- Compensable damage in the event of an error by the diagnostician
- Early repayment indemnity
- Expropriation for public utility – Scope of the right to compensation
- Participation of the syndicate of co-owners in the event of an action by a co-owner
- Appendices to the minutes of the general meeting
- Expenses
- Mandate of the trustee – regularization
- Authorization of the trustee to take legal action
- Judicial fixing of the rent
1. Compensable loss in the event of error by the diagnostician
Mix. July 8, 2015 (n°13-26.686) PBRI:
In this case, the parasitic state given to the purchasers was incorrect and did not allow them to know before the purchase, the advanced state of infestation of the building by termites.
The purchasers therefore sued the real estate agent through whom they had purchased the property as well as the diagnostician's insurer for compensation for their damages, the latter having been placed in compulsory liquidation. The insurer contests before the Court of Cassation its order to repair the material and enjoyment damage suffered by the purchasers.
In support of its appeal, the insurer claims that the consequences of the breach of the obligation to inform can only be analyzed as a loss of opportunity and not as material damage. The Court of Cassation dismissed the appeal. According to the Court, it follows from Article L. 271-4 of the Construction and Housing Code that the technical diagnostic file appended to the promise of sale or the authentic deed of sale of a building guarantees the purchaser against the risk linked to the presence of termites and that the responsibility of the diagnostician is engaged when the diagnosis has not been carried out in accordance with the standards enacted and the rules of the art, and that it proves to be erroneous. The material and enjoyment damages suffered by the purchasers as a result of this erroneous diagnosis are therefore certain and the insurer of the diagnostician owes them its guarantee.
2. Early repayment indemnity
1st Civil . June 17, 2015 (n°14-14.444) F-PB:
Invoking the dismissal of one of them, two co-borrowers proceeded to the early repayment of their loans using a repurchase of credit from another establishment and then sued the bank for restitution of the early repayment indemnities.
The bank is contesting the appeal ruling granting the request.
According to the bank, the repayment of the loans was not really motivated by the dismissal of one of the borrowers but by the failure of a renegotiation of the interest rate. The Court of Cassation, relies on the appeal judgment, under which it is specified that the borrowers had motivated their decision to repay the loans early by the dismissal of one of them. The Court therefore considers that the Court of Appeal was therefore right to decide that the reason relating to the reduction of interest rates was in no way exclusive of that relating to the dismissal and ordered the bank to return the early repayment indemnities.
3. Expropriation in the public interest – Scope of the right to compensation
ECHR 25 June 2015 (req.24756/10) Couturon c. France
In this case, the applicant complained of the lack of compensation for the loss of value of the part of his property from which he had not been expropriated due to the construction of the A89 motorway near it and invoked the violation of Article 1 of Protocol No. 1 relating to the protection of property.
The Court considered that France had a wide margin of appreciation in this case insofar as the construction of the motorway was part of the implementation of a regional planning policy, where the interest General of the community occupied a prominent place. Furthermore, the Court considers that the owner benefited from a fair judicial examination, the French courts having duly examined his arguments relating to the depreciation of his property following the construction of the motorway. Consequently, the Court concludes that there has been no violation of Article 1 of Protocol No. 1 to the ECHR.
4. Participation of the syndicate of co-owners in the event of an action by a co-owner
3rd Civil . July 8, 2015 (n°14-16.975) FS-PBI
The owner of lots in a building subject to the status of co-ownership for having been divided into lots divided between two co-owners, has assigned the other owner, in demolition of constructions affecting the common parts built by this one without authorization.
To order the co-owner to restore the premises, the Court of Appeal held that insofar as the community of union members was not organized, it could not be involved in the proceedings. The Court of Cassation reverses the judgment. According to the Court, a co-owner who exercises an action on an individual basis for the restoration of the common portions must call the syndicate of co-owners in the case, after having, if necessary, had his representative appointed by the court.
5. Appendices to the minutes of the general meeting
3rd Civil . July 8, 2015 (No. 14-12.072) FS-PB:
The owner of a lot within a building subject to the status of co-ownership, summoned the trustee, in communication of the caretaker's employment contract.
According to the Court of Appeal, the co-owner was entitled to ask the trustee for the communication of the documents which are necessarily annexed to the minutes of the general meeting. Such was the case with the caretaker's employment contract insofar as her hiring had to receive the approval of the co-ownership. According to the Court of Cassation, the employment contract of a union officer does not constitute an appendix to the minutes of the general meeting. The judgment is therefore quashed.
6. Expenses
3rd Civil . July 8, 2015 (No. 14-12.995) FS-PB:
In this case, the purchaser of lots in a building subject to the status of co-ownership disputes his order to pay charges.
According to the Court of Appeal, this purchaser was inadmissible to challenge the general meeting during which the decision to call for funds had been taken insofar as this purchaser was not known to the trustee since the transfer of the lots did not had not been notified in the forms required by article 6 of the decree of March 17, 1967, so that he did not have to be summoned. The Court of Cassation considers on the contrary that the syndicate of co-owners, which opposes to the purchaser the inopposability of the transfer of ownership occurred in the absence of notification of the transfer, cannot claim from him the payment of the charges of co-ownership. The appeal decision is therefore quashed by the Court.
7. Mandate of the trustee – regularization
3rd Civil . 2015 September 16, 2015 (No. 14-16.106) FS-PBI:
A general meeting on January 27, 2010 gave a mandate to a trustee until December 31, 2010, then the general meeting of July 5, 2012 retroactively gave a new mandate to this trustee.
A judgment having upheld the request of two co-owners for the cancellation of a decision taken by the general meeting, the trustee, on October 25, 2011, raised an appeal against the decision on behalf of the syndicate.
Since the syndic's mandate expired on that date, the respondents invoked the inadmissibility of the appeal for lack of power on the part of the syndic. The Court of Appeal held that the appeal lodged by the trustee when he had no mandate on that date was void of a substantive nullity and that the nullity had not been covered.
The Court of Cassation clarified that the regularization of the powers of the trustee who acted in court on behalf of the union without a mandate cannot intervene after the expiry of the appeal period, consequently, the Court rejected the appeal brought by the union co-owners.
8. Authorization of the trustee to take legal action
CE July 3, 2015 (n°371433):
The general meeting of a syndicate of co-owners had invited the trustee, by a deliberation, to “ exercise a possible appeal in contestation of the building permit concerning the adjoining program ”. To accommodate the plea of inadmissibility raised in defence, the Administrative Court of Appeal subsequently approved by the Council of State considered that, in the absence of any other clarification as to the object and purpose of the dispute that this deliberation mentions, this could not amount to authorization validly given by the general meeting to the trustee in order to appeal the contested judgment.
9. Judicial fixing of the rent
3rd Civil . 1 , 2015 (No. 14-13.056) F-PB :
The owner of leased commercial premises sued the lessees to set the rent for the renewed lease.
To fix the rent of the renewed lease according to the rental value, the judgment of appeal takes account in particular of the three-yearly revisions which could have intervened on May 3, 2008 and May 3, 2011. The Court of Cassation reverses the judgment insofar as, by ruling in this way when no request for a three-year rent review had been made by extrajudicial document or by registered letter, the Court of Appeal violated Articles L. 145-37 and R. 145-20 of the Commercial Code .
