Dwelling Subject to a Danger Notice: The Landlord Must House the Tenant, Even After a New Lease

Imagine: you are a tenant of a flat in Saint-Vincent-de-Tyrosse. One day, the town council serves you with a danger notice: the dwelling is temporarily uninhabitable. You must leave the premises and find a roof. Your landlord offers you another dwelling, you sign a new lease. But what happens if this new dwelling has problems, or if you can no longer pay the rent? Can the landlord evict you?

This question was answered by the Court of Cassation on 3 February 2010, in a case concerning the company Logivie and its tenants. The decision is clear: the landlord of a dwelling subject to a temporary prohibition on habitation is obliged to provide and bear the cost of accommodation for the tenant. And the signing by the tenant of a new lease for another dwelling does not constitute a waiver of his rights. In short, the landlord cannot rely on this new contract to demand payment of rent or seek termination of the lease.

But what exactly does this change for you, landlord or tenant in the Landes or elsewhere? Let us delve into this decision.

The Facts: A Story Like Many Others

Mr and Mrs X are tenants of a dwelling belonging to the company Logivie in Saint-Vincent-de-Tyrosse. On 30 July 2004, a municipal order declares the dwelling in a state of danger and temporarily prohibits its habitation. The tenants must leave the premises. The company Logivie then offers them another dwelling, located in another commune in the Landes. On 11 August 2004, Mr and Mrs X sign a new lease for this replacement dwelling.

But things quickly turn sour. The new tenants do not pay the rent. The company Logivie then sues them to have the new lease terminated (i.e., to ask the judge to declare that the lease is terminated due to non-payment) and to obtain their eviction. The tenants, for their part, invoke their right to be housed free of charge by the landlord, under Articles L. 521-2 and L. 521-3 of the Construction and Housing Code. These texts impose on the owner of a dwelling subject to a danger notice the obligation to provide accommodation for the tenants, and this for as long as the prohibition on habitation lasts.

The Court of Appeal rules in favour of the tenants: it rejects the claim of the company Logivie, considering that the new lease was merely a method of performing the obligation to provide accommodation, and not an ordinary lease. The landlord appeals to the Court of Cassation (seeks to have the Court of Cassation quash the Court of Appeal's decision). It argues that nothing prevents the parties from agreeing to immediate rehousing in the form of a new lease, and that this new lease must produce its normal effects, in particular the tenant's obligation to pay rent.

The Reasoning of the Court — Analysed

The Court of Cassation dismisses the appeal and upholds the Court of Appeal's decision. Its reasoning is as follows: Articles L. 521-2 and L. 521-3 of the Construction and Housing Code (which impose on the landlord of a dwelling subject to a temporary prohibition on habitation the obligation to provide and bear the cost of accommodation for the tenant) are matters of public policy. This means that they cannot be derogated from by contract. The signing of a new lease by the tenant does not constitute a waiver of his right to free accommodation. Indeed, a waiver of a right is not presumed: it must be express and unequivocal. However, the mere fact of accepting a new dwelling as part of a rehousing solution proposed by the landlord does not demonstrate that the tenant has waived the free nature of that accommodation.

In other words, the new lease is not an ordinary lease: it is the concretisation of the landlord's obligation to provide accommodation. Consequently, the landlord cannot rely on this contract to demand payment of rent or termination for non-payment. Note, however, that this does not mean that the tenant is entirely discharged from all obligations. He must still comply with the other terms of the lease (proper use of the dwelling, etc.). But the rent clause is, in a way, suspended.

This decision is part of a line of case law protective of tenants in matters of unsanitary or dangerous housing. What few people know is that the courts consider that the obligation to provide accommodation takes precedence over the lease contract, because it responds to a general interest in safety and health. This is a confirmation of the previous position of the Court of Cassation, already expressed in a decision of 7 May 2008.

What This Changes for You — Practically

For the landlord: if your dwelling is subject to a danger notice (temporary prohibition on habitation), you must offer accommodation to your tenants, at your expense. You cannot impose a new lease with rent during the prohibition period. undefined, I have come across cases where landlords in Parentis-en-Born offered replacement accommodation for a rent and ended up in proceedings. If you are in this situation, you must absolutely bear the cost of accommodation (rent, charges, etc.) and not seek to recover it during the danger period. One solution: take out rent loss insurance, but this does not cover the obligation to provide accommodation. The best is to contact a lawyer lawyer as soon as the danger notice is issued.

For the tenant: if your dwelling is declared uninhabitable, you are entitled to free and decent accommodation, paid for by your landlord. Do not sign a new lease without checking that it does not impose a rent on you. If the landlord offers you accommodation with rent, you can refuse and demand the application of the law. In the event of a dispute, the judge will rule in your favour. Caution: this right only lasts as long as the prohibition on habitation is in force. Once it is lifted, the original lease resumes its course.

For the purchaser of a property: if you buy a dwelling that is subject to a danger notice, you must be aware that you take over the seller's obligations towards the tenants. Check before purchase whether tenants are in place and whether the property is in danger.

Example with figures: in Parentis-en-Born, a landlord had to house his tenant for 6 months in a rented dwelling costing €600/month, i.e., €3,600 at his expense. By trying to pass on this cost through a new lease, he lost in court and also had to reimburse the rents received. Better to anticipate.

Four Tips to Avoid This Type of Dispute

• Tip No. 1: Anticipate the risk of danger. Have a technical diagnosis (structure, electricity, etc.) carried out by a professional, especially for older properties. In Saint-Vincent-de-Tyrosse, the town council can inform you about risk areas.
• Tip No. 2: In the event of a danger notice, immediately contact a lawyer lawyer. Do not propose a housing solution without legal advice. The firm of Maître Zakine can assist you within 48 hours.
• Tip No. 3: If you offer a replacement dwelling, formalise it by a temporary accommodation agreement, not by a classic lease. State that it is an execution of the legal obligation, without rent, and that the original lease will resume its rights when the prohibition is lifted.
• Tip No. 4: Ensure that your non-occupant landlord insurance covers rehousing costs. Some policies include this cover. Check the limits and exclusions.

Further Reading: Related Case Law and Developments

This decision of the Court of Cassation of 3 February 2010 is part of a protective line. Already, in a decision of 7 May 2008 (No. 07-12.527), the Court had ruled that the landlord's obligation to provide accommodation in case of danger takes precedence over the lease contract. More recently, the Court extended this logic to cases of unsanitary conditions (decision of 12 September 2012, No. 11-21.874), specifying that the landlord must ensure rehousing even if the tenant is in bad faith. The trend of the courts is therefore very favourable to tenants. In the future, we can expect judges to further strengthen landlords' obligations, particularly regarding deadlines and the quality of the replacement accommodation. In practice, for landlords, this means acting quickly and correctly from the first report of danger.

Key Points to Remember

• Obligation to provide accommodation: The landlord must house the tenant free of charge for the entire duration of the temporary prohibition on habitation.
• New lease: The signing of a new lease by the tenant does not constitute a waiver of free accommodation. The landlord cannot demand rent during the danger period.
• Risk for the landlord: In case of non-compliance, the landlord risks being ordered to repay rents received, pay damages, etc.
• Practical advice: In the event of a danger notice, do not sign anything without a lawyer. The firm of Maître Zakine can advise you within 24 hours.

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