Landlord's right of repossession: judges have sole discretion over suitability of alternative accommodation

Imagine: you have been a tenant in Arles for twenty years. Your landlord tells you he wants to recover the flat to house his son. He offers you another flat, but in Istres, 40 kilometres away. You refuse, believing that the flat is not suitable for your family. The landlord takes you to court. Who will decide? The answer lies in a 1985 decision of the Cour de cassation, which is still relevant today.

The question every landlord wanting to recover their property asks: is the accommodation I offer my tenant considered 'suitable' by law? And every tenant: can I refuse accommodation that takes me away from my work, my children's school, my family?

This decision of 2 October 1985 (No. 84-11.187) answers clearly: it is for the trial judges — those who examine the facts — to assess whether the offered accommodation meets the needs of the tenant and their family. The Cour de cassation does not rule on the facts. It only checks that the judges have correctly applied the law.

The facts: a story that happens every day

Mr and Mrs Y. are tenants of a flat in Bordeaux. Their landlord, Mr X., wishes to exercise his right of repossession (i.e., to recover the property for his own occupation or to give it to a relative) to house his son. In accordance with the law of 1 September 1948, he offers them another flat, located in Saint-Sulpice de Faleyrens, more than 40 kilometres from their current home.

The Y. couple refuse. Their son lives on the same landing, in the same building where they are tenants. He has daily emotional and family ties with them. Moving to Saint-Sulpice de Faleyrens would mean losing this proximity and an entire social, family, and friendship network. For them, the offered accommodation is not equivalent.

The landlord sues them before the tribunal d'instance of Bordeaux, which rules in their favour. Mr X. appeals. The cour d'appel of Bordeaux, by a judgment of 13 October 1983, confirms the decision: the offered accommodation does not meet the needs of the Y. family. The landlord appeals to the Cour de cassation, arguing that the judges misassessed the situation.

The Cour de cassation dismisses his appeal. It recalls that the assessment of the suitability of the accommodation falls within the sovereign power of the trial judges. They are the ones who, based on the circumstances of each case, decide whether the offered accommodation is suitable. The Cour de cassation cannot challenge this assessment, except for an error of law.

The reasoning of the court — broken down

The legal basis of this case is Article 10, paragraph 9, of the law of 1 September 1948. This text allows the landlord to recover the property for his own occupation or to house a relative, provided he offers the tenant alternative accommodation meeting the needs of the tenant and his family.

The central question is: what is accommodation 'meeting the needs'? The law does not give a precise definition. It leaves it to the judges to assess on a case-by-case basis. This is known as the 'sovereign power of assessment' of the trial judges.

In this case, the Y. couple argued that their son lived on the same landing, and that the daily emotional and family ties could not be maintained in Saint-Sulpice de Faleyrens, located more than 40 kilometres away. The cour d'appel found that this distance made the offered accommodation unsuitable. The landlord, for his part, considered this criterion too subjective.

The Cour de cassation confirms that it is indeed for the trial judges to assess sovereignly whether the offered accommodation is suitable. It does not control this assessment, unless the judges have violated a rule of law. In this case, they correctly applied the law. The decision is therefore final.

This case law has been constant since 1985. It has been reiterated in many subsequent decisions. It protects tenants against abusive offers, but also requires the landlord to offer truly equivalent accommodation.

What this means for you — practically

For the landlord: if you want to recover your property for your own occupation or to give it to a relative, you must offer accommodation that genuinely meets the tenant's needs. Do not settle for a smaller, further away, or less well-located property. Judges will examine specific elements: distance from work, school, shops, family ties. For example, in Arles, if you offer a studio in Istres to a family of four, it is a certain risk of refusal.

For the tenant: you have the right to refuse accommodation that does not suit you. But you must justify your refusal with objective reasons: distance from work, impossibility of schooling children under the same conditions, loss of family support. A simple 'I don't want to move' will not suffice. If you are sued, you will need to prove that the offered accommodation does not meet your needs.

For the purchaser of a building: before buying an occupied property, check whether the seller has already exercised a right of repossession or whether the tenants are protected by the 1948 law. You could inherit a dispute.

Example with figures: a landlord in Istres offers his tenant a flat 30 km away. The tenant works in Istres. The additional transport costs are estimated at €150 per month. The judge could consider that the accommodation is not suitable. If the landlord insists, he risks losing and having to pay legal costs (several thousand euros).

Four tips to avoid this type of dispute

• Offer equivalent accommodation in terms of size, price and location: if you are a landlord, do not underestimate the importance of proximity. Accommodation in the same town or within 10 km is more likely to be accepted. In Arles, offer a flat in the same neighbourhood or near public transport.
• Document the tenant's needs: if you are a tenant, keep evidence of your situation: employer's certificate, school certificate, medical proof. This will help you if you need to refuse accommodation.
• Negotiate amicably before going to court: an amicable agreement costs less than a trial. Offer a moving allowance or a temporary rent reduction to facilitate acceptance.
• Consult a specialist solicitor at the first signs of tension: a solicitor will help you assess your chances and prepare your file. A 30-minute consultation can save you months of proceedings.

Further reading: related case law and developments

The 1985 decision has been confirmed several times. For example, in a judgment of 19 March 1997 (No. 95-14.912), the Cour de cassation held that trial judges may take into account the tenant's state of health when assessing the suitability of the offered accommodation. In a more recent judgment of 8 November 2018 (No. 17-26.437), it recalled that the judge must verify that the offered accommodation is decent and suitable for the family composition.

The trend is therefore towards increased protection of tenants. Judges are increasingly examining personal circumstances. Conversely, some landlords criticise this case law, arguing that it makes the exercise of the right of repossession too difficult.

For the future, it is likely that the assessment criteria will continue to be refined, particularly with issues of mobility and ecological transition. Accommodation far from public transport could be deemed unsuitable.

Key points to remember

• What is the sovereign power of trial judges? It is the power of first instance and appeal judges to assess the facts without the Cour de cassation being able to contradict them, except for an error of law.
• Can I refuse accommodation offered by my landlord? Yes, if you demonstrate that it does not meet your needs (distance, size, price, etc.).
• What should I do if my landlord sues me? Contact a solicitor. You will need to prove that the offered accommodation is unsuitable. Gather all supporting documents.
• What are the risks for the landlord? If the judge finds that the offered accommodation is not suitable, the landlord loses his right of repossession and must pay legal costs.
• Is this decision still applicable today? Yes, it is still valid and regularly cited by courts.

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 →