1. Condition precedent without fixed term stipulated in the promise of sale
2. Terms of appointment of the trustee of co-ownership
3. Recourse of the trustee against an administrative decision
4. Ownership of the basement
5. Indexation of the rent
6. Assistance of the lessor to the subletting
7. Cumulative remuneration of the real estate agent
1. Condition precedent without fixed term stipulated in the promise of sale
3 rd Civ.
May 20, 2015 (n°14-11.851) FS-PB: By a private deed dated November 1 , 2004, an owner sold a plot of land to a buyer under the condition precedent of obtaining a certificate of town planning.
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 nature. 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. 2. Modalities for appointing the syndic of co-ownership
3 rd Civ.
April 15, 2015 (n°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 syndic for annulment of several decisions adopted during a meeting general 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. 3. 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 post of work of the security guards, where the control screens of the cameras placed in the rest of the building are located.
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.
3 rd Civ
basement 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 ”.
5. Indexation of the
3 rd Civ rent.
May 20, 2015 (No. 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, s rose after application of the sliding scale clause to the sum of 3,815,439 euros.
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.
3 rd Civ
subletting 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.
7. Cumulative remuneration of the
1 st Civ real estate agent.
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.
