Illegal Rent: The Offence Continues as Long as You Receive It, the Court of Cassation Reminds in 1966

Imagine the scene: in Pau, in a flat in the city centre, Mrs Dupont has been paying a monthly rent of €600 for three years. One day, she discovers that the legally permitted rent is only €350. Her landlord, Mr Martin, imposed an excessive rent from the start, without any justification. Furious, she takes the matter to court. But what if the landlord did not impose this rent at the outset, but increased it during the tenancy? How far can he be pursued? This is precisely the question that the Court of Cassation decided in 1966, in a ruling that still carries authority today.

This decision, handed down on 27 April 1966 under number 65-91.580, answers a fundamental question: is the offence of illegal rent (letting at a price above the legal ceiling) committed only at the time the lease is concluded, or does it continue as long as the undue rent is received? The judges chose the latter option, with considerable implications for landlords and tenants, particularly within the jurisdiction of the Pau Court of Appeal, which covers the Pyrénées-Atlantiques and Hautes-Pyrénées.

In clear terms, the 1966 ruling means that a landlord cannot escape liability by arguing that the rent was freely accepted at the start, or that the increase occurred after the tenant moved in. As soon as the rent exceeds the legal ceiling, the offence is committed each time the rent is collected. A lesson in caution for landlords, and a shield for tenants.

The Facts: A Story That Happens Every Day

The case begins in Paris, but it could just as easily have taken place in Tarbes or Pau. A landlord, whom we shall call Mr X, lets a flat subject to the law of 1 September 1948 (a law that caps rents for older housing). The authorised rent is 68 francs per month (about €10 in today's money, but a significant sum at the time). However, Mr X demands and receives 220 francs per month, more than three times the amount. The tenant pays under duress, then files a complaint.

The landlord is prosecuted for having imposed an illegal rent. Before the Paris Court of Appeal, he is convicted. But he appeals to the Court of Cassation. His argument is subtle: according to him, the offence under Article 51 of the 1948 law is only committed if the excessive rent was imposed on the tenant before he moved in, for example when the lease was signed. However, in his case, the rent was set at 220 francs from the start, and the tenant accepted. There was therefore no fraudulent imposition after the tenant moved in. He adds that the offence requires a concealment manoeuvre or fraud, which did not exist here since the rent was clearly stated.

The Court of Cassation rejects this reasoning. It recalls that Article 51 makes no distinction as to whether the illegal rent was imposed before or after the tenant moved in. The offence continues as long as the illegal rent is received. In other words, each month the landlord collects an excessive rent, he commits a new offence. This solution is particularly harsh for landlords, as it considerably extends the period during which the offence is committed.

The Reasoning of the Court — Analysed

To understand this decision, one must delve into the wording of Article 51 of the Law of 1 September 1948. This article provides: "Shall be punished by a fine... anyone who has imposed or attempted to impose on a tenant a rent higher than the lawful rent." The key word is "imposed". The landlord argued that imposition could only occur at the time the contract was concluded, when the tenant has no choice but to accept. But the Court of Cassation says no: the imposition continues as long as the tenant pays under economic duress, i.e., as long as he has not been able to stop the collection of the excessive rent.

The basis for this solution is twofold. On the one hand, the letter of the law does not distinguish, and the judge cannot add a condition that is not there. On the other hand, the spirit of the law is to protect tenants against any form of rental exploitation, whether before or after moving in. What few people know is that this decision was rendered at a time when the 1948 law was still widely applied, but it retains its full relevance today for housing still subject to this regime.

In practice, the Court of Cassation rejected the landlord's argument that the offence was not committed because the rent had been set from the outset. It upheld the conviction on the basis that the offence was continuous: each collection of the illegal rent constitutes an act of imposition. The lower court judges (the Court of Appeal) had already found that the landlord had imposed a rent of 220 francs instead of 68 francs, and the High Court validated their analysis. However, note that this decision only concerns rents subject to the 1948 law, but its reasoning may inspire other disputes over excessive rents.

