Lease with Two Tenants without Joint and Several Liability: The Landlord Must Divide His Claim

Imagine: you own a commercial premises in Allauch, and you sign a lease with two partners, without a joint and several liability clause. One of them stops paying his half of the rent. Can you claim the full amount from the other? The answer is no, according to the Court of Cassation in a judgment of 30 October 2013. This decision, often overlooked, changes the situation for many landlords.

For the trap is common: one believes that the mere status of co-tenant is enough to make each liable for the whole. But the law is demanding: without an express joint and several liability clause, the rent debt is divisible. Each tenant owes only his share, except if one gives notice — then the other becomes sole debtor for the full amount. A subtle nuance that can cost dearly in case of non-payment.

So, how to navigate this? And above all, how to protect your interests when you let to several persons? That is what we will see, through the analysis of this judgment and practical advice, whether you are in Martigues or elsewhere.

The facts: a story like many that happen every day

A civil real estate company (SCI) grants a lease of premises for professional use to two persons, whom we will call Mr A and Mr B. The contract is signed by both, but no clause specifies that they are jointly and severally liable for payment of the rents. In other words, they are simply 'co-tenants', each responsible for his share.

Very quickly, arrears appear. The landlord then claims from Mr A the total amount of rents due, without distinguishing Mr B's share. Mr A contests: according to him, he owes only half. The case goes before the Bordeaux tribunal, then before the Court of Appeal, which finds in favour of the landlord: since the premises are indivisible (they cannot be divided into two), the rent debt would also be indivisible, and each tenant should owe the whole.

But Mr A appeals to the Court of Cassation. The Court of Cassation quashes the appeal judgment: it reminds that the indivisibility of the premises does not automatically entail the indivisibility of the rent debt. Without a joint and several liability clause, each co-tenant owes only his share. The landlord should have divided his claim and demanded half of the arrears from each.

A twist: at the same time, Mr B gives notice. The question then arises whether the lease continues with Mr A alone. The Court of Cassation, in a second judgment of the same day (appeal no. 12-21.973), answers yes: the lease continues with the remaining tenant, who must then pay the full rent for the entire premises, since he retains exclusive enjoyment.

The reasoning of the court — dissected

The legal basis is Article 1202 of the Civil Code (old, now Articles 1310 et seq.) which lays down the principle: joint and several liability is not presumed, it must be expressly stipulated. In matters of lease, this means that for each tenant to be liable for the full rent, a clear clause is required. Failing that, the debt is divisible: each co-tenant owes only his share, proportionate to his undertaking.

The Court of Appeal had nevertheless considered that the nature of the premises (indivisible) entailed the indivisibility of the debt. But the Court of Cassation corrects this: the object of the lease (the premises) is indeed indivisible, but the obligation to pay the rent is an obligation to pay a sum of money, divisible by nature. Each month, the rent is a sum due for the enjoyment of the premises; if nothing is said, each tenant owes half.

This judgment confirms constant case law: joint and several liability is never presumed. This is neither an evolution nor a reversal, but a useful reminder. In practice, lower courts sometimes still apply the rule of indivisibility of the debt, hence the importance of knowing this decision.

The arguments of the parties were classic: the landlord invoked the unity of the premises and the fact that the two tenants had signed together; the tenant pleaded the absence of a joint and several liability clause. The Court decided in favour of the letter of the contract: without a written clause, no joint and several liability.

What this means for you — concretely

For the landlord owner: if you let to two persons without a joint and several liability clause, you can only claim from each his share. Example: rent of €1,200 per month, arrears of 3 months = €3,600. You can only demand from Mr A €1,800 (his half), and from Mr B €1,800. If one is insolvent, you lose his share. In Martigues, a landlord lost €4,500 because one of the two co-tenants had left the region without leaving an address. Moral: always require a joint and several liability clause in the lease.

For the tenant: if you sign a lease with a friend or associate without a joint and several liability clause, you are not responsible for the other's arrears. Your liability is limited to your share. But beware: if the other gives notice, you become the sole tenant and must pay the full rent, even if you only occupy half of the premises.

For the purchaser of a leased property: check the existing lease. If the lease does not contain a joint and several liability clause, the risk of arrears is higher, because the landlord cannot turn against a solvent co-tenant for the other's share.

For the co-owner landlord: if the co-ownership grants a lease of a common part (e.g., roof for an antenna), the syndic must ensure that the contract provides for joint and several liability between the co-tenants, otherwise each co-owner would only be liable for his share.

Four tips to avoid this type of dispute

• Insert a joint and several liability clause in the lease: write in black and white that 'the tenants are jointly and severally liable for payment of rents and charges'. Without this, you can only claim the whole from each for his share.
• In case of arrears, act quickly: from the first month of delay, put all co-tenants on formal notice. If one pays his share and the other does not, you can take action against the defaulting tenant, but not against the solvent one for the other's share.
• Provide a departure clause: stipulate that if a tenant gives notice, the lease continues with the remaining tenant(s), who become sole debtors of the full rent. This avoids disputes.
• Require a joint and several surety: ask each tenant to provide a joint and several guarantor for his share, or even for the whole if the joint and several liability clause is absent. This gives you double security.

Further reading: related case law and developments

The position of the Court of Cassation is constant: since a judgment of 12 May 2004 (no. 02-13.045), it has held that the absence of a joint and several liability clause between co-tenants divides the debt. Similarly, a judgment of 10 September 2015 (no. 14-16.798) specifies that joint and several liability cannot result from a simple mention in a surety deed; it must appear in the lease itself.

However, the Second Civil Chamber admitted in a decision of 17 March 2016 (no. 14-29.445) that joint and several liability could be tacit if the tenants present themselves as 'indivisible' in the contract. But this solution is rare and not recommended: an express clause is better.

The trend of the courts is therefore to protect non-jointly and severally liable co-tenants, unless the landlord has taken care to draft a clear clause. For the future, the ALUR law has strengthened information for tenants, but has not modified the law on joint and several liability. Remain vigilant.

What you absolutely must remember

FAQ:

• Can I claim the full rent from only one of the two co-tenants? No, unless there is a joint and several liability clause in the lease. Without it, you can only demand his share.
• What if one of the co-tenants does not pay his share? You must take action against him alone. You cannot turn against the other for his share, unless you have a joint and several liability clause.
• If a co-tenant gives notice, does the lease continue? Yes, with the remaining tenant(s). The remaining tenant must then pay the full rent.
• How to secure a lease with several tenants? Add a joint and several liability clause and, if possible, a joint and several surety for each tenant.
• What are the time limits for action on arrears? You have 5 years from each unpaid instalment (general limitation period). But act quickly to avoid aggravation of the debt.

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 →