismissed the appeal against the judgment of the Court of Appeal which considered that the sellers failed in their obligation to deliver.
Compensable damage of the seller in the event of an error relating to the surface of the building
3rd Civil. January 28, 2015 (n°13-27.397) FS-PBRI:
"If the restitution, to which the seller is bound by law following the reduction in price resulting from a lesser measure in relation to the agreed area, does not constitute, in itself, a compensable loss allowing an action in guarantee, the seller can prevail against the measurer having carried out an erroneous measurement, of a loss of chance to sell his good at the same price for a lesser surface”.
The seller can therefore turn against the measurer and assert his prejudice consisting of the loss of a chance.
Surface area of private areas: taking into account loggias
3rd Civil. January 28, 2015 (n°13-27.397) FS-PB:
The purchasers of a co-ownership lot consisting of an apartment had a measurement carried out, which revealed an area smaller than that indicated by the seller. The buyers then sued the seller for a reduction in the price. In support of their request, they invoked article 4-2 of the decree of March 17, 1967, in its wording resulting from the decree of May 23, 1997, under the terms of which lots or fractions of lots with an area of less than 8 square meters are not taken into account for the calculation of the area to be included in the deed of sale to assert that the areas of the two loggias, one of 6.27 m², the other of 6.69 m², should be excluded from the calculation of the habitable private area.
The Court of Cassation confirms the judgment of the Court of Appeal rejecting the purchasers' request on the grounds that on the date of the sale the two private loggias, included in the lot sold, were closed and habitable and therefore had to be taken into account for the calculation of the area of the private portions sold.
General meeting of co-owners: abuse of majority
3rd Civil. December 17, 2014 (n°13-27.397) FS-PB:
In this case, the Court of Appeal considered as abusive the refusal of a general meeting to authorize co-owners to change the destination of a lot for professional use into a lot for residential use.
In support of its decision, the court held that the modification of the destination of the lot was not contrary to the destination of the building, was not prohibited by the co-ownership regulations and did not infringe the rights other co-owners. The Court of Cassation considers that the Court of Appeal substituted its assessment for that of the general meeting and overturns the judgment. In support of its decision, the Court relies on the fact that the Court of Appeal did not note how the decision of the general meeting was contrary to the collective interests of the co-owners or had been taken for the sole purpose of favoring the personal interests of the majority co-owners to the detriment of the minority co-owners.
Condition of validity of the notification of the minutes of a general meeting
3rd Civil. January 28, 2015 (n°13-23-552) FS-PB:
A company sued the syndicate of co-owners and the trustee to have the appointment of the latter declared irregular or even non-existent and the general meetings that it had convened null and void. The Court of Appeal dismissed the company's claims. The judgment notes that the trustee notified the minutes of the general meeting by registered mail with acknowledgment of receipt dated June 6, 2006 and holds that the failure to reproduce, in the notification letter, the text of the Article 42, paragraph 2, of the law of July 10, 1965 is not such as to render this notification irregular.
The Court of Cassation recalls articles 42, paragraph 2 of the law of July 10, 1965 and 18 of the decree of March 17, 1967 under the terms of which respectively: – actions whose purpose is to challenge the decisions of general meetings must, under penalty of forfeiture, be introduced by the opposing or defaulting co-owners, within a period of two months from the notification of the said decisions which is made to them at the behest of the trustee – the notification must reproduce the text of article 42, paragraph 2, of the law of July 10, 1965. The Court then overturned the judgment of the Court of Appeal on the grounds that the absence of reproduction in the notification of the minutes of the general meeting of the text of article 42, paragraph 2 , of the law of July 10, 1965 makes this notification irregular.
General meetings: Obligation to call for competition
3rd Civil. January 28, 2015 (n°13-28.021) FS-PB:
Believing that a resolution contravened the requirement for competition between external service providers, co-owners sued the syndicate of co-owners and the trustee, for annulment of decisions of the general meeting.
The Court of Cassation takes up the reasoning of the Court of Appeal which considered that the requirement of competition was only required for the decision-making on the choice of the contract binding the syndicate of co-owners, decision delegated, in l species, to the union council. Consequently, the request for nullity of the decision relating to the principle of the subscription of a new agreement relating to the maintenance of the lifts defining the type of contract to be concluded had a limited scope and had to be rejected.
No obligation for the holder of the lot to present the second-tier subcontractor to the contracting authority
3rd Civil.
January 21, 2015 (n° 13-18.316) FS-PB: To condemn the holder of the lot to pay a certain sum to the second-tier subcontractor, the judgment holds that by accepting and favoring the presence of the company, as a second-tier subcontractor without having it approved by the contracting authority, the holder of the lot has committed a fault with regard to the second-tier subcontractor.
According to the Court of Cassation, by making the holder of the lot bear the obligation on the main contractor to present his subcontractor for the approval of the contracting authority when the company was a second subcontractor rank and not a subcontractor of the holder of the lot, the Court of Appeal violated article 2 of the law of December 31, 1975 and article 1382 of the civil code.