What This Means for You — Concretely

For landlord lessors, this decision is a warning. If you own a property subject to the 1948 law (still about 200,000 properties in France, particularly in old city centres), you cannot increase the rent beyond the legal ceiling, even if the tenant agrees. And if you do, you risk criminal prosecution for each month of collection. For example, in Pau, a landlord who lets a two-room flat on Rue Carnot with a capped rent of €300 but demands €500 commits an offence each month. He may be fined and ordered to repay the overpaid amounts.

For tenants, this decision is a weapon. If you discover that your rent exceeds the legal ceiling, you can take action without time limit, because the offence is renewed at each due date. You can apply to the court to have the overpayment established and claim repayment of the undue sums for the last 5 years (standard limitation period). For example, Mrs Dupont in Tarbes, who pays a rent of €550 for a property capped at €380, can claim €170 per month for 5 years, i.e., €10,200.

If you are a buyer of a building subject to the 1948 law, you must check the rents charged. You could inherit disputes if you continue to collect excessive rents. Co-owners are not directly concerned, but if the managing agent or a co-owner landlord is convicted, it may affect the co-ownership's cash flow.

Four Tips to Avoid This Type of Dispute

• Check the applicable ceiling: Before setting or increasing a rent, consult the habitable floor area, date of construction, and geographical area. For a 1948 law property in Pau, the basic rent is calculated using complex coefficients. Do not rely on oral estimates; consult a professional.
• Do not take the tenant's acceptance as a carte blanche: Even if the tenant signs a lease stating a high rent, this does not protect you. The offence is committed as soon as the rent is illegal, regardless of consent. When in doubt, prefer a rent below the ceiling.
• Keep all supporting documents: If you believe the rent is lawful (e.g., because the property has been improved), keep invoices for works, diagnostics, and correspondence. In the event of a check, you will be able to demonstrate your good faith.
• Regularise as soon as you have a doubt: If a tenant informs you that the rent is excessive, do not ignore it. Propose an immediate reduction and repayment of overpayments. This may avoid criminal prosecution, even if the offence has already been committed.

Further Reading: Related Case Law and Developments

This 1966 decision is part of a line of case law protecting tenants. One can cite an earlier ruling of the Court of Cassation of 18 March 1959 (Bull. crim. No. 174) which had already held that the offence of illegal rent is continuous. Subsequent case law has confirmed this approach, particularly regarding limitation: the starting point of the limitation period for the public prosecution (3 years for delictual matters) runs from the last collection of the illegal rent, not from the initial setting.

However, this rigorous solution was nuanced by the Law of 6 July 1989, which, for housing not subject to the 1948 law, created a mechanism for setting rent based on the reference index, with specific rules. But for the older housing stock, the 1966 decision remains the reference. The trend of the courts is to protect the tenant, considered the weaker party. undefined, I have encountered cases where landlords in Bordeaux or Montpellier had to repay years of undue rents, with interest, for failing to comply with these rules.

What You Absolutely Must Remember

FAQ:

1. Can I be prosecuted if the tenant accepted the rent? Yes, acceptance does not cover unlawfulness. You can be criminally prosecuted and ordered to repay the sums.
2. What is the time limit to take legal action? For the tenant, the action for repayment of excessive rents is subject to a 5-year limitation period (Article 2224 of the Civil Code). For the public prosecution, 6 years from the last collection (limitation period for a continuous offence).
3. What should I do if I am a landlord and discover that my rent is illegal? Immediately reduce the rent to the legal ceiling and repay overpayments for the last 5 years. This may limit criminal prosecution.
4. Does this decision apply to housing subject to the 1989 law? No, not directly. But the principle that an abusive rent can be challenged at any time also exists in other frameworks (concept of manifestly excessive rent).
5. Can I challenge a rent I accepted 10 years ago? Yes, because the offence is continuous. You can claim the last 5 years of overpayment, even if the lease began 10 years ago.

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