Priority Preliminary Ruling on Constitutionality in Property Law: What Landlords Need to Know

Imagine: you are the owner of a flat in Le Cannet, and a tenant sues you for annulment of the lease, claiming that a law is contrary to the Constitution. You wonder: 'Can he really challenge the law in this way?' The priority preliminary ruling on constitutionality (QPC) allows any litigant to challenge a law that infringes his fundamental rights. But the question must be admissible. This is precisely what the Constitutional Council recalled in its decision of 7 July 2015.

This decision concerns a QPC raised before the Court of Cassation. The applicant argued that certain regulatory provisions violated the Declaration of the Rights of Man and of the Citizen of 1789. But the Constitutional Council refused to refer the question, on the ground that it required a prior determination of a purely regulatory matter. In other words, the QPC cannot be used to challenge a decree or order: only laws are concerned.

For property professionals, this distinction is crucial. Whether you are a landlord in Nice or a developer in Grasse, knowing when and how to raise a QPC can make the difference in a dispute. But beware: the procedure is very strictly regulated. This article explains everything in clear language, with concrete examples.

The facts: a story that happens every day

Mr X, owner of a property in Le Cannet, had entered into a residential lease with a tenant. Disagreements arose over the amount of service charges. The tenant sued Mr X before the tribunal d'instance of Grasse, seeking annulment of the lease on the ground that certain provisions of the implementing decree of the Law of 6 July 1989 (the law governing residential leases) were contrary to the Constitution. According to him, these regulatory provisions infringed the right to property guaranteed by the 1789 Declaration.

The tribunal d'instance referred the priority preliminary ruling on constitutionality to the Court of Cassation. The latter then referred the matter to the Constitutional Council to rule on the admissibility of the QPC. The Council examined whether the question concerned a legislative provision (a law passed by Parliament) or a regulatory text (a decree or order). Indeed, the QPC can only target a law, not a regulation.

The Constitutional Council found that the question raised by the tenant required a preliminary determination of whether the challenged provisions were regulatory or legislative in nature. However, the QPC is not the appropriate tool for challenging a regulation. Consequently, the question was declared inadmissible. The decision referred the case back to the Court of Cassation, which will have to decide the dispute without ruling on the constitutionality of the regulatory texts.

This judgment illustrates the complexity of constitutional procedures in property matters. The tenant, perhaps poorly advised, wasted time and money. So how can such pitfalls be avoided?

The reasoning of the court — explained

The Constitutional Council based its decision on Article 61-1 of the Constitution, which allows any litigant to challenge a law in force that infringes the rights and freedoms guaranteed by the Constitution. But this procedure has strict limits. In particular, the question must concern a legislative provision, not a regulatory act (decree, order, etc.). This is recalled by Article 23-5 of the Ordinance of 7 November 1958 on the organic law on the Constitutional Council.

In this case, the applicant challenged provisions contained in an implementing decree of the law. The Council considered that, to determine whether these provisions were legislative or regulatory, it was first necessary to establish their exact nature. However, this preliminary question fell within the assessment of the lower courts, not the Constitutional Council. In other words, the QPC was premature: it required a decision on a point outside the Council's jurisdiction.

This reasoning is consistent with settled case law. The Constitutional Council ensures that the QPC is not used to circumvent the rules on the distribution of powers between law and regulation. In short, if you want to challenge a decree, you must use an action for annulment before the Council of State, not a QPC.

But what does this mean for you? It means that, in a property dispute, you must identify precisely whether the text you are challenging is a law or a regulation. For example, rules on technical diagnostics (DPE, asbestos, lead) are often set by decree. If you believe they violate the Constitution, you cannot use the QPC. You will have to challenge the decree before the administrative court.

What this means for you — in practice

For the landlord

If you own a studio flat in Nice and a tenant threatens to raise a QPC to challenge the rent amount, you can be reassured: most rules on rents (control, revision) are set by law, but the practical details (such as reference indices) are often regulatory. The tenant cannot use the QPC to challenge a prefectural order setting the reference rent. You must therefore check the nature of the text being challenged.

For the tenant

Do you think the decree fixing the method of calculating service charges is unfair? You cannot challenge it by QPC. However, you can apply to the judicial court to argue that the decree is unlawful (action for annulment). But beware: time limits are short (2 months from publication).

For the buyer

Are you buying a house in Le Cannet and discover that the planning permission was granted on the basis of a local planning regulation that you believe is unconstitutional? Again, the QPC is not the right route. Challenging a PLU is done by an action for annulment before the administrative court.

undefined, I have come across cases where co-owners in Grasse wanted to challenge the ALUR law by QPC. However, the ALUR law is a law passed by Parliament: it is therefore subject to QPC. But the implementing decrees are not. So you must target the right provisions.

However, be careful: if you win your QPC, the law is repealed for everyone. It is a powerful tool, but very strictly regulated. Before embarking on it, consult a lawyer lawyer.

Four tips to avoid this type of dispute

• Identify the nature of the contested text: Before raising a QPC, ask yourself whether the text is a law (passed by Parliament) or a regulation (decree, order). Only a law can be challenged by QPC. For a regulation, use an action for annulment before the administrative court.
• Consult a lawyer at the first sign of dispute: A poorly worded QPC may be rejected without consideration of the merits. A lawyer specialising in constitutional property law can help you draft the question so that it is admissible.
• Respect time limits: The QPC must be raised 'in the course of proceedings' (a trial already underway). You cannot raise it prematurely. If you wait too long, the judge may declare it inadmissible.
• Prepare strong arguments on the infringement of rights: The QPC is not for challenging any law. You must demonstrate that the law infringes a constitutionally guaranteed right or freedom (e.g., right to property, freedom of contract). Mere disagreement is not enough.

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

Further reading: related case law and developments

The decision of 7 July 2015 is part of a line of cases where the Constitutional Council recalls the distinction between law and regulation. For example, in its decision no. 2013-336 QPC of 29 July 2013, the Council had already declared a QPC inadmissible concerning an implementing decree of the law on water, on the ground that the question raised was regulatory in nature.

This case law is consistent: the Constitutional Council does not rule on regulatory acts. Some commentators regret this rigidity, arguing that it deprives litigants of constitutional review of texts that can have a significant impact on their rights. But others point out that the administrative court is competent to review the legality of regulations, and that this division of powers is logical.

In the future, it is possible that the QPC procedure may be extended to regulations, but this would require a constitutional amendment. In the meantime, property professionals must keep this distinction in mind to avoid doomed appeals.

Frequently asked questions

Q: Can I challenge a decree by QPC?
A: No. The QPC only targets laws. To challenge a decree, you must bring an action for annulment before the Council of State within two months of its publication.

Q: What should I do if my tenant threatens a QPC against the lease?
A: First check whether the text he relies on is a law or a regulation. If it is a regulation, the QPC will be inadmissible. Otherwise, you must consider whether the law infringes his constitutional rights. In any case, consult a lawyer.

Q: What is the time limit for raising a QPC in a property case?
A: The QPC must be raised at the beginning of the proceedings, before any defence on the merits. After that stage, it may be declared inadmissible.

Q: What are the costs of a QPC?
A: The procedure itself is free, but lawyer's fees vary. Expect between €1,500 and €5,000 for a well-prepared QPC, depending on complexity.

Q: Can the QPC be used in co-ownership?
A: Yes, for example to challenge a provision of the ALUR law on voting on works. But beware: implementing decrees are not concerned.

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 →