1948 Act: Can a Tenant Claim the Legal Rent after a 3-quinquies Lease?

Imagine the scene: you own a flat in Lagny-sur-Marne, let for decades under the 1948 Act. A tenant leaves, you sign a new lease with another occupier. Suddenly, this new tenant demands a 'legal' rent well below the rent you were receiving. You wonder: is he entitled to it? The answer is not so simple. This 1985 decision of the Court of Cassation settles a crucial point: the departure of a tenant protected by Article 3-quinquies does not automatically free the dwelling from the straitjacket of the 1948 Act. For the premises to be removed, the conditions of the Decree of 29 September 1962 must be scrupulously observed. A judgment of the Paris Court of Appeal, which had ruled to the contrary, is overturned.

The facts: a story like many that happen every day

Mr X is the owner in Lagny-sur-Marne of a flat subject to the Act of 1 September 1948. This Act, protective of tenants, caps rents and offers great stability. The first tenant, Mr Y, benefited from a lease governed by Article 3-quinquies of this Act, which concerns residential premises built before 1948. One day, Mr Y leaves the premises. Mr X then re-lets the dwelling to a new tenant, Mrs Z. But surprise: Mrs Z discovers that the rent demanded is higher than the legal rent calculated under the 1948 Act. She refers the matter to the Conciliation Commission, then to the tribunal d'instance, to have the rent set at the legal amount. Mr X resists: according to him, the departure of the previous tenant (Mr Y) removed the premises from the scope of the 1948 Act, and he is free to set the rent he wishes. The tribunal d'instance of Meaux agrees with him? No. The case goes up to the Paris Court of Appeal, which, on 16 February 1983, rules in favour of the landlord: the premises are no longer subject to the 1948 Act. Mrs Z appeals to the Court of Cassation. The Court of Cassation must decide: does the departure of a 3-quinquies tenant suffice to remove the dwelling from the 1948 Act?

The reasoning of the court — analysed

The Court of Cassation, in its judgment of 29 May 1985, overturns the judgment of the Paris Court of Appeal. It relies on Article 3-sexies of the Act of 1 September 1948. This article provides that, for certain premises (notably those governed by Article 3-quinquies), removal from the scope of the Act can only take place under conditions laid down by a decree, in this case the Decree of 29 September 1962. However, the Court of Appeal had held that the mere departure of a tenant holding a 3-quinquies lease sufficed to free the premises from the 1948 Act. Serious mistake! The Court of Cassation reminds that the second paragraph of Article 3-sexies makes removal subject to precise conditions: in particular, the premises must be free of occupation and the landlord must have manifested his intention no longer to let under the 1948 Act, in the forms prescribed by the decree. In this case, nothing of the kind had been done. The Court of Appeal therefore violated the law. The decision is a confirmation of the rigour of the derogatory regime: the 1948 Act is a matter of public policy and its removal is strictly regulated. The lower courts cannot arbitrarily decide that a premises has been removed.

What this means for you — concretely

For landlord lessors: beware! If you let a dwelling subject to the 1948 Act, the departure of a tenant (even one holding a 3-quinquies lease) does not automatically free you to set a new rent. You must check whether the premises meet the removal conditions of the 1962 Decree. For example, in Villeparisis, a landlord who re-lets a flat after the departure of a 3-quinquies tenant without complying with these formalities risks an action to fix the legal rent, with reimbursement of overpayments for three years. For tenants: if you move into a dwelling formerly subject to the 1948 Act and your landlord demands a rent higher than the legal rent, you can challenge it. Ask him whether he has followed the removal procedure. If not, refer the matter to the conciliation commission, then to the judge. For purchasers: before buying a building, check the status of the premises. A dwelling that was under the 1948 Act may remain so even after several changes of tenant, if the removals have not been regularised. Concrete example: in Lagny-sur-Marne, a building of 10 flats purchased for €1.2 million may lose 30% of its value if the 1948 Act still applies, because rents are capped.

Four tips to avoid this type of dispute

• Consult the text of the Decree of 29 September 1962: before re-letting an empty dwelling, check whether it is subject to the 1948 Act and whether the removal conditions are satisfied. Do not rely on a mere hunch.
• Obtain a diagnosis from a specialist lawyer: a property lawyer (such as Maître Zakine) can analyse the status of the premises and advise you on the procedure to follow. In Villeparisis, I have seen landlords lose thousands of euros for having neglected this step.
• Follow the removal formalities: if you consider that the premises are no longer subject to the 1948 Act, have a bailiff certify that the dwelling is empty, and notify your intention no longer to apply the Act. Keep all supporting documents.
• If in doubt, set a legal rent: rather than risk litigation, propose a rent in accordance with the 1948 Act. You can always request a subsequent revision if the removal is regularised. Legal security is better than an immediate gain.

Further reading: related case law and developments

This decision is part of a consistent line of case law of the Court of Cassation, which protects tenants under the 1948 Act. One may cite a judgment of 8 March 1983 (No. 81-15.247) which holds that a mere change of tenant does not remove the premises from the scope of the Act, even if the new lease is signed after 1 June 1948. The trend is clear: the courts are very strict on the conditions for removal. In practice, since 1985, few landlords have succeeded in removing a dwelling from the 1948 Act without complying with the 1962 Decree. The courts require solid evidence: formal notice, actual vacation, declaration at the town hall, etc. For the future, the ALUR Act of 2014 further restricted the possibilities of removal, by reinforcing landlords' obligations. If you are concerned, increased vigilance is necessary.

Frequently asked questions

Q: Can I freely increase the rent after the departure of a 3-quinquies tenant in Lagny-sur-Marne?
R: No, not without complying with the 1962 Decree. The Court of Cassation overturned a judgment that allowed it. You must check whether the removal conditions are satisfied.

Q: What should I do if my landlord refuses to lower the rent to the legal amount?
R: First refer the matter to the conciliation commission of your department (free of charge). If it fails, sue the landlord before the tribunal judiciaire. You can obtain reimbursement of overpayments for the last 3 years.

Q: What are the time limits for bringing an action to fix the legal rent?
R: You have 5 years from the payment of the undue rent (general limitation period). But for rents, the limitation is often 3 years (Article 2224 of the Civil Code). Act quickly.

Q: Can a landlord avoid the 1948 Act by letting furnished?
R: No, the 1948 Act applies to residential premises, whether furnished or not. Only dwellings built after 1948 or those that have been regularly removed are excluded.

Q: Is the 1962 Decree still applicable?
R: Yes, it is still in force. It sets out the removal conditions: the premises must be empty, the landlord must have notified his intention, and the dwelling must meet criteria of size and comfort.

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