Notice for breach of obligation: when a defect, even if remedied, justifies eviction

Imagine: you are the owner of an apartment in Amiens, rue de la République. You have been renting to a tenant for five years. Everything is going well until the day he stops paying rent for three months. You serve a formal notice (official demand for payment), he immediately pays. But the damage is done: trust is broken. Can you nevertheless give him notice (terminate the lease) for this past breach?

This is precisely the question the Court of Cassation decided on 17 May 2006. And its answer is clear: yes, a legitimate and serious ground for notice may be based on a contractual breach, even if it has ceased at the time the notice is given. A decision that reassures landlords, but should encourage tenants to be extremely diligent.

In this article, I explain the facts of the case, the reasoning of the judges, and what this changes concretely for you, whether you are a landlord or tenant in Picardy or elsewhere.

The facts: a story like many that happen every day

Mr Y... is the tenant of a dwelling belonging to a landlady (owner). The lease is subject to the law of 1 September 1948, a protective regime for long-standing tenants. During the tenancy, Mr Y... fails to fulfil one of his contractual obligations (e.g., failure to maintain, nuisance, or non-payment – the judgment does not specify the exact nature, but the principle is general). The landlady then serves him a notice (termination of lease) for a legitimate and serious ground.

Mr Y... challenges this notice in court. He argues that the breach had ceased at the time the notice was served on him. According to him, the ground should be assessed at the date of notification of the notice, and since there was no longer any breach at that date, the notice was abusive. He sues the landlady to obtain annulment of the notice and renewal of his lease.

The Court of Appeal of Amiens (yes, this case was judged in your region!) rules in favour of the landlady and upholds the notice, ordering the eviction of Mr Y... He appeals to the Court of Cassation. He argues that the legitimate and serious ground must be assessed at the date of the notice, and that a past and remedied breach can no longer justify a notice. The Court of Cassation dismisses his appeal: it approves the Court of Appeal for having sovereignly considered that the breach, even if prior, constituted a legitimate and serious ground.

The reasoning of the court — dissected

The heart of the dispute concerns the interpretation of Article 1728 of the Civil Code, which lists the main obligations of the tenant: to use the rented property reasonably, to pay the rent at the agreed times, and to maintain the dwelling. But also Article 1741 of the same Code, which provides that the lease (bail) may be terminated by either party for breach of obligations.

The Court of Cassation recalls a fundamental principle: "The tenant's breach of one of his obligations may constitute a legitimate and serious ground for notice, to be assessed sovereignly by the trial judges, even if it has ceased at the date of service of that notice." In other words, what matters is not the fact that the tenant has remedied the breach, but the reality of the fault and its seriousness. The trial judges (the Court of Appeal) have sovereign power to assess whether this fault, even if remedied, justifies terminating the lease.

The Court of Appeal of Amiens was therefore able to consider that Mr Y...'s past conduct was sufficiently serious to break trust between the parties, without having to verify whether the breach persisted at the time of the notice. The Court of Cassation does not review this assessment: it only checks that the judges did not distort the facts or violate the law.

This position is consistent in case law. It confirms that the landlord does not have to wait for the tenant to repeat the breach before acting. A single breach, even old and remedied, may justify a notice, provided it is established and considered serious.

What this changes for you — concretely

For landlord owners: you can now give notice to a tenant who has committed a fault, even if he has corrected it. However, the ground must be real and serious. A simple late payment of a few days, immediately remedied, will not suffice if the judge considers that seriousness is lacking. On the other hand, a failure to maintain that caused damage, or repeated nuisance, even if ceased, may justify a notice. Be sure to keep written evidence (formal notices, bailiff's reports, witness statements). Example: in Montdidier, a landlord was able to obtain eviction of a tenant who had stored waste in the garden for six months, even after removing it, because the disturbance had been serious and prolonged.

For tenants: be irreproachable. A single mistake, even corrected, may cost you your home. If you have had an unpaid amount, even if settled, your landlord may use it to not renew the lease. If you are in proceedings, do not just prove that you have ceased the breach: you must demonstrate that the fault was not serious or was justified. For example, a tenant who sublet without authorisation but stopped before the notice may still be evicted if the judge considers the subletting a serious ground.

For property professionals: this decision supports you in drafting notices based on past breaches. Ensure you properly document the chronology and nature of the breach, and do not rely on grounds that are too old or too minor. The judge has sovereign discretion, but a ground that is too light could be reclassified as an abuse of right.

Four tips to avoid this type of dispute

• For the landlord: at the first breach, send a written formal notice (registered letter with acknowledgment of receipt) detailing the nature of the breach and giving a deadline to remedy. Keep a copy. This will constitute solid evidence in the event of a later notice.
• For the tenant: if you make a mistake (late rent, failure to maintain), remedy it immediately and in writing. Ask the landlord for an acknowledgment of receipt of your remedy. In case of a notice, you can at least demonstrate your good faith, even if case law is unfavourable to you.
• For both parties: check the legal regime of the lease. Under the 1948 law (as in the Y... case), grounds for notice are stricter. For standard residential leases (law of 6 July 1989), notice for a legitimate and serious ground follows specific rules. Consult a lawyer before acting.
• For the purchaser of a rented property: if you buy a property with a sitting tenant, ask the seller for the history of breaches. A notice based on a fault prior to the sale may be served by the new owner, provided it is notified within the legal time limits.

Further reading: related case law and developments

The Court of Cassation had already established this principle in a judgment of 14 May 1991 (No. 89-19.227), where it held that a legitimate and serious ground for notice could result from a contractual breach, even if it had ceased. The 2006 judgment therefore only confirms a consistent line. However, the court clarified in a judgment of 4 February 2009 (No. 07-21.357) that the ground must exist at the date of service of the notice, but the assessment of its legitimacy may take into account prior facts. In other words, must the breach be real at the time of the notice? No, the 2006 judgment says the opposite: the breach may have ceased, but its past existence suffices. These decisions are apparently contradictory, but in reality, the court distinguishes the generating event (the breach) from its persistence. The breach must have existed, but it does not need to be ongoing.

The trend of the courts is therefore to protect the landlord's right to terminate the lease in case of serious fault, while requiring that the fault be established and serious. In the future, it is possible that judges will be more demanding on proportionality: a simple late payment of a few days will not justify a notice if the tenant is in good faith. But for characterised faults (nuisance, failure to maintain, illegal subletting), case law remains firm.

Summary and next steps

FAQ: 4 practical questions

• Can I give notice to my tenant for an unpaid amount he has settled? Yes, if the judge considers that the unpaid amount, even if settled, constitutes a legitimate and serious ground. This depends on its duration and amount. An unpaid amount of 3 months is generally considered serious.
• What should I do if my landlord gives me notice for a failure to maintain that I have repaired? You can challenge the notice in court, but you will have to prove that the defect was minor or justified. Case law is unfavourable to you: it is better to negotiate an amicable agreement.
• What are the deadlines for challenging a notice? You have two months from the notification of the notice to bring the matter before the tribunal judiciaire. After this deadline, the notice is final.
• How much does such a procedure cost? Lawyer's fees vary from €1,500 to €5,000 depending on complexity. A preliminary 30-minute consultation (€45 with Maître Zakine) can clarify your chances.

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