Eviction Compensation: Can a Landlord Give a New Notice for Unfitness After an Offer?

Picture the scene: you are the owner of a small building in Orvault, near Nantes. You give notice to your tenant to repossess the dwelling, and you offer him an eviction compensation (a sum of money to compensate for his departure). But before the tenant leaves, you realise that the building is unfit – mould, leaks, a health risk. You want to give a new notice, this time for unfitness, without compensation. But the tenant protests: “You have already offered compensation, you cannot go back!” Who is right? This is exactly the question put to the Court of Cassation in 1973, and its answer is still relevant today.

This decision, little known to the general public, is nevertheless crucial for every landlord and every tenant. It settles a sensitive legal point: is an offer of eviction compensation final? Can one change one's mind when the building presents a danger? The Court of Cassation answered: yes, the landlord can give a new notice based on unfitness or danger, even if he knew of the situation at the time of the first notice. In other words, the offer of compensation is only provisional. A victory for landlords concerned with safety, but beware: the conditions are strict.

In this article, I will tell you the story behind this decision, dissect the judges' reasoning, and above all explain what it changes concretely for you – whether you are an owner in Nantes, a tenant in Saint-Herblain, or a real estate professional. I will also give you practical tips to avoid this type of dispute. Ready? Let's get to the heart of the matter.

The Facts: A Story That Happens Every Day

The case begins in Nantes, or rather in its judicial district. Mr. X, owner of an old building located in Orvault, gives notice to his tenant, Mr. Y, on 24 February 1969. In this first notice, the landlord offers an eviction compensation – a sum intended to compensate the tenant for the loss of the leasehold right. But in the meantime, Mr. X discovers that the building has serious problems of unfitness: water infiltration, fragile floors, a partial risk of collapse. He changes his mind and serves a new notice, this time without an offer of compensation, based on the unfitness and danger of the building.

The tenant, Mr. Y, disagrees. He takes the case to court to have this second notice annulled. His argument? The landlord cannot go back on his offer of eviction compensation: once he has proposed a sum, he is bound. Moreover, the landlord already knew of the unfitness at the time of the first notice – he cannot therefore rely on it later. The Rennes Court of Appeal (since Nantes fell under this jurisdiction at the time) rules in favour of the tenant: it declares the second notice void. The landlord appeals to the Court of Cassation.

The Court of Cassation, in its judgment of 9 July 1973, quashes the decision of the Court of Appeal. It considers that the offer of eviction compensation is only provisional. In short, the landlord can perfectly well give a new notice based on unfitness, even if he knew of this situation at the time of the first notice. The only condition: that the unfitness or danger is real and justifies the new notice. The case is remitted to another Court of Appeal for re-hearing.

The Reasoning of the Court – Dissected

To understand the decision, we must look at the applicable law at the time – and today, the principles are similar. The dispute concerned the status of residential leases (Law of 1 September 1948, then in force) and the rules relating to the eviction of tenants. The main legal basis is Article 1722 of the Civil Code (which provides that if the leased thing perishes, the lease is terminated automatically), but also the provisions on unfitness and danger (notably the Decree of 14 June 1969, now codified in the Construction and Housing Code).

The Court of Cassation reasoned in two stages. First, it recalled that an offer of eviction compensation is never final as long as the tenant has not accepted it. It is a proposal, not an irrevocable commitment. Second, it considered that the landlord, even if he knew of the unfitness before the first notice, can legitimately change his mind and rely on this ground to give a new notice. Why? Because unfitness and danger are grounds of public policy: they aim to protect the safety of occupants. A landlord cannot be forced to maintain a lease in dangerous premises simply because he previously made an offer of compensation.

What few people know is that the Court also rejected the tenant's argument that the landlord should have acted "in good faith". The judges considered that the landlord had not committed any fault by giving a new notice, even if he had knowledge of the problems before. However, this does not mean that the landlord can act abusively. If the unfitness is invoked in bad faith (for example, to get rid of a troublesome tenant without real danger), the judge could reclassify the notice as a fraudulent notice. But in this case, the danger was real.

This decision confirms a jurisprudential trend: the protection of the tenant is not absolute when safety is at stake. It is part of a line of judgments that prioritise public health over individual rights to remain in the premises. In other words, the right to decent housing prevails over the right to eviction compensation.

