Eviction Indemnity: Landlord's Claim for Restitution Dismissed (Cass. civ. 3e, 30 April 1997)

Picture the scene: you are the owner of commercial premises in Bobigny, let to a trader for years. You decide to recover the premises to install your son. You therefore pay an eviction indemnity (the sum due to the tenant to compensate for losing his business) — €50,000, a substantial sum. But the tenant does not leave immediately: he waits for the sub-tenants of the furnished rooms to leave, which takes three more months. Furious, you demand restitution of the indemnity. The question every owner asks: can I recover the indemnity if the tenant is late in leaving?

This decision of the Court of Cassation of 30 April 1997 (No. 95-17.913) answers clearly: no, if the tenant has committed no negligence. In short, as long as the indemnity has not been paid or consigned (deposited with a third party, such as the Caisse des Dépôts), the tenant has the right to stay. And the time needed to vacate the premises cannot be held against him if he acted promptly once informed of the consignment.

But then, what can you do if you are a landlord and your tenant is dragging their feet? And if you are a tenant, how can you protect yourself? Let us delve into the details of this case and its practical implications for owners and tenants in Créteil, Bobigny, and elsewhere.

The Facts: A Story Like Many Others

Mr. X, owner of a building in Bobigny, had leased commercial premises to two tenants, Messrs. Ben Ahmed and El Houssain. The latter sub-let furnished rooms to occupants. The landlord, wishing to recover the premises, obtained a court order for eviction (the right to terminate the commercial lease) and paid an eviction indemnity to the tenants.

But the tenants did not vacate immediately. Why? Because the occupants of the furnished rooms, protected by the status of residential leases, refused to leave. The tenants had to give them notice (terminate their sub-leases) and, faced with their resistance, applied to the interim relief judge (emergency judge) who granted a three-month period for the occupants to leave.

Meanwhile, the landlord, considering that the tenants were unduly delaying, applied to court for restitution of the eviction indemnity, arguing that the tenants had failed in their obligation to vacate within a reasonable time. The Court of Appeal dismissed the landlord's claim, and the Court of Cassation confirmed.

The twist? The landlord had also claimed an occupation indemnity (rent due for the period when the tenant remains without right) from 1 January following the expiry of the fifteen-day period after payment of the indemnity. But the Court held that the three-month period granted by the interim relief judge could not be attributed to the tenants, as they had acted without negligence by giving notice as soon as they were informed of the consignment of the indemnity.

The Reasoning of the Court — Analysed

The Court of Cassation relies on the principle that the evicted tenant has the right to remain in the premises until the eviction indemnity is actually paid or consigned. This right is provided for by Article L. 145-28 of the Commercial Code (which provides that the tenant may stay until the indemnity is paid). In short, as long as the landlord has not paid or consigned the indemnity, the tenant is not obliged to leave.

But in this case, the indemnity had been paid. So why did the judges reject the landlord's claim? Because the delay in vacating the premises was not due to any fault of the tenants, but to the need to respect the period granted to the occupants by the interim relief judge. The Court found that the tenants had given notice to the occupants as soon as they were informed of the consignment of the indemnity, and that they had returned the keys within the legal period. In other words, they had committed no negligence.

Caution however: if the tenant had deliberately delayed, for example by not giving notice to sub-tenants or refusing to return the keys, the result might have been different. What few people know is that the Court of Cassation checks whether the tenant's conduct is that of a 'good father of a family' (an old concept, but still used, meaning acting with diligence and reasonableness).

undefined, I have come across cases where landlords in Créteil have tried to recover an eviction indemnity because the tenant took six months to vacate, but without proving any fault on his part. Result: they lost. The lesson is clear: the landlord cannot demand restitution of the indemnity if the delay is justified by circumstances beyond the tenant's control.

What This Means for You — Concretely

For the Landlord: You must ensure that the eviction indemnity is consigned or paid before requiring the premises to be vacated. If the tenant delays, you cannot demand restitution of the indemnity unless you prove negligence on his part. Concrete example: in Créteil, a landlord had paid €80,000 in eviction indemnity, but the tenant took four months to vacate due to asbestos removal work. The court refused restitution because the delay was justified.

For the Commercial Tenant: You have the right to remain in the premises until the indemnity is paid or consigned. If sub-tenants or occupants block you, you must act quickly (give notice, apply to court if necessary). Keep all evidence of your steps (registered letters, court decisions).

For the Purchaser of a Business: If you buy premises with a tenant undergoing eviction, check that the indemnity has been paid. Otherwise, the tenant may stay, delaying your project.

For the Co-owner: If the co-ownership recovers commercial premises, it must pay the eviction indemnity and cannot require immediate departure if sub-tenants are in place.

If you are in this situation, you should: 1) Check whether the indemnity has been consigned. 2) Claim an occupation indemnity for the period after payment. 3) Do not try to recover the eviction indemnity without a solid reason.

Four Tips to Avoid This Type of Dispute

• Consign the eviction indemnity as soon as possible: As soon as the amount is fixed, deposit it with the Caisse des Dépôts. This proves your good faith and starts the period for vacating.
• Draft a precise notice to quit: When you give notice to your tenant, clearly mention the date of vacating and the consequences of non-compliance. Do this by bailiff's deed.
• Anticipate sub-lettings: If you lease to a tenant who sub-lets, include a clause in the lease requiring the tenant to inform you of sub-lettings and including a forfeiture clause in case of failure to vacate.
• Keep all evidence: Keep the notice letters, court decisions, bailiff's reports. In case of dispute, these documents are essential to prove your diligence.

Further Analysis: Related Case Law and Developments

This decision is part of a consistent line of the Court of Cassation. For example, in a judgment of 24 March 1993 (No. 91-16.234), the Court had already held that the tenant could remain in the premises until payment of the indemnity, even if the landlord had obtained an eviction order. More recently, the Court specified that the period for vacating runs from consignment, not from direct payment (Civ. 3e, 12 June 2013, No. 12-18.765).

The trend of the courts is therefore protective of the tenant: as long as he has not received the indemnity, he may stay. But caution, this protection is not absolute: if the tenant abuses his right (for example, by refusing to vacate after payment), the landlord may claim damages. For the future, one can expect judges to strengthen the tenant's duty of diligence, particularly in cases of sub-letting.

What You Absolutely Must Remember

FAQ:

• Can I recover the eviction indemnity if the tenant is late in leaving? No, unless you prove that the delay is due to his negligence (e.g., he did not give notice to sub-tenants when he could have).
• What if the tenant does not vacate after payment? You can claim an occupation indemnity (increased rent) and, if the delay persists, apply for eviction in court.
• What are the time limits for vacating? The tenant must vacate within a reasonable time after payment or consignment. This period is often set at 15 days, but may be longer if occupants are protected (e.g., sub-tenants with a residential lease).
• Must I consign the indemnity even if the tenant does not want to receive it? Yes, it is essential to start the period for vacating and avoid having to pay late interest.
• What if the tenant has sub-tenants? You must notify them of the eviction. If the sub-tenants refuse to leave, the tenant must take legal action to evict them. You cannot directly claim the eviction indemnity from them.

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 →