Rent debts after opening judgment: not discharged by personal rehabilitation

Imagine the scene: in Bollène, in the Vaucluse, a landlord rents a flat to a tenant who, in the middle of an over-indebtedness procedure, stops paying his rent. The landlord wonders: will these unpaid rents, arising after the opening judgment, be discharged by the personal rehabilitation (a procedure that allows the cancellation of all debts of an over-indebted person)? The answer is no, and that is what the Court of Cassation ruled in a judgment of 6 June 2013.

This decision is crucial for any lessor (landlord who rents out a property) or tenant faced with an over-indebtedness procedure. It sets a simple rule: only debts prior to the opening judgment can be discharged. Unpaid rents after that date remain due. But what exactly does that change for you?

In this article, I will break down this decision, explain the judges' reasoning, and give you practical advice to avoid nasty surprises. Whether you are a landlord in Cavaillon or a tenant in Avignon, you will leave with keys to act.

The facts: a story like any other day

Mr. Y, owner of a property in Bollène, rents his property to a tenant, Mr. X. In January 2009, Mr. Y serves Mr. X with a notice to pay (official document requiring payment within a certain period) for arrears of rent due from October to December 2008. But in the meantime, Mr. X has been placed under a personal rehabilitation procedure (a measure for over-indebted persons, which can cancel debts) by an opening judgment. Mr. X then considers that his rent debt is discharged by this procedure. Mr. Y, for his part, considers that the unpaid rents after the opening judgment remain due. The dispute (disagreement brought before the court) is brought before the tribunal.

The tribunal rules in favour of Mr. X, considering that the debt is discharged. But Mr. Y appeals to the Court of Cassation (appeal to the Court of Cassation to contest the interpretation of the law). The Court of Cassation, in its judgment of 6 June 2013 (No. 12-19.155), quashes the judgment and reiterates the principle: debts arising after the opening judgment are not discharged. In short, Mr. X must pay the rents from October to December 2008, because these debts are subsequent to the opening judgment.

What few people know is that the personal rehabilitation procedure has a precise scope. It discharges debts prior to the opening judgment, but not those that arise after. This is logical: the procedure aims to give a fresh start, but it does not authorise non-payment of current charges.

The reasoning of the court — broken down

The Court of Cassation relies on Article L. 330-1 of the Consumer Code (now codified in Articles L. 711-1 et seq.), which defines the situation of over-indebtedness and the debts that can be discharged. According to this article, only the non-professional debts of the debtor (indebted person) prior to the opening of the procedure can be remitted. Debts arising after, such as rents, are not concerned.

But why this distinction? The legislator (the lawmaker) wanted personal rehabilitation to allow a fresh start, but without encouraging the creation of new debts. If all debts were discharged, creditors (persons to whom money is owed) would hesitate to provide services after the judgment, which would be counterproductive.

In this case, Mr. X argued that the rent debt was prior to the opening judgment. But the Court checked the dates: the notice to pay was served after the judgment, and the unpaid rents covered a subsequent period. Therefore they are subsequent. In other words, the judge applied a common sense rule: you cannot use the procedure to escape your current obligations.

This decision is not a reversal (change in case law): it confirms a consistent position. The Court of Cassation has already ruled in the same sense in a judgment of 13 May 2009 (No. 08-13.845). The trend is therefore clear: subsequent debts survive personal rehabilitation.

What this changes for you — concretely

For landlord lessors: if your tenant is in an over-indebtedness procedure, you can continue to claim unpaid rents after the opening judgment. Do not let yourself be told that everything is discharged. For example, if your tenant in Cavaillon stops paying in March 2024 and the opening judgment dates from February 2024, the March rents are due. You can start an eviction procedure (eviction of the tenant) for non-payment.

For tenants: do not believe that personal rehabilitation exempts you from paying your rents after the judgment. You must continue to pay, on pain of eviction. If you are in this situation, you must inform your landlord of your procedure, but also plan a budget for future rents.

For buyers or co-owners: if you buy a property occupied by an over-indebted tenant, check the dates. Rent debts after the opening judgment remain due, which may affect the value of the property. undefined, I have come across cases where buyers had to assume unpaid sums because the seller had not been vigilant.

In figures: if the rent is €500 per month and the tenant does not pay for 6 months after the judgment, the debt amounts to €3,000. This sum is not discharged.

Four tips to avoid this type of dispute

• Check the date of the opening judgment: as soon as you become aware of an over-indebtedness procedure, ask for the exact date of the opening judgment. This will allow you to distinguish prior debts (discharged) from subsequent ones (due).
• Issue a notice to pay promptly: at the first non-payment, serve a notice to pay. This formalises the debt and allows proof of its date. If the notice is subsequent to the judgment, the debt is presumed subsequent.
• Keep all evidence: rent receipts, bank statements, letters. In case of dispute, you must demonstrate that the unpaid rents are subsequent to the judgment. Without proof, you risk losing.
• Consult a lawyer lawyer: the law of over-indebtedness is complex. A lawyer will help you build your case and draft documents. In Bollène or Cavaillon, do not hesitate to make an appointment.

Further reading: related case law and developments

This decision is part of consistent case law. For example, the Court of Cassation ruled in a judgment of 13 May 2009 (No. 08-13.845) that debts arising after the opening of a personal rehabilitation procedure are not discharged. Similarly, in a judgment of 17 March 2010 (No. 09-11.456), it specified that only prior debts can be remitted.

The trend of the courts is therefore protective for creditors of subsequent debts. However, a recent development concerns the extension of the scope of dischargeable debts: the law of 22 December 2021 included certain tax debts. But this does not change anything for subsequent rents. For the future, it is likely that the Court will maintain this distinction, as it is fundamental to the balance of the procedure.

Summary and next steps

FAQ:

Can I claim unpaid rents after the opening judgment? Yes, they are not discharged by personal rehabilitation.

What if my tenant claims his debt is discharged? Ask for the date of the opening judgment and prove that the rents are subsequent. If the tenant persists, refer the matter to the judge.

What are the time limits for action? You have 3 years from each unpaid due date to bring a claim for payment. Do not delay.

Does personal rehabilitation discharge prior rent debts? Yes, unpaid rents before the opening judgment are discharged.

Should I inform the tenant of his obligations? Yes, by registered letter, to avoid any challenge.

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 →