Partial Notice to Quit to Sell: Only the Tenant Can Invoke Nullity

Imagine: you are a tenant of a house with a garden in Mont-de-Marsan. Your landlord serves you notice to quit to sell, but the offer to sell only concerns the house, not the garden. What do you do? And if the landlord realises their mistake, can they go back?

This seemingly technical question has very concrete consequences for the thousands of residential leases concluded each year in the Landes. The Court of Cassation answered it in a judgment of 18 February 2009, which limits the possibilities of challenging a partial notice to quit to sell.

But what exactly did it decide? And above all, how can you protect yourself if you are a landlord or tenant? Analysis.

The facts: a story that happens every day

Mr X, a landlord in Dax, gives notice to his tenant, Mrs Y, to quit to sell the dwelling. The offer to sell describes a flat with a garden. The problem: the land is actually divided into two plots, and the plot sold does not include the garden. The tenant, who wishes to stay, challenges the validity of the notice before the tribunal d'instance of Mont-de-Marsan. She is successful: the notice is annulled because the offer to sell does not cover the entirety of the leased premises.

The landlord appeals, but the Pau Court of Appeal affirms the decision. He then appeals to the Court of Cassation, raising an unexpected ground: according to him, the nullity of the notice for partial sale can only be invoked by the tenant, not by the judge of his own motion. And since the tenant had not raised this ground, the notice would be valid.

Note: this was not the argument he had advanced before the lower courts. But the Court of Cassation examines the legal question: who can rely on the nullity of a notice to quit to sell that only covers part of the premises?

The reasoning of the court — dissected

The Court of Cassation quashes the appellate decision. It holds that the nullity of the notice to quit to sell arising from the fact that the offer to sell only covers part of the leased premises is a relative nullity, which can only be raised by the tenant. In this case, the tenant had not invoked this ground before the lower courts; therefore, the judges could not raise this defect of their own motion.

In short, the Court distinguishes two types of nullities: absolute nullities (which can be invoked by any interested person, or even by the judge) and relative nullities (reserved for the person protected by the rule violated). Here, the obligation to offer for sale the entirety of the leased premises is a rule protecting the tenant: it is only the tenant who can rely on it.

But note: this does not mean that the partial notice is valid. If the tenant challenges it, it will be annulled. But if the tenant does not do so, the landlord cannot turn around and rely on his own notice to have the sale annulled.

What few people know is that this decision is part of a consistent line of case law: the protection of the tenant is a matter of public policy, but its exercise is left to the tenant's initiative. In other words, the tenant is the sole master of his rights.

undefined, I have encountered cases where landlords, after giving notice to quit to sell a property without the garden, have tried to have the sale annulled by invoking their own mistake. The judges' answer is always the same: you cannot rely on your own turpitude (fault).

What this means for you — concretely

For the tenant: you are the only one who can challenge a partial notice to quit to sell. If you receive an offer to sell that does not correspond to the leased premises (for example, a house without the garage or garden), you should act quickly. The time limit to challenge a notice is two months from its notification. After this period, you risk losing your right to challenge.

For the landlord: you cannot rely on your own mistake. If you have given notice to quit to sell a divided property, you cannot hope that the judge will annul the notice at your request. On the other hand, if the tenant does not challenge, the sale can proceed, but beware: the purchaser could then turn against you for failure to deliver conforming goods (Article 1604 of the Civil Code).

Concrete example: in Mont-de-Marsan, a town house with garden sells for around €250,000. If the notice only covers the house (without the garden), the purchaser could claim a price reduction of 10 to 20%, i.e., €25,000 to €50,000 less. It is therefore better to draft the notice carefully.

Four tips to avoid this type of dispute

• Before giving notice, make an accurate inventory of the leased premises. If the property is divided (house + garden, flat + cellar), ensure that the offer to sell covers the whole. A surveyor can help you delimit the plots.
• Draft the notice carefully. Mention all the rented elements (area, rooms, outbuildings). Avoid vague expressions like "the dwelling".
• If you are a tenant and receive a partial notice, react quickly. Consult a solicitor within two months. You can challenge by registered letter with acknowledgement of receipt, then apply to the judicial court.
• If in doubt, call a professional. A preliminary 30-minute consultation (€45) can save you months of proceedings and thousands of euros in damages.

Further reading: related case law and developments

This decision is part of a consistent line of case law. As early as 2004 (Civ. 3e, 17 March 2004, No. 02-18.544), the Court of Cassation held that the nullity of a notice to quit to sell for failure to mention the price can only be invoked by the tenant. More recently, it extended this principle to other formal defects (Civ. 3e, 6 July 2017, No. 16-19.575).

The trend is clear: judges want to make the tenant responsible for defending his rights. But they do not tolerate the landlord relying on his own fault to annul a notice. This is an application of the principle "Nemo auditur propriam turpitudinem allegans" (no one can rely on their own turpitude).

For the future, it is likely that the Court of Cassation will continue along this path. Landlords must therefore be particularly vigilant when drafting notices.

What you absolutely must remember

Practical FAQ:

• Can I challenge a notice to quit to sell that only covers half of my dwelling? Yes, if you are the tenant. It is even your only recourse.
• Can the landlord annul his own partial notice? No, he cannot rely on his own mistake.
• What should I do if I receive a partial notice? Consult a solicitor within two months to challenge it.
• What is the risk for the landlord? If the tenant does not challenge, the sale can proceed, but the purchaser may claim a price reduction for failure to deliver conforming goods.
• Must I necessarily sell the entirety of the leased premises? Yes, unless the tenant accepts a partial sale by amendment to the lease.

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 →