Reference decision: cc • No. 10-26.237 • 2012-01-25 • View the decision →
Imagine you own a flat in Sophia-Antipolis, with a tenant who sends you six successive registered letters to report water leaks. Each letter arrives the day before, sometimes late in the evening. You are exasperated, you want to take urgent action to stop what you consider harassment. But do you really have the right to apply to the urgent applications judge (accelerated procedure) to obtain an immediate halt to these communications?
This situation, although in a different context, recalls that experienced by SNCM in 2009 with its sailors. The company, faced with a series of strike notices (legal announcements of work stoppages) filed day after day, attempted to obtain their prohibition urgently. It considered that this multiplication constituted a manifestly unlawful disturbance (obvious and serious violation of the law).
The Court of Cassation (highest judicial court) ruled: no, sending successive strike notices for the same reason does not characterise any manifestly unlawful disturbance, unless the law expressly prohibits it or the employer proves a failure to comply with the obligation to negotiate. This decision, although concerning employment law, sheds new light on what constitutes - or does not constitute - a sufficiently serious disturbance to justify urgent judicial intervention. And this has concrete implications for you, as a property owner, tenant, or real estate professional.
The facts: a story as happens every day
It is November 2009. SNCM, a Mediterranean shipping company, faces a social conflict with the Marseille Sailors' Union. On Friday 20 November, around 10pm, the union sends by fax three strike notices for 26, 27 and 28 November. Imagine SNCM management's reaction: three days of disruption announced with such short notice.
But this is only the beginning. On Monday 23 November at 9:23pm, a fourth notice arrives, for 29 November. On Tuesday 24, a fifth for 30 November. On Wednesday 25, a sixth and final one for 1 December. In six days, six successive notices, all for the same claim reason. SNCM, exasperated, decides to act. It applies to the urgent applications judge of the Marseille High Court, requesting prohibition of these strikes on the grounds that they constitute a manifestly unlawful disturbance.
The urgent applications judge, seized urgently, rules in SNCM's favour on 25 November. It prohibits the strikes of 26, 27 and 28 November. The Marseille Sailors appeal. The Aix-en-Provence Court of Appeal, on 3 December 2009, confirms this decision. The union members do not give up: they appeal to the Court of Cassation (appeal to the highest court). This is where the case takes a decisive turn. The Court of Cassation, in its judgment of 25 January 2012, quashes (annuls) the lower courts' decisions. It considers that they made an error of law in characterising these successive notices as a manifestly unlawful disturbance.
undefined, I have encountered cases where property owners in Mandelieu wanted to take urgent action against tenants who multiplied written complaints about works. They invoked, like SNCM, a manifestly unlawful disturbance. But what distinguishes a simple nuisance from a disturbance justifying immediate judicial intervention?
The court's reasoning - dissected
The Court of Cassation analysed the situation with exemplary legal rigour. Its reasoning rests on two fundamental pillars. Firstly, it recalls that no legal provision prohibits sending successive strike notices for the same reason. In law, what is not prohibited is permitted. Secondly, it notes that SNCM did not prove that the Marseille Sailors had failed to comply with their obligation to negotiate in good faith.
The judges examined article L. 2511-1 of the Labour Code (which governs the right to strike). This article requires employees to respect a five-day notice period for public services, but does not limit the number of successive notices. The Court emphasises: in the absence of legal prohibition, the multiplication of notices cannot be considered unlawful (contrary to law). It specifies that only a failure to comply with the obligation to negotiate, provided for in article L. 2242-8 of the Labour Code, could potentially characterise such a disturbance.
SNCM argued that these successive notices constituted an abuse of right (use of a right for a purpose other than that for which it was created). It invoked the manifestly unlawful disturbance, a concept that allows the urgent applications judge to order urgent measures to stop an obvious violation of the law. But the Court of Cassation rejects this argument: without a legal basis expressly prohibiting the practice, and without proof of bad faith in negotiations, there is no manifestly unlawful disturbance.
In other words, the judges made a crucial distinction between what is annoying or strategic (successive notices) and what is illegal. They protected the right to strike, constitutionally guaranteed, against an overly extensive interpretation of manifestly unlawful disturbance. This decision confirms consistent case law: to take urgent action, there must be a clear and indisputable violation of the law, not simply an unpleasant or repetitive situation.
What this changes for you - concretely
But what exactly does this change for you, as a property owner, tenant, or real estate professional? This decision has practical implications well beyond employment law. It redefines the conditions for access to the urgent applications judge, a procedure you might need to use.
