Fire in a rented dwelling: the tenant is no longer presumed responsible in Alsace-Moselle

Imagine the scene: you own a flat in Andrézieux-Bouthéon, near Saint-Étienne. One evening, a fire destroys part of the dwelling rented to a trader. You think the tenant is automatically responsible? That is what ordinary law says. But if your property is in Alsace-Moselle – not in the Loire – the situation changes completely. This decision of the Court of Cassation, handed down on 26 January 2022, states loud and clear: in the three departments governed by local law, the tenant is not presumed guilty. So, who pays for the damage? It all depends on proof of fault.

The question every landlord asks: 'Is my tenant liable to reimburse the repairs after a fire?' Under ordinary law (Articles 1733 and 1734 of the Civil Code), yes, unless he proves an act of God, a construction defect or the landlord's fault. But in Bas-Rhin, Haut-Rhin and Moselle, these articles do not apply. The result: the tenant is only liable for losses if the landlord proves fault on his part. A complete reversal of roles.

What exactly does the judgment say? It relies on Article 72 of the Act of 1 June 1924, which maintains the local rules in force. In clear terms, the tenant is not presumed responsible: it is for the landlord to prove that the loss is due to negligence or carelessness on the part of his tenant. Enhanced protection for the lessee, but a sword of Damocles for the landlord. Let us delve into the details.

The facts: a story that happens every day

Mr X is the owner of commercial premises in Strasbourg, in Bas-Rhin. He leases them to a company that operates a business there. On 15 March 2018, a fire breaks out in the back room. The fire ravages part of the premises, destroys equipment and forces the tenant to cease activity for several months. The landlord, considering the tenant responsible, claims €45,000 for restoration work, loss of enjoyment (loss of rent) and depreciation of the property.

The tenant contests: he claims he committed no fault and suspects a defective electrical installation. The lease contains no particular clause on fires. The dispute goes before the Strasbourg judicial court, then before the Colmar Court of Appeal. The latter, in September 2020, rules in favour of the tenant: it holds that the landlord has not proved the tenant's fault. Mr X appeals to the Court of Cassation. He invokes Article 1732 of the Civil Code, which presumes the tenant's liability for damage occurring during the lease.

The Court of Cassation, in its judgment of 26 January 2022, dismisses the appeal. It confirms that Articles 1733 and 1734 do not apply in Alsace-Moselle, and that Article 1732 – which provides a presumption of liability for damage – cannot found a presumption in the event of fire either. Why? Because Article 72 of the 1924 Act excludes the special provisions on fire, and the presumption under Article 1732 covers only ordinary damage, not exceptional losses such as fire. In short, the landlord must prove the tenant's fault. He did not do so. He loses.

The reasoning of the court — dissected

The judges of the Court of Cassation reason in three stages. First, they recall the applicable law: in the three departments of Bas-Rhin, Haut-Rhin and Moselle, the Act of 1 June 1924 maintained the earlier local provisions in force. However, local Alsatian-Moselle law does not recognise Articles 1733 and 1734 of the Civil Code (which establish a presumption of the tenant's liability in case of fire). These articles are therefore 'excluded' in these territories. Next, the Court examines Article 1732 of the same Code, which provides that the tenant is liable for damage or loss occurring during his enjoyment, unless he proves they occurred without his fault. But this article, according to the Court, does not create an autonomous presumption for fire: it applies to ordinary damage, not to an event as specific as fire, which has its own rules (Articles 1733 and 1734, precisely excluded).

Consequently, the tenant cannot be presumed liable solely on the basis of Article 1732. The burden of proof (i.e., who must prove what) rests entirely on the landlord: it is for him to demonstrate that the tenant committed a fault (negligence, carelessness, failure to comply with safety instructions) that caused the fire. If the landlord fails to do so, the tenant is exonerated.

This decision is a confirmation of earlier case law (notably a 2014 judgment, No. 13-16.772), but it clarifies it: it explicitly excludes Article 1732 as a basis for a presumption in matters of fire. The landlord's arguments – who tried to circumvent the exclusion of Articles 1733 and 1734 by invoking Article 1732 – are rejected. The Court shows consistency: if the local legislator intended to exclude special presumptions for fire, they cannot be indirectly reinstated.

