Newsletter n° 17 – Real estate law
REGULATIONS
Standard co-ownership trustee contract and special services
March 26, 2015
JURISPRUDENCE
of February 18, 2015
Effect of the handing over of the keys with regard to the joint tenant
… of February 19, 2015 Address for service of a summons to a legal person
… of February 16, 2015 Alur Law: Application in time of the new payment period granted to the tenant
… of March 3, 2015
Authorization to cut the branches overhanging a neighboring
… of February 18, 2015 Terms of constitution of an ASL
… of February 19, 2015 Consequence of the cancellation of the order to pay equivalent to seizure of property
… of February 18, 2015 Majority applicable to decisions relating to the closure of the co-ownership
… of March 11, 2015
No subsidiary right of first refusal of the tenant during the bulk sale of a building
… of February 18, 2015
Application of article L.290-1 of the CCH to any promise to sell a building
… of February 11, 2015
Condition for the opening of the right to compensation for local residents in the event of a change in traffic
REGULATIONS
Publication of the decree defining the standard contract of co-ownership trustee and the specific services
The Alur law (law no. 2014-366 of March 24, 2014 for access to housing and renovated town planning) made two essential changes to the rules applicable to the trustee contract.
These modifications affect, on the one hand, the form and content of the contract and, on the other hand, the remuneration of the trustee. We therefore draw your attention to Decree No. 2015-342 of March 26, 2015 defining the standard contract for co-ownership trustees and the specific services provided for in Article 18-1 A of Law No. 65-557 of July 10 1965 amended setting the status of co-ownership of built buildings applicable to trustee contracts entered into or renewed as of July 1, 2015.
The new article 18-1 A of law no. 65-557 of July 10, 1965 setting the status of the co-ownership of built buildings now requires the use of a standard syndic contract defined by decree.
The decree of March 26 is taken for the application of this provision and fixes in appendix a model of contract as well as the minimal size of the characters, which cannot be lower than that of the body eight. It can however be derogated from the stipulations of this standard contract when the syndicate of co-owners is composed exclusively of legal persons and that the building is totally intended for other than housing. Article 18-1 A also establishes the principle of fixed compensation for the trustee and additional compensation for certain services listed exhaustively. The standard contract decree n° 2015-342 of March 26, 2015 defining the standard contract of co-ownership trustee and the specific services, provided for in article 18-1 A of law n° 65-557 of July 10, 1965 modified fixing the status of the co-ownership of the buildings built by the decree provides for a non-exhaustive list of services included in the package such as periodic visits and verifications of the building, formalities for declaration of loss or management of payments. Appendix 2 of the decree determines the restrictive list of services that may give rise to additional remuneration and classifies them into six categories of services. Additional remuneration may thus be received for:
- Services relating to additional meetings and visits: This includes the preparation, calling and holding of additional general meetings and exceeding the agreed reference time slots.
- The organization of additional meetings with the union council and the realization of additional visits of the co-ownership.
- Services relating to the rules of co-ownership and the descriptive state of division: the decree provides for additional remuneration for the establishment or modification of the rules of co-ownership following a decision of the syndicate and the publication of the descriptive state of division and the co-ownership regulations or modifications made to these acts.
- Administrative and material management services relating to claims: These include travel to the location where precautionary measures are taken, assistance with expert measures and follow-up of the file with the insurer.
- Services relating to works and technical studies, the list of which is set out in article 44 of the decree of March 17, 1967 taken for the application of the law of July 10, 1965.
- Services relating to disputes and litigation (excluding debt collection from co-owners): The decree aims here, the formal notice by registered letter acknowledgment of receipt, the constitution of the file sent to the lawyer, the bailiff, the legal protection insurer as well as the follow-up of the file sent to the lawyer.
Other services: This last category includes the diligences specifically related to the preparation of the decisions of acquisition or disposals of common parts, the resumption of the accounts on one or more previous years (s) not approved or not distributed (s) ), in the event of a change of syndic, the representation of the union at the meetings of an external structure (secondary union, union of unions, free trade union association) created during the term of office as well as at additional meetings of these same structures if they existed prior to the signing of the trustee contract. The decree also covers the constitution and monitoring of the loan file subscribed in the name of the syndicate, the constitution and monitoring of a grant file for the benefit of the syndicate and the initial registration of the syndicate.
