Indexed rent without a clause: limitation and restitution by the tenant

Imagine: you have been a tenant of a flat in Parentis-en-Born since 2010. Every year, your landlord increases the rent by applying the reference index for rents (IRL). You pay without question, thinking it is legal. But one day, while re-reading your lease, you notice that no indexation clause appears. What can you do? This decision of the French Supreme Court of 6 July 2017 answers this question by specifying the tenant's rights and the limits of the limitation period.

In short, the tenant can claim restitution of overpaid sums, but cannot go back more than five years before their claim. In other words, if you have paid an indexed rent without a contractual basis, you can recover part of those increases, but not all of them. This solution, apparently favourable to tenants, contains a trap: the limitation period.

In this article, we will analyse this decision and see what it changes concretely for landlords and tenants in Mimizan, Parentis-en-Born and elsewhere. How should you react if you are affected?

The facts: a story that happens every day

Mrs A., a tenant of a flat, saw her rent increase each year by application of the reference index for rents (IRL). Her lease, signed in 2005, did not contain any indexation clause. In 2014, she sued her landlord to fix a new rent and, by way of counterclaim, sought restitution of sums unduly paid. The landlord, for his part, argued that indexation was automatic by virtue of the law of 6 July 1989.

The Court of Appeal ruled in favour of Mrs A. in principle: in the absence of a clause, indexation is unlawful. However, it calculated the restitution debt on the basis of the initial rent, without taking into account the successive indexations. The landlord appealed to the Supreme Court, arguing that the five-year limitation period should apply from each payment.

The Supreme Court quashed the appeal decision: it held that the tenant could indeed claim restitution, but that the five-year limitation period (Article 2224 of the Civil Code) runs from each payment. In other words, to calculate the overpayment, you must take the rent paid at the starting point of the limitation period, not the initial rent. This significantly reduces the amount to be repaid.

The reasoning of the court — analysed

The central question was: can an indexation not provided for in the lease be challenged after having paid it for years? The Supreme Court answers yes, but with a time limit. It relies on Article 2224 of the Civil Code, which sets the extinctive limitation period at five years for personal or movable actions. This text, applicable since the 2008 reform, replaces the former thirty-year limitation period.

In law, each payment of indexed rent constitutes a claim for restitution of undue payments (Article 1302-1 of the Civil Code). The tenant can claim the overpayment, but only for the five years preceding his claim. The Court specifies that the calculation must be based on the rent paid at the starting point of the limitation period, not the original rent. What few people know is that the limitation period does not apply uniformly: it runs from each payment.

The judges therefore censured the Court of Appeal which had calculated the debt starting from the initial rent, without taking into account indexations prior to the non-prescribed period. However, be careful: this solution is not a reversal of case law, but a confirmation of the classic application of limitation to successive obligations.

Concretely, if the tenant has paid an indexed rent for 10 years, he can only claim the increases of the last 5 years. And these increases will be calculated in relation to the rent in force at the starting date of the limitation period, that is, the rent paid at that time, which already includes previous indexations.

What this changes for you — concretely

For tenants: if you discover that your lease does not provide for indexation, you can claim restitution. But hurry! The limitation period cuts off your right for rents paid more than 5 years ago. Example: in Mimizan, if you pay €600 per month since 2015, and the rent was €500 in 2015, you can only claim the difference between the current rent and the rent of 2019 (if you act in 2024). Do your calculations with a lawyer.

For landlords: this decision partially protects you. If you have applied an indexation without a clause, you will have to repay overpayments from the last 5 years, but not the older ones. This is a sword of Damocles, especially if your lease is old. undefined, I have come across cases where landlords in Parentis-en-Born had to repay several thousand euros, but never beyond 5 years.

For purchasers of a rented property: check the lease before buying. A missing indexation clause can cost you dearly in restitution. Do not hesitate to ask the seller for a sworn statement of rents received and indexations applied.

For real estate professionals: be vigilant when drafting leases. A simple omission of the indexation clause can lead to disputes. Use updated templates.

Four tips to avoid this type of dispute

• Check your lease: Re-read the rent revision clause. It must mention the reference index (IRL) and the revision date. If it is absent or vague, consult a lawyer.
• Keep evidence: Keep all amendments, receipts and correspondence. In case of dispute, you will need to prove the amount of rents paid.
• Act quickly: If you are a tenant and discover the absence of a clause, do not wait. The 5-year limitation period runs from each payment. The longer you wait, the less you recover.
• Negotiate an amendment: Landlord, if you forgot the clause, propose an amendment to the tenant to regularise the situation. This avoids a trial and retroactive restitution.
• Consult a lawyer: Each situation is unique. A professional will help you calculate the limitation period and the amount due.

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

Further reading: related case law and developments

Before this decision, the Supreme Court had already held that indexation without a clause is void (Civ. 3e, 6 May 2009, No. 08-13.625). But the issue of limitation remained unclear. Some Courts of Appeal applied the thirty-year limitation period for nullity actions, others the five-year limitation period for restitution of undue payments. The judgment of 6 July 2017 puts an end to this uncertainty: it is the five-year limitation period that applies, from each payment.

This solution is consistent with the jurisprudential trend to limit restitution actions in time, to secure contractual relations. Today, courts strictly apply Article 2224 of the Civil Code. In the future, we can expect tenants to be more vigilant and act quickly, while landlords will be encouraged to regularise their leases.

Checklist before taking action

1. Identify the date of your lease: If it predates 2008, the limitation period may be different (old 30-year period for certain actions).
2. Calculate the prescribed period: Subtract 5 years from the date of your claim. You can only claim rents after that date.
3. Gather receipts: For each month, note the rent paid and the rent that should have been paid without indexation.
4. Send a formal notice: Before suing, write to the landlord to request an amicable refund. This can avoid a trial.
5. Consult a lawyer: Have him check the limitation period and the calculation. An error can cost you thousands of euros.

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