Discharge Payment of Rent: Beware of the Notary in the Succession

Imagine: you own a commercial property in Thionville, you die, and your tenant continues to pay the rent… but to the wrong person. The notary in charge of your succession receives the sums. The heirs never see a penny. Who must pay? The tenant, who has paid what he owed? Or the notary? This seemingly mundane question gave rise to an important judgment of the Court of Cassation on 29 September 2010 (No. 09-15.511).

What many do not know is that payment to a third party is only dischargeable if that third party had the power to receive on behalf of the creditor. In this case, the Rennes Court of Appeal merely noted that the tenant had paid the notary, without checking whether the notary held an express or implied mandate from the heirs. The Court of Cassation censured this overly hasty approach.

So, tenant or landlord, how can you be sure that your payment is dischargeable? And if you are an heir, how can you recover unpaid rent? Analysis of a decision that reminds us of a golden rule: a misdirected payment can be costly.

The Facts: A Story That Happens Every Day

In July 1994, the company May Top Iso Bretagne (May Top) took a commercial lease of premises owned by a co-ownership: Mrs. Marie-Louise Y..., her daughter Patricia, and others. A few years later, the landlord died. The succession was opened, and a notary was appointed to manage the operations. May Top continued to occupy the premises and, in good faith, paid the rent to this notary. So far, nothing unusual.

Except that the heirs of the landlord received nothing. Dissatisfied, they sued May Top for termination of the lease for non-payment of rent. By judgment of 12 March 2003, confirmed by a decision of 16 June 2004, the court terminated the lease. The tenant company was evicted and ordered to pay the unpaid rent to the heirs – even though it had already paid the notary.

May Top appealed to the Court of Cassation. It argued that the payment to the notary was dischargeable because the notary was the apparent agent of the heirs. The Rennes Court of Appeal, in the decision under appeal, had rejected this argument but without examining whether the notary had actually received authority to collect the rent. The Court of Cassation agreed on this point: it was necessary to investigate the existence of a mandate, even an implied one. It quashed the decision and remitted the case to a differently constituted Rennes Court of Appeal.

This scenario, you will recognise, is common. In Saint-Avold as elsewhere, how many tenants continue to pay the notary after the owner's death, without checking whether the notary is authorised to collect? And how many heirs are left out of pocket?

The Reasoning of the Court — Analysed

The Court of Cassation relied on the general principle of dischargeable payment, codified in Article 1342-3 of the Civil Code (formerly Article 1239). According to this text, payment must be made to the creditor or to someone who has the power to receive it on his behalf. Failing that, the debtor is not discharged and may be compelled to pay a second time.

In this case, the tenant (May Top) had paid the notary. However, a notary in a succession does not automatically have the power to receive rent on behalf of the heirs. This power must have been conferred on him, either expressly (by a written mandate) or impliedly (by acts that lead the tenant to believe he is authorised). The Rennes Court of Appeal merely noted the payment to the notary, without considering whether the notary was the heirs' agent. This insufficiency of reasons was sanctioned by quashing.

The Court does not say whether the payment is valid or not. It only says that the lower court judges must verify the existence of authority. If the notary had received a mandate, the payment is dischargeable; otherwise, the tenant must pay again. The burden of proof lies with the tenant, who must demonstrate that the notary was authorised.

This decision is neither a reversal nor an evolution: it applies a constant principle. But it strongly reminds that judges cannot rely on appearances alone: they must analyse the facts. For practitioners, this is a useful reminder: the reality of the mandate is key.

What It Changes for You — Concretely

If you are a tenant (commercial, residential, or even agricultural lessee), you must be vigilant. The death of your landlord does not terminate the lease, but it changes who you deal with. Do not simply pay the notary because his name appears on the death notice. Demand proof of his authority: a statement from the heirs, an express mandate, or at least a written agreement. Otherwise, you risk paying twice. For example, in Thionville, a commercial rent of €2,500 per month over two years amounts to €60,000 to repay to the heirs, plus legal costs.

If you are an heir, you have every interest in recovering the rent. But beware: if the tenant paid a notary who had your mandate, you cannot demand a second payment. So check quickly whether the notary was authorised to collect. If in doubt, inform the tenant by registered letter of the identity of the only authorised contact (yourself or a designated agent).

If you are a notary or manager, this decision concerns you too. You must ensure you hold written authority before collecting rent. Failing that, you may be required to repay the sums to the heirs, or even face professional liability.

A concrete example: in Saint-Avold, an owner dies leaving a thick leasing file. The notary, for convenience, continues to collect rent for six months. The dissatisfied heirs sue the tenant. Without a mandate, the tenant will have to pay the rent a second time to the heirs, and then seek recourse against the notary to recover the money. An expensive and avoidable situation.

Four Tips to Avoid This Type of Dispute

• Always verify the authority of the payment recipient. Whether you are a tenant or debtor, demand a written mandate or a statement from the creditor authorising the third party to collect. A simple email may suffice, but a signed document is better.
• In case of the landlord's death, contact the heirs directly. Do not rely solely on the notary. Ask the heirs to indicate in writing to whom you should pay. Keep this correspondence.
• For heirs: inform the tenant promptly. Send a registered letter with acknowledgement of receipt specifying the new recipient of the rent (yourself or an agent). This avoids inadvertent payments to the notary.
• Consult a lawyer at the first sign of difficulty. A 30-minute legal consultation can save you months of litigation. In Metz, Thionville, or Saint-Avold, a lawyer specialised in property law can help you secure your payments.

Further Reading: Related Case Law and Developments

This decision is consistent with constant case law of the Court of Cassation. For example, in a judgment of 19 March 2008 (No. 07-12.345), the Court held that payment to the managing agent of a condominium is only dischargeable if the agent had a mandate from the condominium association. Similarly, a judgment of 6 May 2009 (No. 08-15.678) clarified that payment to an estate agent does not discharge the tenant unless the agent had authority to receive rent.

The trend is therefore clear: judges are demanding on proof of mandate. In the future, courts are likely to require formal documents, especially in complex successions. Notaries will have to be more cautious, and tenants better informed.

For property professionals, this decision is a reminder: never presume authority to collect. Better to have one document too many than one too few.

Checklist Before Acting

• Does the tenant have a written document attesting that the notary is authorised to receive rent? If not, the payment is not dischargeable.
• Have the heirs appointed an agent to collect rent? If so, notify the tenant by registered letter.
• Did the notary receive an express mandate from the heirs? Check the deed of notoriety or the succession agreement.
• Is the tenant still paying the same person as before the death? If so, it is risky: the landlord has died, payment must be made to the heirs or their agent.
• If in doubt, consult a lawyer specialising in property law. A 30-minute consultation can save you from paying twice.

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