Lease to Two Tenants Without Solidarity: The Lessor Must Divide Their Action for Rent Payment

Imagine: you own a commercial property in Aubagne, near Marseille. You sign a lease with two partners, without thinking to include a joint and several liability clause. One of them stops paying their share. To whom do you claim the rent? Must the other bear it all alone? This question, more common than you might think, was put to the Court of Cassation in 2013. The answer is surprising.

Many landlords think that as long as two names are on the lease, they can demand full payment from either one. But the law is more nuanced: without an express joint and several liability clause, each tenant owes only their share. However, if one gives notice, the situation changes radically. The decision of 30 October 2013 (No. 12-21.973) clarifies these two distinct situations. Let's break it down.

For a landlord in Salon-de-Provence or elsewhere, this decision is a crucial reminder: a well-drafted lease equals security. One oversight, and you could end up receiving only half the rent while having to cover the charges alone. So, how to avoid the trap? Follow the guide.

The Facts: A Story That Happens Every Day

SCI Hydrangea, owner of a professional premises in Colmar, leases it to its two associates, Mesdames X and Y. The contract is duly signed, but no clause provides that the tenants are jointly and severally liable for the rent. In other words, each is theoretically obliged to pay half, but nothing says that SCI can claim the whole from either.

A few years later, Madame X gives notice. SCI continues the lease with Madame Y alone, but she considers that, since she is only half in the premises—or rather, that the lease is terminated as to half—she owes only half the rent. SCI, on the other hand, considers that Madame Y, as the sole remaining tenant, must pay the full rent. Total disagreement.

SCI Hydrangea takes the matter to court, which rules in its favour at first instance. Madame Y appeals. The Colmar Court of Appeal, on 7 May 2012, reverses the judgment: it holds that, for lack of joint and several liability, Madame Y owes only half the rent. SCI appeals to the Court of Cassation. In its judgment of 30 October 2013, the Court of Cassation quashes the appellate decision: it holds that when a single tenant gives notice, the lease continues with the other for the entire premises, and the latter must pay the full rent. A complete reversal? Not exactly: the Court distinguishes between two situations.

The Court's Reasoning — Explained

The Court of Cassation relies on the general law of obligations (Articles 1197 et seq. of the Civil Code, dealing with joint and several or divisible obligations). It recalls that a rent debt is not, by itself, indivisible. Each tenant owes only their contractual share, absent an express joint and several liability clause. Without such a clause, the lessor cannot pursue one for the whole.

But there is a catch. When one of the tenants gives notice, the lease does not automatically split into two separate leases. The original contract continues with the remaining tenant, who retains enjoyment of the entire premises. Now, rent is the consideration for that enjoyment. Therefore, it is logical that this tenant should owe the full rent. The Court states: "in consideration of the enjoyment of the premises, to pay the entire rent".

The lower court judges (Colmar) had thought that the absence of joint and several liability prevented any claim for the other's share. The Court of Cassation corrects them: joint and several liability and the continuation of the lease are two different things. The former concerns payment during the lease, the latter the situation after a notice. This is a confirmation of previous case law (Civ. 3e, 24 May 2006, No. 05-12.154): notice by one tenant does not terminate the lease; it continues with the other.

This decision is therefore consistent: it protects the landlord against the risk that the remaining tenant pays only half, while reminding that, as long as both are in place, the landlord must act against each for their share. A balanced solution.

What This Means for You — Practically

If you are a landlord in Aubagne or elsewhere, remember this: as long as both tenants are in place, you cannot demand the full rent from one alone, unless there is a joint and several liability clause. Concretely, if the rent is €1,200 per month and Madame Y does not pay her half, you can only claim €600 from Madame X, not €1,200. For the missing €600, you must take action against Madame Y.

On the other hand, if Madame X gives notice, Madame Y becomes sole debtor for the entire rent. Example in Salon-de-Provence: monthly rent of €1,500, Mr A gives notice. Mr B must now pay €1,500 per month, not €750. The Court of Cassation confirms this. This is good news for landlords, as it avoids a division of rent after a tenant's departure.

For tenants, beware: if you are the only one remaining, you must bear the rent alone, even if you think the other should have paid their share. You can then seek recourse against the former co-tenant for reimbursement, but this does not relieve you from paying the landlord. A trap to be aware of.

Four Tips to Avoid This Kind of Dispute

• Include a joint and several liability clause in the lease: at the time of signing, provide that each tenant is jointly and severally liable for the rent. Thus, you can claim the whole from either, regardless of who is in default.
• Include a clause waiving unilateral notice: or, failing that, stipulate that notice by one tenant triggers termination of the lease for all, unless the landlord agrees otherwise. This prevents the remaining tenant from having to pay alone.
• Require a joint and several surety: even without joint and several liability between tenants, a personal guarantee can secure full payment. Have a separate guarantee deed signed.
• Sign an addendum upon a tenant's departure: if one gives notice, sign an addendum with the remaining tenant confirming that they assume the rent alone. This avoids any later dispute.

Further Details: Related Case Law and Developments

This decision follows a consistent line from the Court of Cassation. Already in 2006 (Civ. 3e, 24 May 2006, No. 05-12.154), it had held that notice by one tenant does not end the lease, which continues with the other. The 2013 judgment merely clarifies the fate of the rent.

However, the issue of joint and several liability during the lease is strictly interpreted: it is not presumed. Courts require a clear and unambiguous clause. If the lease states "the tenants jointly and severally undertake", it is valid. But a simple mention of "jointly" is not enough (Civ. 3e, 17 June 2009, No. 08-13.329).

The trend is therefore to protect the landlord after notice, but to be strict in the absence of joint and several liability. No legislative change is on the horizon, but notarial practice now systematically recommends inserting a joint and several liability clause in leases with multiple tenants.

In Practice: What to Do

FAQ:

• My co-tenant is not paying their share, what should I do? You must first pay your share to the landlord. Then, you can sue your co-tenant for reimbursement before the tribunal judiciaire. Without a joint and several liability clause, the landlord can only claim your half from you.
• Can the landlord claim the full rent from me if my co-tenant has left? Yes, since the 2013 ruling, if notice has been given, you owe the entire rent. Check that the notice was properly given to the landlord.
• What are the time limits for action? For unpaid rent, the limitation period is 5 years (Article 2224 of the Civil Code). For recourse between co-tenants, the same period runs from the date of payment.
• Can I include a joint and several liability clause after signing the lease? Yes, by addendum signed by both parties. This is even advisable if you are a landlord and the initial lease does not include it.
• What if the lease is oral? An oral lease is valid but risky. You must prove its existence and terms. Without a written document, joint and several liability is even harder to establish. Get a written contract formalised.

In summary: if you are in litigation, first check whether a joint and several liability clause exists. If so, you can pursue one tenant for the whole. If not, take action against each for their share. And if a tenant has left, the remaining tenant must pay alone. This decision clarifies the rules of the game.

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