1948 Act: Landlord May Challenge Corrected Floor Area Statement Without Time Bar

Imagine the scene: in Mauguio, near Montpellier, a landlord lets a flat under the regime of the Act of 1 September 1948. His tenant sends him a corrected floor area statement, calculating a monthly rent of 200 euros. The landlord finds this amount suspicious, but continues to cash the cheques without making written reservations. Can he still challenge the calculation months later? This question, which worries many landlords, received a clear answer from the Court of Cassation in a judgment of 29 January 1970. The judges ruled: acceptance of rent without reservation does not prevent the landlord from disputing the statement. Explanations follow.

The facts: an everyday story

In Paris, a townhouse located ... was let for two years from 1 September 1964, at a determined monthly rent. The tenant notified the landlady of a corrected floor area statement, showing a monthly rent of ... euros. The landlady contested the accuracy of this statement. The dispute concerns the application of Articles 32 and 32 bis of the Act of 1 September 1948. Article 32 allows the tenant to request the fixing of the legal rent in the absence of a statement, while Article 32 bis provides for periodic revision with a time bar (a period after which an action is no longer admissible) of two years for the landlord. Here, the tenant requests not a revision, but the determination of the initial legal price. The landlady cashes the rents without reservation for several months, then brings proceedings to have the statement verified. The High Court of Paris orders an expert appraisal. The tenant appeals, arguing that the landlady, by accepting the rents, waived her right to contest. The Paris Court of Appeal confirms the expert appraisal, and the tenant appeals to the Court of Cassation.

The reasoning of the court — dissected

The Court of Cassation dismisses the appeal. It clearly distinguishes the two texts: Article 32 bis introduces a time bar (a two-year period to challenge the revision statement); Article 32, however, provides no time bar. In this case, the tenant requests the fixing of the initial rent under Article 32, and not a revision. Consequently, the landlady may challenge the statement at any time. In other words, the time bar in Article 32 bis does not apply. The judges specify that acceptance of rent without reservation does not imply a waiver (voluntary abandonment of a right) of the right to contest. Indeed, waiver is not presumed; it must be express and unequivocal. Cashing rents is an act of routine management, not an acknowledgment of the correctness of the statement. This reasoning has been consistent ever since: a landlord may challenge a corrected floor area statement as long as the rent has not been finally fixed by a court decision. However, note: if the landlord had expressly written "I accept the statement" or signed an addendum, he would be bound. But mere cashing is not enough.

What this means for you — practically

For landlords under the 1948 Act: you can challenge a corrected floor area statement even if you have cashed rents for months. Concrete example: in Lodève, a landlord receives a statement from his tenant indicating a rent of €300 when he believes the legal rent is €400. He cashes the €300 for a year, then takes the matter to court. The 1970 judgment allows him to obtain an expert appraisal and, if the statement is erroneous, to claim arrears (the difference between the rent received and the legal rent). In practice, you must act within a reasonable time: the five-year limitation period (5 years) of Article 2224 of the Civil Code applies. If you wait more than 5 years, you will lose the right to claim arrears. For tenants: do not rely on the landlord cashing rents to validate your statement. If you have made a calculation error, the landlord can correct it. It is therefore better to be precise and, if in doubt, have the statement validated by an expert or a lawyer. For purchasers of properties subject to the 1948 Act: check the history of statements. Did a previous landlord challenge? Does the current rent correspond to a statement validated by a court decision? If not, you could inherit a dispute. undefined, I have encountered cases where landlords accepted undervalued rents without complaint for years, then lost thousands of euros because they delayed taking action. This decision offers them a lifeline.

Four tips to avoid this type of dispute

• Have a corrected floor area statement prepared by a professional at the start of the tenancy. A chartered surveyor or a diagnostician can calculate the corrected floor area in accordance with the 1948 Act. This avoids approximations and subsequent disputes.
• Do not simply cash rents if you suspect an error. Send a recorded delivery letter with acknowledgement of receipt to the tenant to contest the statement, even briefly. Mention "without prejudice" on your receipts.
• Act within a maximum of 5 years. The five-year limitation period runs from each rent payment date. If you wait more than 5 years, you can only claim the last 5 years of arrears.
• Consult a lawyer lawyer at the first doubt. A simple advice can save you from lengthy and costly proceedings. In Montpellier, many property lawyers offer a first consultation at a moderate fee.

Further reading: related case law and developments

This 1970 decision is part of a consistent line. The Court of Cassation has confirmed this principle several times, notably in a judgment of 20 November 1974 (No. 73-10.456) where it specifies that the landlord can challenge the statement even after signing a lease mentioning the rent derived from the statement, if the mention results from an error. More recently, the Rent Chamber of the Court of Cassation recalled in a judgment of 18 October 2018 (No. 17-25.201) that the time bar in Article 32 bis applies only to revision, not to initial fixation. The trend is therefore protective for landlords, but caution: lower courts (tribunaux d'instance, courts of appeal) may be stricter if the landlord has allowed a very long time to pass without acting. It is therefore prudent not to delay too long. For the future, the 1948 Act is being phased out (the properties concerned are rare and new), so these disputes are becoming rarer, but they remain relevant for existing leases.

Summary and next steps

FAQ:

1. Can I challenge a corrected floor area statement after cashing rents for several years? Yes, as long as the limitation period (5 years) has not expired. Cashing without reservation does not constitute a waiver.

2. What if my tenant refuses to provide the corrected floor area statement? You can apply to the judicial court for an order for disclosure under penalty. The judge may also order an expert appraisal.

3. What is the time limit to challenge a revision statement (Article 32 bis)? The landlord has two years from the notification of the revision statement. After that period, he is time-barred (inadmissible).

4. Can I claim arrears if the initial statement was erroneous? Yes, but only for rents falling due within the 5 years preceding your claim. For earlier periods, the limitation period has expired.

5. Is an amicable agreement possible before going to court? Absolutely. Propose mediation or a joint expert to recalculate the corrected floor area. This is cheaper and preserves the landlord-tenant relationship.

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