What this changes for you — concretely

For landlord-owners in Alsace-Moselle, the decision is a warning: you no longer benefit from the presumption of liability. If a fire occurs, it is for you to prove your tenant's fault. Concretely, this means you will need to gather evidence: witness statements, expert reports, bailiff's reports, photos, etc. Without this, you cannot obtain compensation. For example, if your tenant leaves a candle lit when leaving and a fire starts, you must demonstrate that act. A simple record of damage is not enough.

For tenants, on the other hand, this is enhanced protection. You are no longer presumed liable. If the landlord claims damages, he must prove your fault. And if he does not, you are off the hook. However, be careful: if your lease contains an express clause under local law (for example, a clause that imposes a specific fire insurance or makes you liable even without fault), that clause may be valid. The Court of Cassation specifies that the presumption does not apply 'unless there is an express clause to the contrary in the lease under local law'. In other words, a well-drafted lease can reverse the trend.

Let us take a numerical example: in Andrézieux-Bouthéon, a landlord leases commercial premises to a craftsman. Fire: €50,000 damage. Under ordinary law, the tenant would be presumed liable and would have to pay, unless he proves an external cause. But if the premises are in Metz, the landlord must prove the craftsman's fault. If he fails to do so, he bears the loss alone. The difference is enormous. For real estate professionals, this decision requires verifying the location of the property and adapting the lease clauses accordingly.

Four tips to avoid this type of dispute

• Draft an explicit fire clause in the lease: if you are a landlord in Alsace-Moselle, include a clause that makes the tenant liable for fire damage, even without proved fault. This clause must comply with local law and be clearly accepted by the lessee.
• Require the tenant to have fire insurance: impose in the lease that the tenant takes out insurance covering fire risks, with a waiver of recourse against the landlord. This avoids conflicts in the event of a loss.
• Carry out a detailed inventory and take photos: before entry, document the condition of the property. In case of fire, these elements will help distinguish pre-existing damage from that caused by the fire.
• In case of fire, act quickly: have the damage recorded by a bailiff and appoint an independent expert. The sooner you gather evidence, the more chance you have of proving fault if you are a landlord, or of defending yourself if you are a tenant.

Further reading: related case law and developments

This decision is part of a line of judgments limiting the tenant's liability in Alsace-Moselle. Already in 2014, the Court of Cassation (No. 13-16.772) ruled that Article 1733 was not applicable in these departments. The 2022 judgment goes further by specifying that Article 1732 cannot found a presumption for fire either. Some courts, such as the Strasbourg judicial court, had already adopted this position, but the Court of Cassation now unifies it.

Under ordinary law, the trend is opposite: judges strictly apply Articles 1733 and 1734, which weigh heavily on the tenant. This divergence creates legal uncertainty for landlords who own properties in several regions. In the future, the legislator may harmonise the rules, or contractual practice may adapt by multiplying liability clauses. In the meantime, local law remains a specific feature not to be overlooked.

In practice: what to do

Checklist for a landlord in Alsace-Moselle after a fire:

1. Check whether the lease contains a specific liability clause for fire. If so, apply it.
2. If not, gather all evidence of any fault by the tenant (witness statements, photos, expert reports).
3. Report the loss to your insurer and request an investigation.
4. Consult a lawyer specialising in local law to assess your chances of success.
5. Consider mediation before initiating legal proceedings.

FAQ:

• Q: My tenant set the fire negligently, how do I prove it? A: Gather witness statements from neighbours, surveillance camera footage, or an expert report identifying the origin of the fire (e.g., a cigarette butt).
• Q: Can I include a clause that makes the tenant liable even without fault? A: Yes, if the clause is express and complies with local law. It must be carefully drafted to avoid being deemed unfair.
• Q: What are the time limits for taking action? A: The claim for contractual liability is subject to a 5-year limitation period from the loss. However, it is better to act quickly to preserve evidence.
• Q: What if the tenant has no insurance? A: You can pursue him against his personal assets, but this is often difficult. Better to require insurance in the lease.
• Q: Does this decision apply to residential leases? A: Yes, it concerns all leases (residential, commercial, professional) in the three departments concerned.

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