JURISPRUDENCE
Effect of handing over the keys to the co-lessee
3rd Civil. February 18, 2015 (n°14-10.510) FS-PB:
The liquidator of a company, co-lessee of a lease, notified the lessor of the termination of the contract.
The lessor then assigned the sureties, including a co-lessee, for payment of the rent, judicial termination of the contract and eviction of the lessees. The Court of Appeal considered that the lease had been terminated with regard to the co-lessee, on the grounds that by letter dated March 26, 2009, the auctioneer, acting on the instructions of the liquidating agent, handed over the keys to the premises to the lessor who accepted them without reservation and that the return of the keys terminated the lease with regard to all the lessees. The Court of Cassation overturned the judgment. Indeed, according to the Court, unless otherwise stipulated by agreement, the handing over of the keys to the lessor by the auctioneer, acting on the instructions of the liquidator, manifesting the latter's sole desire to terminate the lease cannot suffice to terminate the contract at the end of the contract. towards the other copreneurs.
Address for service of a summons on a legal person
2nd Civil. February 19, 2015 (n°13-28.140) F-PB:
In this case, a lessor company issued to the lessee an order to pay relating to the termination clause.
The lessee then summons the lessor before the judge in chambers, who ordered the suspension of the termination clause. The lessor then appealed, raising the nullity of the document initiating proceedings. To pronounce the nullity of a summons, of all the acts following it and the nullity of an interim order, the Court of Appeal held that, for lack of having been able to serve the summons at the address of the registered office , the bailiff would have served the document at the domicile of the representative of the legal person.
The Court of Cassation holds that the address at which the bailiff made the service was that of the registered office. Consequently, the Court reverses the judgment on the grounds that the Court of Appeal violated Article 690 of the Code of Civil Procedure.
Alur Law: Application in time of the new payment period granted to the tenant
Opinion of the Court of Cassation February 16, 2015 (n°15.002):
Article 24 of the law of July 6, 1989, modified by the Alur law, sets at three years the maximum period of payment that can be granted to the tenant in a position to pay his rental debt and during which, the effects of the termination clause are suspended.
The question was put to the Court of Cassation as to whether this text was applicable to leases in progress when the ALUR law came into force, since this law includes an article 14 which defines a list of immediately applicable texts. among which article 24 does not appear
. According to the explanatory note of the opinion, the Court of Cassation considered that the faculty offered to the judge to grant a payment period was analyzed as a legal effect of the lease, if acting not from a device subject to the contractual freedom of the parties but from a power granted to the judge by law. The Court of Cassation thus considered that the modified article 24 of the law of July 6, 1989 applied to leases in progress on the date of entry into force of the ALUR law.
Authorization to cut branches overhanging a neighboring land
3rd Civil. March 3, 2015 (n°14-40.051) FS-PB:
The question was put to the Court of Cassation as to whether, Article 673 of the Civil Code, insofar as it authorizes the neighbor to compel the owner to cut the branches of the trees overhanging the neighboring land without the possibility for the owner of the tree to oppose any means of defence, infringes the rights and freedoms guaranteed, on the one hand, by the preamble, articles 1 to 4 and 6 of the Charter of the environment and, on the other hand, by Articles 2 and 17 of the Declaration of the Rights of Man and of the Citizen of 1789? As the question was not serious, the Court of Cassation refused to refer the question to the Constitutional Council.
Procedures for setting up an ASL
3rd Civil. February 18, 2015 (n°13-25.122) FS-PB:
In this case, a joint owner summoned for payment of unpaid charges raised the nullity of the general meeting constituting the free trade union association (ASL) and the nullity of the addendum to the specifications governing the extension of the subdivision to the reason that the unanimity of the owners was not met during the constitutive assembly.
The Court of Appeal and the Court of Cassation reject the arguments of this co-owner. In support of its decision, the Court of Cassation specifies that the consent of all the co-owners results from their commitment in the deed of acquisition to respect the clauses of the specifications which provides for the constitution of an ASL. According to the Court, it follows that the unanimous agreement of the co-owners is not required for the establishment of subsequent statutes.
Consequence of the cancellation of the order to pay equivalent to seizure of property
2nd Civil. February 19, 2015 (n°14-10.622) FS-PB:
On April 14, 2008, a bank issued an order to pay equivalent to foreclosure, then issued a summons.