If you are a landlord in Sophia-Antipolis and your tenant sends you five successive letters to demand repair of a defective boiler, you will not be able to take urgent action for manifestly unlawful disturbance simply because the letters are multiple. As long as the tenant exercises their right to repair (article 1719 of the Civil Code) in good faith, the multiplication of requests is not unlawful. You will need to negotiate or commence proceedings on the merits, which is longer.
If you are a purchaser of a property in Mandelieu and the seller multiplies counter-proposals after signing the preliminary agreement, this does not necessarily constitute a manifestly unlawful disturbance. Unless they clearly violate a contract clause (for example by refusing to sign the final deed without valid reason), you will not be able to obtain an urgent injunction to sign. You will need to prove contractual fault.
If you are a co-owner and a neighbour files six successive complaints with the management company about noise nuisance, again, the multiplication alone does not justify urgent action for manifestly unlawful disturbance. You will need to demonstrate that these complaints are manifestly unfounded and constitute harassment, which is more difficult.
However, be careful: this decision does not mean that everything is permitted. It simply reminds that the urgent applications judge is not a miracle solution for every repetitive or annoying situation. There must be a clear violation of the law. Concretely, if you want to take urgent action, prepare solid evidence of unlawfulness, not just repetitiveness.
Four tips to avoid this type of dispute
- Document each exchange: Whether you are a property owner or tenant, keep written records (emails, registered letters) of all communications. Date them precisely. In case of dispute, this will help distinguish simple insistence from abusive behaviour.
- Respect legal time limits: If you need to notify something (like a strike notice or formal demand), check the minimum time limits required by law or contract. A failure to comply with time limits can, itself, constitute a manifestly unlawful disturbance.
- Prioritise negotiation: Before applying to the judge, attempt mediation or conciliation. The SNCM decision shows that absence of negotiation can be a determining factor. Propose a formal meeting to discuss points of disagreement.
- Consult a specialised lawyer before taking urgent action: The urgent applications judge requires strict conditions. A prior consultation (like those I offer at €45 for 30 minutes) can avoid a doomed procedure and guide you towards the best strategy.
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In-depth analysis: related case law and developments
The SNCM decision fits within consistent Court of Cassation case law on the concept of manifestly unlawful disturbance. Already in 2006, in judgment no. 05-40.900, it had ruled that repeated electricity cuts by a supplier did not constitute a manifestly unlawful disturbance in the absence of specific legal provisions prohibiting them. The reasoning is identical: no legal prohibition = no manifestly unlawful disturbance.
In contrast, in a judgment of 15 February 2011 (no. 10-10.040), the Court admitted manifestly unlawful disturbance when employees had occupied the company outside working hours, thus clearly violating the right of ownership. The distinction is clear: here, there was violation of a fundamental right (property), whereas in the SNCM case, the sailors were exercising a right (strike) in legal form.
What few people know is that this case law also influences property law. Courts apply the same reasoning: to obtain an urgent measure, there must be an obvious violation, not just insistence or procedural strategy. The trend is towards protection of fundamental rights (like the right to strike or the right to repair) against abusive urgent remedies.
For the future, this means that judges will probably be even more demanding regarding proof of manifestly unlawful disturbance. They will carefully distinguish between what is annoying and what is illegal. An evolution to follow, especially in a context where neighbourhood conflicts or tenancy disputes can lead to procedural escalation.
Summary and next steps
FAQ - Your questions, our answers:
1. My tenant sends me ten emails per day about works, can I take urgent action?
No, not simply for the multiplication. You need to prove that these emails constitute harassment or clearly violate a right (for example, if they contain threats). Otherwise, negotiate or commence proceedings on the merits.
2. A neighbour files complaint after complaint with the management company about my barbecue, what should I do?
First check if your barbecues comply with the co-ownership regulations. If yes, the multiplication of complaints alone does not justify urgent action against them. Document your compliance and propose a discussion.
3. Does this decision apply to disputes between property owners and developers?
Yes, the reasoning is transferable. If a developer multiplies delivery delays, this does not automatically constitute a manifestly unlawful disturbance. You need to prove a clear violation of the contract (for example, a delay exceeding the contractual period).
4. How much does an urgent procedure cost compared to proceedings on the merits?
The urgent procedure is generally quicker (a few weeks) and cheaper (lawyer's fees around €1,500 to €3,000 depending on complexity). Proceedings on the merits can last months or even years and cost €5,000 or more. But the urgent procedure is only possible if strict conditions are met.
5. What should I do if I am in a situation similar to SNCM's?
Consult a specialised lawyer immediately. They will assess whether your case truly presents a manifestly unlawful disturbance or whether it is better to prioritise negotiation or another procedure.
Do you find yourself in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of procedure - and often much more. Book an appointment →
