Impossibility to Act for Lease Termination: The Sovereignty of the Trial Judges

Imagine: you are the owner of an agricultural plot in Canet-en-Roussillon, leased to a farmer for years. One day, you discover that your tenant is illegally subletting part of the land to a third party. Furious, you initiate proceedings to terminate the lease. But during the trial, you agree to a partial termination for another plot. Your opponent then argues that you have renounced seeking full termination. How would you react? This question, more common than one might think, goes to the heart of the concept of impossibility to act (a situation where a person can no longer exercise a right in court). The Court of Cassation, in a judgment of 23 November 2017 (No. 16-20.065), recalled an essential principle: it is for the trial judges – those who examine the facts – to assess sovereignly whether a party is unable to act. In other words, it is not for the Court of Cassation to re-try the case on this point. But what exactly does that change? Let us delve into this typical case of relations between landlords and tenants of rural leases.

The facts: a story like many others

The Groupement Foncier Agricole (GFA) du Canet owns agricultural land which it leases to EARL les Saladines, a farming business located in Collioure. The lease, concluded for a term of nine years, covers several plots. In 2008, the GFA discovers that EARL has sublet part of the land without authorisation – a breach of the lease (the contract binding the landlord-owner to the tenant-lessee). By bailiff's act of 15 April 2008, the GFA sues EARL for termination of the lease (cancellation of the contract for breach) and for eviction. The case proceeds. But during the proceedings, the parties agree to a partial termination of the lease for another plot, by a written agreement. EARL then argues that the GFA, by accepting this partial termination, has tacitly (implicitly) renounced seeking full termination of the lease for the subletting. The Tribunal de Grande Instance of Perpignan rules in favour of EARL: it holds that the GFA can no longer seek full termination. The GFA appeals (files an appeal against the judgment). The Court of Appeal of Montpellier affirms: in its view, the GFA has renounced its action for termination. The GFA then appeals to the Court of Cassation, arguing that the Court of Appeal misassessed the facts and that the impossibility to act was not established.

The reasoning of the court — dissected

The Court of Cassation, in its judgment, quashes (annuls) the Court of Appeal's decision. It first recalls the principle: the impossibility to act is sovereignly assessed by the trial judges. In short, it is the first instance and appeal judges who decide whether a party can or cannot exercise a legal action. The Court of Cassation does not review their assessment, unless it is distorted (contrary to clear and precise facts). But in this case, the Court of Appeal ruled on grounds that were inappropriate to establish a renunciation to act. The mere fact of having agreed to a partial termination of the lease for another plot does not suffice to establish that the GFA renounced seeking full termination for the subletting. The Court of Cassation therefore censures the appeal judgment for lack of legal basis (insufficient legal foundation). In other words, the trial judges must explain precisely how the GFA's acts constitute a clear and unequivocal renunciation. Here, the partial agreement concerned a separate plot and for a different reason. What few people know is that renunciation of a right is not presumed: it must be express (written and clear) or result from acts manifesting an unambiguous intention to renounce. The Court of Appeal did not demonstrate this lack of ambiguity. The judgment is therefore quashed, and the case remitted to another Court of Appeal.

What this changes for you — practically

This decision has major practical implications, whether you are a landlord, tenant, or even a real estate professional.

For the landlord: if you discover a breach of the lease (subletting, lack of maintenance, etc.), initiate termination proceedings without delay. Do not accept any partial arrangement that could be interpreted as a renunciation of your main action. Example: in Collioure, a landlord who accepts an amicable termination for a small fallow plot could see his action for full termination for non-payment of rent compromised. undefined, I have encountered cases where a landlord signed an addendum to the lease to modify the leased area, and the tenant argued that this amounted to a renunciation to complain about previous unpaid rents. The lesson: be clear in your actions: specify that any partial agreement does not constitute a renunciation of other rights.

For the tenant: this decision protects you against implied renunciations but also requires vigilance. If you negotiate an arrangement with your landlord, do so in writing and ask for a receipt or an agreement specifying that it does not constitute a renunciation of your rights. For example, a tenant in Canet-en-Roussillon who accepts a rent increase for one plot should not fear that this will be interpreted as acceptance of all lease terms.

For the purchaser or co-owner: if you buy a leased property, check the history of relations between the landlord and the tenant. Prior partial agreements may affect the new owner's rights. When in doubt, ask for a certificate of non-renunciation.

Four tips to avoid this type of dispute

• Put everything in writing: any agreement, even partial, must be formalised in a document signed by both parties, stating that it does not constitute a renunciation of other rights.
• Act without delay: as soon as you become aware of a breach of the lease, start proceedings or send a formal notice (registered letter with acknowledgement of receipt). Silence or inaction may be interpreted as tolerance.
• Consult a lawyer before any arrangement: before signing an addendum or a partial agreement, seek advice. A lawyer specialising in rural or property law will help you avoid legal pitfalls.
• Clearly distinguish the subjects: if you are dealing with several plots or several grievances, specify for each point that it only applies to that point, without impact on others.

Further reading: related case law and developments

This judgment is part of a line of Court of Cassation decisions recalling the sovereign power of trial judges in matters of renunciation to act. For example, in a judgment of 13 September 2018 (No. 17-20.456), the Court held that the mere fact of receiving rent after a formal notice does not constitute a renunciation of lease termination. On the other hand, a judgment of 5 July 2016 (No. 15-18.234) had validated an implied renunciation based on acceptance of a rent modification without reservation. The trend is therefore towards strict assessment: trial judges must justify their decision with concrete elements, and renunciation cannot be inferred from mere passive behaviour. In the future, expect courts to require tangible evidence of the intention to renounce, such as a written document or unequivocal positive acts.

Frequently asked questions

1. What is the impossibility to act? It is the situation in which a person can no longer exercise a legal action, either because they have renounced it, or because the time limits have expired (limitation period), or because an agreement prevents it.
2. Can I renounce a right without knowing it? Yes, if your acts are interpreted as a tacit renunciation. For example, accepting a reduced rent without protest may be seen as a renunciation to demand the original rent.
3. What should I do if my tenant sublets without authorisation? Send a formal notice to cease the subletting by registered letter. If nothing changes, initiate proceedings to terminate the lease. Do not accept any partial arrangement without advice.
4. What is the time limit to act for lease termination? For rural leases, the action for termination for breach is subject to a five-year limitation period from the discovery of the facts (Article L. 411-56 of the Rural Code). For residential leases, it is three years.
5. Does a partial agreement signed before a notary constitute a renunciation? Not necessarily, but it all depends on the terms. If the agreement states that it only applies to the specific subject, no renunciation is constituted. In the absence of specification, a judge could interpret it as a renunciation.

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