While the adjudication of the seized real estate had taken place, an enforcement judge declared the order and all subsequent procedural acts null and void. On April 26, 2012, the bank issued a new order equivalent to foreclosure, which the debtors challenged before an enforcement judge, arguing that the bank's action was time-barred. To reject the plea of inadmissibility drawn from the prescription of the action of the bank against them and tending to the continuation of the public auction of property and real estate rights belonging to them, the Court of Appeal, held that the period was interrupted by the debtors' acknowledgment of the bank's right against them in their conclusions of November 3, 2009 and April 6, 2011 and, that it was interrupted by their conclusions of September 10, 2012. The Court of Cassation reverses the judgment because it considers that, the conclusions of November 3, 2009 and April 6, 2011 having been annulled, the recognition they contained could not have had the effect of interrupting the two-year limitation period of Article L. 137- 2 of the consumer code. Since the conclusions of September 10, 2012 were after the expiry of this period, the Court of Appeal violated Articles 2240 and 2241 of the Civil Code and Article L. 137-2 of the Consumer Code.
Majority applicable to decisions relating to the closing of the co-ownership
3rd Civil. February 18, 2015 (n° 13-25.974) FS-PBI:
A co-owner carrying out a medical activity has sued the syndicate of co-owners for annulment of the decision of the general meeting relating to the closure of the co-ownership by an automatic barrier and the permanent opening of pedestrian access to the co-ownership.
The question is posed to the Court of Cassation to know what is the majority rule applicable to such a decision.
The Court of Cassation first notes that under the terms of article 26 e of the law of July 10, 1965, now 26 c, decisions relating to the procedures for opening and closing buildings are adopted by a majority of the members. of the union representing at least two-thirds of the votes. The Court then notes that the co-owners had decided to close the co-ownership by an automatic barrier with opening control by transmitter for residents and by digicode for visitors and that under the agenda of the meeting In general, the co-owners had deliberated on the operating methods of the barrier and in particular on the closing times and decided that it would remain permanently closed. Consequently, this decision had to be voted by the qualified majority of article 26 of the law of July 10, 1965.
No subsidiary right of first refusal of the tenant during the bulk sale of a building
3rd Civil. March 11, 2015 (n°14-10.447) FS-PB:
In this case, the tenant of a dwelling, who had not followed up on the notice to sell issued by his lessor, requested the cancellation of the sale of the entire building which took place subsequently.
In support of his request, the tenant invokes the violation of his subsidiary right of pre-emption. The Court of Appeal confirmed by the Court of Cassation rejected this request on the grounds that the sale of the entire building did not give the right to exercise a right of pre-emption in favor of the tenant.
Application of article L.290-1 of the CCH to any promise to sell a building
3rd Civil. February 18, 2015 (n°14-14.416) FS-PBR:
A promise of sale with a validity period of more than 18 months was concluded by private deed.
Following a disagreement between the parties, the beneficiary of the promise summoned the seller to have the sale judged perfect. The court of appeal having pronounced the nullity of the promise of sale, the beneficiary of the promise lodged an appeal in cassation.
The Court of Cassation dismissed the appeal and recalled that Article L. 290-1 of the Construction and Housing Code (CCH) is applicable to any promise of sale whose purpose is the transfer of a building or a real estate right by an individual. In this case, the promise of sale, valid for more than 18 months, was therefore automatically subject to this text and therefore had to be recorded by notarial deed.
Conditions of entitlement to compensation for residents in the event of a change in traffic
CE February 11, 2015 (n°367342):
In the present case, the owner of commercial premises, which he rented to a car repair company, sought the municipality's liability for the damage resulting from work to improve the roads which had made access to its room more difficult for vehicles exceeding a certain size.
The Court of Appeal dismissed the claim for compensation on the grounds that the developments in question did not have the effect of preventing the applicant from having any access to the public highway. The Council of State recalls first of all that, in principle, the modifications made to general traffic and resulting either from changes made in the base, the direction or the development of public roads, or from the creation of new roads, are not such as to give rise to a right to compensation. However, in the event that these modifications have the effect of prohibiting or making it excessively difficult for local residents to access the public road, they give rise to a right to compensation. Consequently, the court, which rejected the application without considering whether the amendments had not had the effect of making this access excessively difficult and whether this did not result for the person concerned, in the circumstances of the case, serious and special prejudice, erred in law.