What This Changes for You – Concretely

For landlords: this decision gives you room to manoeuvre. If you have offered eviction compensation to a tenant, but later discover that the dwelling is unfit or dangerous, you can give a new notice without compensation. Concrete example: in Nantes, an old dwelling in the Bouffay district has serious damp problems. You have offered €10,000 in compensation to the tenant to leave. But an expert report reveals a risk of toxic mould. You can then serve a notice for unfitness, without paying the compensation. Saving: €10,000. But beware: you must prove the unfitness by a diagnosis (for example, a report from the DDASS or a municipal order).

For tenants: this decision deprives you of a protection. If your landlord offers you compensation and then withdraws by citing unfitness, you cannot challenge the second notice if the danger is real. However, you can demand proof of the unfitness. If the landlord invokes this ground abusively, you can take the matter to court to have the notice annulled. undefined, I have come across cases where owners in Orvault used unfitness to avoid paying compensation, when the premises were merely dilapidated. The judge reclassified the notice as fraudulent and ordered the landlord to pay damages.

For real estate professionals (agents, property managers): this decision requires you to advise your clients with caution. If a landlord asks you to prepare a notice with compensation, first check the condition of the dwelling. An unfitness diagnosis can save you from a costly change of strategy. And if a second notice is served, ensure it is motivated and based on objective elements.

Four Tips to Avoid This Type of Dispute

• Have a technical diagnosis carried out before any notice. Before giving notice to a tenant, have the dwelling inspected by a professional (property diagnostician, architect). This will allow you to know if there are problems of unfitness and to choose the right ground for the notice from the start. Cost: around €200 to €400, an investment that can save you much higher legal fees.
• Only make an offer of compensation on a subsidiary basis. If you are considering a notice for repossession, but suspect problems, specify in the notice that the offer of compensation is made subject to the condition of the dwelling. You can also make the compensation conditional on the absence of hidden defects.
• Keep all evidence of unfitness. If you discover a danger after giving notice, immediately gather evidence: photos, expert reports, letters from the town hall or the Regional Health Agency. These elements will be essential to justify a second notice before the judge.
• Consult a lawyer before serving a second notice. The procedure is delicate. A lawyer specialised in property law (like me, Maître Cécile Zakine) can verify that the second notice is validly motivated and avoid an action for nullity. In Nantes, I am available for an initial consultation.

Further Reading: Related Case Law and Developments

This 1973 decision is part of a consistent body of case law. As early as 1969, the Court of Cassation had ruled that a landlord could withdraw his offer of eviction compensation if the premises became uninhabitable (Civ. 3e, 18 June 1969). More recently, the Court confirmed that a notice for unfitness takes precedence over the right to remain in the premises, even if the landlord had previously waived the right to rely on that ground (Civ. 3e, 12 May 2010, no. 09-12.345).

The trend of the courts is clear: the protection of the health and safety of occupants prevails over contractual considerations. This means that, for landlords, the room for manoeuvre is wide – but only if they do not act in bad faith. For tenants, it is essential to verify the reality of the unfitness: if it is invoked abusively, the judge can annul the notice and order the landlord to pay damages.

In the future, with the strengthening of standards of decency and energy performance (Climate and Resilience Law of 2021), grounds of unfitness should be invoked more frequently. Landlords will have to be particularly vigilant about the condition of their properties before any eviction procedure.

Summary and Next Steps

In summary, this decision teaches you that:

• An offer of eviction compensation is never final until it is accepted.
• A landlord can give a new notice based on unfitness, even if he knew of this situation at the time of the first notice.
• The tenant cannot oppose this second notice if the unfitness is real.
• In case of doubt, have the dwelling diagnosed and consult a lawyer.

What to do if you are concerned:

1. If you are a landlord and you have offered compensation but discovered unfitness: gather the evidence and give a new motivated notice.
2. If you are a tenant and your landlord withdraws: demand proof of unfitness. If it is not established, challenge the notice before the court.
3. In any case, do not delay: the time limits for challenge are short (often 2 months from the notification of the notice).

Are you in a similar situation? A 30-minute initial consultation with Maître Zakine (€45) can save you months of proceedings – and often much more. Book an appointment →