Repossession of Agricultural Lease: Prior Declaration Not Required at Time of Notice

Imagine: you are the owner of an agricultural plot in Tarnos, let to a tenant farmer for years. Your son wishes to take over the farm to establish himself. You give him notice (you terminate the lease) in due form, but the tenant challenges the validity of the notice on the grounds that you did not prove that you had submitted a prior declaration (an administrative formality) at the time of the notice itself. Result: months of litigation, legal fees, and uncertainty about being able to pass on your property.

This question is asked by hundreds of owners each year: at what exact moment must I prove the prior declaration for my notice to be valid? The answer can change everything: the validity of your notice, the date of repossession, and ultimately the ability to transfer the farm to a family member.

In a judgment of 25 May 2023 (No. 21-25.083), the Court of Cassation (the highest French court) ruled: the beneficiary of the right of repossession does not have to prove submission of the prior declaration as of the effective date of the notice. It is sufficient to do so before bringing the property into cultivation. A decision that reassures owners, but requires increased vigilance regarding deadlines.

The Facts: a story like those that happen every day

Mr X, an owner in Mont-de-Marsan, had leased an agricultural plot (a contract for the rental of agricultural land) to a tenant farmer. In 2016, he gave notice to the tenant for the expiry of the lease, so that his son could take over the farm. The notice stated that the son benefited from a right of repossession (the right to retake the leased property to farm it himself) under the family property provisions, provided for by Article L. 331-2, II of the Rural and Maritime Fishing Code (a text that allows the takeover of a family farm without prior authorisation to farm, but with a simple declaration).

The tenant contested the notice before the tribunal paritaire des baux ruraux (the specialised court for agricultural lease disputes), arguing that Mr X had not proved submission of the prior declaration (an administrative declaration to be made before being allowed to farm) at the time of the notice. According to him, without this proof, the notice was void.

The court ruled in favour of the tenant, annulling the notice. Mr X appealed (he asked a court of appeal to re-hear the case). The Pau Court of Appeal upheld the annulment, finding that the prior declaration should have been submitted before the effective date of the notice. Mr X then appealed to the Court of Cassation (he referred the case to the Court of Cassation to ensure that the law had been correctly applied).

Twist: the Court of Cassation quashed (annulled) the decision of the Court of Appeal, ruling that it had misinterpreted the law. The case was referred back to another court of appeal, in Bordeaux, for rehearing.

The Reasoning of the Court — Analysed

The Court of Cassation relied on Article R. 331-7 of the Rural and Maritime Fishing Code (the regulation that specifies the procedures for the prior declaration). This text, in the version applicable to the dispute (resulting from Decree No. 2015-713 of 22 June 2015), provides that, when the operation is subject to the derogatory regime of the prior declaration for the repossession of family property (Article L. 331-2, II of the same Code), the beneficiary of the right of repossession is not required to prove submission of this declaration as of the effective date of the notice, but only before bringing the property into cultivation.

In clear terms, the law distinguishes two moments: the notice (the act by which the owner terminates the lease) and the bringing into cultivation (the moment when the re-tenant actually begins to farm the land). The prior declaration must be submitted, but it can be done after the notice, provided it is done before the re-tenant begins to work the land.

The Court of Appeal, however, had required the declaration to be made before the notice. The Court of Cassation reminds that this is an error: "it follows from Article R. 331-7 [...] that the beneficiary of a right of repossession is not required to prove submission of this declaration as of the effective date of the notice, but only before bringing the property into cultivation". In other words, the owner can give notice, and then, within a reasonable time before the actual repossession, submit his declaration.

What few people know: this interpretation is a confirmation of previous case law. The Court of Cassation is not innovating; it is restating an already established principle. But it does so forcefully, by censuring a Court of Appeal that had departed from it. This is a leading decision that binds all courts.

Beware, however: the prior declaration remains mandatory. If the re-tenant begins to farm without having submitted it, he exposes himself to penalties, including the inability to benefit from certain aids or a fine. But for the validity of the notice, it is not a prerequisite.

What This Changes for You — Concretely

For the owner-lessor (the one who lets out): you can now give notice for a family repossession without having to immediately provide proof of submission of the prior declaration. This gives you time to prepare your administrative file after the notice. Concrete example: if you give notice for 31 December 2024, you can submit your prior declaration in January 2025, provided that your son does not begin to farm until after this submission. In Mont-de-Marsan, where agricultural leases are common, this flexibility is valuable for owners who want to transfer their farm without haste.

For the tenant (the sitting farmer): beware, you can no longer challenge a notice solely on the ground of lack of prior declaration at the time of the notice. But you can still check that the declaration was indeed made before the property was brought into cultivation. If the owner lets his son farm without a declaration, you can take action to have the repossession annulled or claim damages (compensation for the loss suffered).

For the re-tenant (the one who wants to farm): you must imperatively submit your prior declaration before starting to work the land. Do not neglect this formality, even if you have already given notice. undefined, I have encountered cases where re-tenants, believing that the notice was sufficient, began to farm without a declaration and found themselves in an irregular situation, with serious financial consequences.

Four Tips to Avoid This Type of Dispute

• Anticipate the submission of the prior declaration: even if the law does not require it at the time of the notice, submit it as early as possible. This avoids any risk of challenge and secures your repossession. Allow about 2 to 3 months to obtain the receipt (acknowledgment of receipt) of the declaration.
• Draft a precise and reasoned notice: the notice must mention the beneficiary of the right of repossession (your son, your daughter, etc.) and refer to Article L. 331-2, II of the Rural Code. A poorly drafted notice can be annulled, independently of the prior declaration.
• Keep all evidence: keep a copy of the notice with acknowledgment of receipt, the submitted prior declaration, and the receipt of the declaration. In case of a dispute, these documents are essential.
• Consult a lawyer lawyer before initiating proceedings: each case is unique. A lawyer will help you comply with deadlines and avoid pitfalls. For example, in Mont-de-Marsan, the courts are very attentive to the form of notices.

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Further Analysis: Related Case Law and Developments

This decision is part of a consistent line of the Court of Cassation. Already in 2018 (Civ. 3e, 15 March 2018, No. 17-14.792), the Court had ruled that the prior declaration is not a condition for the validity of the notice, but a condition for bringing into cultivation. The 2023 judgment confirms this position, specifying it for the particular case of family property.

However, some Courts of Appeal, such as that of Pau in this case, had a more restrictive reading, requiring the declaration before the notice. Now, the case law is clear: the notice and the declaration are two separate acts, with different timings.

For the future, owners can be reassured: the trend is towards securing family repossessions. However, the legislature could amend the texts to require an earlier declaration. Stay informed of legislative developments.

Summary and Next Steps

FAQ:

1. Can I give notice without having made the prior declaration? Yes, the declaration can be made after the notice, but before the property is brought into cultivation.
2. What if the tenant challenges my notice? You must prove that the declaration was made before the property was brought into cultivation. If you made it after the notice, you are in order as long as the re-tenant has not started farming.
3. What deadlines must be observed? The notice must be given at least 18 months before the end of the lease (Article L. 411-47 of the Rural Code). The prior declaration must be made before the property is brought into cultivation, without a fixed deadline but within a reasonable time.
4. What is the cost of proceedings to challenge a notice? Legal fees can range from €1,500 to €5,000 depending on complexity. Mediation (an amicable agreement with the help of a third party) may cost less and be faster.

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 →