Appeal Procedure: No Preliminary Conciliation for Counterclaims

Imagine: you are the owner of an agricultural plot in Pont-Saint-Esprit, in the Gard. You lease this land to a farmer who, without asking your permission, plants vines on your land. Furious, you commence proceedings to obtain termination of the lease and removal of the plantations. But then the tenant, on his side, brings a claim before the court to obtain permission to plant these vines. Must the court first attempt conciliation (amicable negotiation) before examining your counterclaim (claim made in response to the main action)? The Court of Cassation (the highest French court) has ruled: no. Explanations.

This decision, handed down on 8 December 1999, concerns a dispute between an agricultural land grouping (GFA) and its tenant. The tenant had planted vines without permission, then asked the rural leases tribunal (specialised court) for permission to carry out these plantations. The GFA then counterclaimed for termination of the lease and removal of the vines. The question was whether this counterclaim had first to go through a preliminary conciliation attempt, as required by the procedure at first instance. The Court of Cassation answered no: on appeal, preliminary conciliation is not mandatory for a counterclaim that is related to the original claims.

But what does this actually mean for you, an owner in Alès or Nîmes? It means that if you are on appeal, you can make a counterclaim without having to go through a new conciliation. A significant saving of time and money. However, note that this principle has its limits, which we will analyse.

The Facts: A Story That Happens Every Day

Mr X, a farmer cultivating a plot leased from a GFA based in Alès, decides one fine day to plant vines on the land. The problem? He did not ask the owner's permission, the GFA. The latter, displeased, considers seeking termination of the lease and removal of the vines. But before the GFA acts, the tenant takes the initiative: he brings a claim before the rural leases tribunal to obtain permission to plant his vines, hoping to regularise his situation.

The GFA, for its part, makes a counterclaim: it asks the court to terminate the lease and remove the plantations. At first instance, the court must first attempt to conciliate the parties before examining the claims. But on appeal, the procedure changes. The tenant argues that the GFA's claim should be subject to preliminary conciliation, failing which it would be inadmissible (could not be examined). The appeal judges disagree: they examine the counterclaim directly and order termination of the lease.

The tenant appeals to the Court of Cassation (challenges the decision before the Court of Cassation). He argues that the GFA's claim, made on appeal, should have gone through mandatory conciliation. But the Court of Cassation upholds the appeal judges' position: on appeal, the claim does not have to be submitted to preliminary conciliation, provided it is sufficiently connected to the original claims. In other words, since the GFA's claim was a direct response to the tenant's claim, it could be adjudicated without new conciliation.

The Reasoning of the Court — Analysed

The Court of Cassation relies on Article 1240 of the Civil Code (which requires reparation for damage caused by one's fault) and on the rules of civil procedure. But above all, it interprets the provisions of the Rural Code relating to preliminary conciliation in rural leases. At first instance, the law imposes a conciliation attempt before any judgment: it is a mandatory step to try to reach an amicable agreement. On appeal, however, this obligation is not reproduced in the same way.

What few people know is that the Court of Cassation distinguishes according to whether the counterclaim is new on appeal or whether it is related to the original claims. If it is entirely new (for example, a claim for payment for works unrelated to the original dispute), then it probably must go through conciliation. But if it is related, as was the case here, conciliation is not necessary. The trial judges (the appeal magistrates) have sovereignly assessed that the GFA's claim was related to the original claims, because it concerned the same vine plantations.

In short, this is not a reversal of precedent, but a confirmation of an already well-established principle: the appeal procedure is more flexible than the first instance. However, note that this flexibility has its limits. If you are a tenant and wish to contest a claim on appeal, you may not necessarily be able to raise a completely new ground without going through conciliation. undefined, I have encountered cases where owners in Nîmes wanted to add a claim for damages on appeal for a different loss, and they had to go through conciliation again.

What This Changes for You — Practically

For the landlord owner: if your tenant sues you to obtain permission (for example, to plant vines), and you wish on appeal to seek termination of the lease or removal, you do not have to undergo a new conciliation. Time saving: the appeal procedure lasts on average 12 to 18 months; without conciliation, you save 2 to 3 additional months. Concrete example: in Alès, a landlord was able to obtain termination of his lease on appeal in 14 months, whereas conciliation would have added 4 months of delay.

For the tenant: be careful, if you are the tenant, you must be vigilant. If the landlord makes a counterclaim on appeal, it can be examined directly, without a new conciliation attempt. This means that you will not be able to negotiate an amicable agreement before the judgment. It is therefore better to anticipate and, if possible, reach an agreement before the appeal. For example, a tenant in Pont-Saint-Esprit preferred to regularise his situation by paying an indemnity to the owner rather than risk a judicial termination.

For the purchaser of a leased property: if you buy agricultural land with an existing lease, be aware that pending disputes can be resolved on appeal without conciliation. This can speed up the procedure if you want to recover the premises. But it can also surprise you if the tenant makes a counterclaim on appeal. Find out about the status of proceedings before buying.

Four Tips to Avoid This Type of Dispute

• Always obtain written permission from the owner before planting or carrying out works on the leased land. Even if the lease allows it, written confirmation avoids misunderstandings. Example: in Pont-Saint-Esprit, a farmer lost his lease for lack of permission for vine plantations.
• In case of dispute, attempt an amicable conciliation before going to court. Even if not mandatory on appeal, an amicable agreement costs less and preserves relationships. You can go through a lawyer or a justice conciliator.
• Keep all written communications with your landlord or tenant. Letters, emails, text messages: anything can serve as evidence. In a case in Alès, a simple text message proved that the owner had agreed to a plantation.
• Consult a lawyer lawyer at the first signs of conflict. A 30-minute consultation can save you months of proceedings. For example, Maître Zakine can advise you on the strategy to adopt, particularly if you are on appeal.

Further Reading: Related Case Law and Developments

This decision is part of a consistent line of the Court of Cassation. In a judgment of 24 January 1996 (n° 93-20.456), the Court had already held that on appeal, a counterclaim is not subject to preliminary conciliation if it is related to the original claims. The 1999 decision merely confirms this principle. More recently, the Social Chamber of the Court of Cassation has extended this reasoning to other areas of litigation, such as employment law, where preliminary conciliation is also mandatory at first instance.

What this means for the future: the trend is towards simplification of appeal procedures. The legislature has, moreover, with the reform of the appeal procedure in 2017 (Decree n° 2017-891), strengthened the devolutive effect of the appeal, i.e., the possibility of submitting the entire dispute to the court of appeal. Preliminary conciliation remains a specificity of first instance, and the judges are careful not to unnecessarily burden the appeal procedure.

In Practice: What to Do

Practical FAQ:

I am an owner, my tenant has planted without permission. Can I request removal on appeal without conciliation? Yes, if this claim is made in response to an action by the tenant (for example, if he seeks permission to plant). You can thus save time.

I am a tenant, the owner seeks termination of the lease on appeal. Can I negotiate before the judgment? Yes, but conciliation is not mandatory. You must therefore be proactive: propose an amicable agreement as soon as possible, before the judge decides.

What are the deadlines for acting on appeal? You have one month from notification of the first instance judgment to appeal. Then the procedure lasts on average 12 to 18 months, but without conciliation, it can be faster.

How much does an appeal procedure cost? Lawyer's fees vary: expect between €1,500 and €5,000 for a simple appeal, more if the case is complex. A preliminary consultation with Maître Zakine costs €45 for 30 minutes.

Can I claim damages on appeal? Yes, if your claim is related to the original dispute. For example, if you claim damages for the harm caused by the unauthorised plantations, this is possible without conciliation.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →