Right to the lease of the surviving spouse: the possibility of renouncing exclusivity

Imagine: in Vallauris, a retired couple has been renting an apartment in a quiet residence for twenty years. The husband dies suddenly. The wife, alone on the lease, wonders whether she should stay or leave. But what if she wishes to allow their daughter, who lived with them, to continue occupying the premises? Can she renounce her exclusive right so that her daughter can keep the home? And most importantly, can she do so without risking losing the lease herself?

This question, more common than one might think, often pits landlords against the relatives of a deceased tenant. The Court of Cassation (the highest French judicial court) issued a decision on 4 July 2024 that sheds light on this delicate point. It clarifies that the surviving spouse may renounce the exclusivity of his or her right to the lease, but this renunciation has strict limits. Explanations.

The facts: a story that happens every day

Mr. and Mrs. X. are married and have been renting a social housing property in Paris since 2001. The lease is in the sole name of Mr. X., as is often the case. In 2014, Mr. X. dies. Mrs. X. then becomes the sole holder of the lease, in accordance with Article 1751 of the Civil Code (which attributes the lease to the surviving spouse when the property served as the family home).

A few years later, Mrs. X. wishes to move closer to her daughter in Valbonne. She decides to leave the property and, so that her daughter can stay there, she writes to the landlord (the company Seqens) to renounce her right to the lease. She specifies that she is not giving notice (she is not terminating the lease) but is merely renouncing the exclusivity of her right, so that her daughter can benefit from a competing right to the lease as an ascendant (dependent person) or for another legal reason.

The landlord refuses this renunciation and sues Mrs. X. to have the lease terminated. According to the landlord, Mrs. X.'s renunciation amounts to an abandonment of the property, which terminates the lease. Mrs. X. defends herself: she never intended to leave permanently; she merely wanted to allow her daughter to stay. The first instance court rules in favour of the landlord, but the Paris Court of Appeal overturns this decision and recognises the validity of the renunciation. The landlord appeals to the Court of Cassation.

The reasoning of the court — broken down

The Court of Cassation had to decide a specific question: can a surviving spouse, as sole holder of the lease after the death of his or her spouse, renounce the exclusivity of his or her right to the lease to allow another person (such as a daughter) to benefit from competing rights, without this renunciation being considered a termination of the lease?

To answer, the Court relies on Article 1751 of the Civil Code (which attributes the lease to the surviving spouse) and on Article 14 of the Law of 6 July 1989 (which lists the persons who may benefit from the lease in the event of the tenant's departure: spouse, civil partner, cohabitee, ascendants, descendants, dependants...).

The Court first recalls that the surviving spouse becomes the sole holder of the lease. Then, it states that he or she may expressly renounce (in a clear and unequivocal manner) this exclusivity. In other words, he or she can say, 'I no longer wish to be the only one with rights under this lease.' This renunciation does not itself terminate the lease: the spouse remains the holder, but accepts that other persons (who fulfil the conditions of Article 14) may also have rights under the lease, or even claim it.

However, note: the renunciation cannot be used to circumvent the rules on notice (termination of the lease). If the spouse truly wishes to leave, he or she must give valid notice (respecting a notice period of 3 or 6 months depending on the case). The renunciation is not a disguised notice. In short, the surviving spouse can 'open the door' to other occupants without losing his or her own rights, but cannot use this renunciation to act as if he or she were no longer a tenant.

In this case, the Court therefore upholds the position of the Court of Appeal: Mrs. X. renounced exclusivity, but did not terminate the lease. Her daughter can therefore assert a competing right, provided she fulfils the legal conditions (being dependent on her mother, for example).

What this changes for you — concretely

This decision has important practical implications, whether you are a landlord, a tenant, or the heir of a tenant.

For tenants (surviving spouse): If you are the surviving spouse and you wish a relative (child, parent, cohabitee) to continue occupying the property after your departure, you can renounce your exclusivity without losing your rights. But be careful: this renunciation must be in writing and clear. You must state that you are renouncing exclusivity, not the lease itself. Concrete example: in Valbonne, a 70-year-old widow wants to move into a retirement home and leave her son in the apartment. She writes to the landlord: 'I renounce the exclusivity of my right to the lease so that my son, who has lived with me for 5 years, can benefit from a competing right. I am not giving notice.' This letter is valid.

For relatives (children, cohabitees): If you are in the situation of Mrs. X.'s daughter, you must demonstrate that you fulfil the conditions of Article 14 (being a dependant, living with the tenant for at least one year, etc.). The spouse's renunciation does not automatically give you the lease, but it allows you to assert your rights. undefined, I have encountered cases where the landlord refused to recognise this right, and it was necessary to go to court.

For landlords: If you receive a renunciation of this type, do not interpret it as an abandonment of the property. You must verify that the renunciation is express (in writing) and that the person presenting themselves fulfils the legal conditions. You cannot impose a new tenant of your choice if the surviving spouse renounces exclusivity. On the other hand, if no one fulfils the conditions, the lease may be terminated.

Example with figures: in Vallauris, a monthly rent of €800. If the surviving spouse renounces exclusivity and his or her daughter obtains the lease, the landlord cannot freely increase the rent (except for the regulated annual revision).

Four tips to avoid this type of dispute

• Draft a written and precise renunciation. Do not simply write 'I renounce the lease.' Write: 'I renounce the exclusivity of my right to the lease, in accordance with Article 1751 of the Civil Code, in order to allow [first name and relationship] to benefit from a competing right. I am not giving notice.' Send it by registered mail with acknowledgment of receipt.
• Keep evidence of cohabitation. If you are a relative wishing to benefit from the lease, gather documents showing that you lived with the deceased: rent receipts in your name, neighbour statements, proof of common residence.
• Do not confuse renunciation and notice. If you wish to leave permanently, give valid notice (3 months' notice in a tight area, 6 months elsewhere). Renunciation does not release you from your tenant obligations (paying rent, maintaining the property).
• Consult a solicitor specialising in property law before acting. Every situation is unique. A solicitor will help you draft the renunciation or challenge a landlord's refusal. In Grasse or Mont-de-Marsan, I regularly see clients who have made mistakes due to lack of advice.

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

Further reading: related case law and developments

This decision is part of a line of case law favourable to the protection of the family home. In 1998, the Court of Cassation already ruled that the lease of the family home is deemed to belong to both spouses, even if it is in the name of only one (3rd Civ., 27 May 1998, appeal no. 96-16.000). The 2024 decision goes further by allowing the surviving spouse to 'share' his or her right without losing the benefit of the lease.

Another recent decision (Civ. 3rd, 12 January 2023, no. 21-24.123) clarified that the surviving cohabitee can also have the lease transferred if he or she lived with the tenant for at least one year. The trend is therefore towards expanding the rights of occupants, within the limits of the legal conditions.

For the future, the courts will have to clarify the contours of this renunciation: how far can it go? Can one renounce partially? For example, renounce for one child but not another? The 2024 decision opens the way to more nuanced discussions.

Summary and next steps

Here is a checklist of actions to take if you are concerned:

1. Identify your situation: are you a surviving spouse, child, cohabitee, landlord?
2. Check the legal conditions: did the property serve as the family home? Does the person who wants to stay fulfil the conditions of Article 14 (family relationship, cohabitation of at least one year, etc.)?
3. Draft an express renunciation (if you are the surviving spouse) following the model above.
4. Send it by registered mail to the landlord and keep a copy.
5. In case of refusal by the landlord, apply to the judicial court (expedited procedure possible).

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