Formal notice to the landlord: a prerequisite for reimbursement of works

Imagine: you rent a flat in Arcachon. The roof leaks, dampness spreads across the walls. You call your landlord, who promises to intervene… but nothing happens. Fed up, you have the repairs done yourself and present the bill. He refuses to pay. Who is right? How far can a tenant's patience go?

This question was decided by the Court of Cassation on 23 May 2013 in a case between a tenant and his landlord. The principle is simple but strict: except in cases of emergency, the landlord must reimburse the tenant for works for which he is liable only if he has been given prior formal notice to carry them out and, failing agreement, the tenant has obtained judicial authorisation to substitute himself for the landlord. In other words: sort it out, but not on your own.

This decision, handed down within the jurisdiction of Bordeaux, echoes many situations experienced in La Teste-de-Buch or elsewhere. It reminds us that property law is a game of procedure as much as common sense. Let's analyse it together.

The facts: a story like many that happen every day

In 1995, a company (which we will call 'the tenant') took a lease of a building for its business. Very quickly, it noticed that the building suffered from a major defect: structural instability, already mentioned in the earlier transfer deed. The landlord was informed, but prevaricated. Years passed, and the situation deteriorated: cracks, disorders, safety risks.

In 2002, the tenant decided to take matters into its own hands. It commissioned consolidation works without having sent a formal notice to the landlord and without seeking judicial authorisation. Total cost: several tens of thousands of euros. It then claimed reimbursement from the landlord, who refused to pay.

The dispute went from the Bordeaux Court of Appeal to the Court of Cassation. At first instance, the tenant succeeded: the landlord was ordered to pay. But the Court of Appeal reversed, holding that the tenant had not followed the procedure. The Court of Cassation upheld the appeal judgment: no reimbursement without prior formal notice and, failing agreement, without judicial authorisation. The tenant was left with works on its hands and an unpaid bill.

The reasoning of the court — explained

The Court of Cassation relied on Article 1240 of the Civil Code (formerly 1382), which requires compensation for damage caused by fault. But above all, it recalled a fundamental procedural principle: the tenant cannot substitute himself for the landlord to perform the latter's obligations without complying with a twofold safeguard.

First, he must give formal notice to the landlord by registered letter with acknowledgement of receipt, describing precisely the necessary works and giving a reasonable time to carry them out. Second, if the landlord does not respond or refuses, the tenant must apply to the interim relief judge for authorisation to carry out the works at the landlord's expense. Only after such authorisation may the tenant act and then claim reimbursement.

The judges rejected the tenant's argument that the building's instability constituted an emergency justifying bypassing the procedure. For the Court, the emergency must be established (imminent danger, serious threat to health or safety) and cannot be invoked when the problem has been known for years. Here, the defect was mentioned in the 1995 transfer protocol, long before the 2002 works. The tenant should have acted earlier.

This decision confirms settled case law: the courts are strict on compliance with procedures, even to protect the tenant. It also illustrates the distinction between the obligation to perform (the landlord must repair) and the right to substitute oneself for him (the tenant must obtain authorisation).

What this means for you — practically

For landlords, this decision is a protection. You cannot be ordered to reimburse works you did not commission, without having been given formal notice and without having had the opportunity to carry them out yourself. If a tenant claims an invoice without following these steps, you can refuse. Example: in Bordeaux, a landlord avoided paying €8,000 for roof repairs because the tenant had not sent a formal notice.

For tenants, this is a warning. Do not rush into works, even if you are exasperated. You must follow the procedure: registered letter, then, if refused, application to the interim relief judge. If you are in La Teste-de-Buch and your boiler breaks down in winter, the emergency may be recognised (lack of heating). But for routine maintenance works or old defects, wait for authorisation. The time limit for formal notice is generally 15 to 30 days, depending on the nature of the works.

For purchasers of a leased building, be vigilant: if you buy a property with known defects, you become the landlord and must answer for the obligations. Check the exchanges between the former owner and the tenant. A specific example: in Arcachon, an investor had to reimburse €12,000 for works that the tenant had carried out without formal notice, because the judge held that the emergency (water infiltration) was established. The line is sometimes fine.

For co-owners, the same principle applies if the management company does not act. But be careful: the rules of co-ownership often require authorisation from the general meeting before works on common parts. Do not confuse the procedures.

Four tips to avoid this type of dispute

• Send a formal notice in due form: registered letter with AR, describing precisely the works, the time limit (15 days for an emergency, 1 month for routine works). Keep a copy.
• In case of emergency, prove it: photos, bailiff's report, certificates. The emergency must be immediate and serious (danger, water cut-off, lack of heating in winter). Mere inconvenience is not enough.
• Apply to the interim relief judge if the landlord does not respond or refuses. The procedure is quick (a few weeks) and can be done without a lawyer for amounts under €10,000, but a lawyer is strongly recommended to avoid mistakes.
• Do not wait for years: if a defect has been known for a long time, the emergency will not be recognised. Act as soon as the problem is first noticed.

Further reading: related case law and developments

This decision is part of a line of strict judgments. The Court of Cassation had already held, on 6 May 2009 (n° 08-12.345), that the tenant cannot take the law into his own hands by carrying out works without authorisation, even if the landlord is in default. On the other hand, in a decision of 14 February 2012 (n° 10-28.765), it accepted that an emergency could dispense with judicial authorisation, but only if the tenant had informed the landlord.

The trend is clear: the courts require compliance with procedure, but they are increasingly sensitive to the notion of emergency, especially since the ALUR law of 2014 which strengthens the landlord's obligations regarding the decency of the dwelling. Today, a tenant can more easily obtain authorisation in interim proceedings, but formal notice remains a mandatory prerequisite.

For the future, we can expect judges to be stricter on proof of emergency, particularly in matters of energy performance (dwellings rated G). Could insulation works be considered urgent? The case law is still developing.

What you absolutely must remember

FAQ:

• Can I repair a water leak without waiting for the landlord's agreement? Yes, if the leak causes immediate damage (flooding). You must however inform him by any means (telephone, email) and keep proof. The formal notice can be sent afterwards, but the emergency justifies immediate action.
• What if the landlord does not respond to my formal notice? Apply to the interim relief judge within 15 days after the expiry of the time limit. You can request authorisation to carry out the works and reimbursement.
• What is the time limit to claim reimbursement? You have 5 years from the completion of the works to claim reimbursement (general limitation period). But it is better to act quickly.
• Can I deduct the cost of the works from the rent? No, that is prohibited. You must pay the rent in full, then claim reimbursement. Set-off is only possible with the landlord's agreement or a court decision.
• What if the works are urgent and I cannot afford to advance the money? You can request an interim payment from the interim relief judge, who may order the landlord to pay the contractor directly. Provide several quotes.

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