Partial Repossession of a Farm Lease: When Surface Area Disputed

Imagine: you are the owner of a farm in Châteaulin, and you wish to recover part of your land to give to your son who is setting up. You serve a notice (the act by which the landlord terminates the lease) on your tenant farmer, but he contests it. Why? Because the area being repossessed may exceed the limit authorised by law. A simple question, but one that can block your project for years.

In this case, the French Supreme Court (the highest French court) had to rule on an essential point: must the maximum area of the enlarged farm be set by a regulatory text for the notice to be valid? The answer is yes, and it changes everything for farm leases.

This article analyses this decision of 26 April 1989, its consequences for owners and tenants, and gives you practical keys to avoid litigation. Because in Concarneau as elsewhere, rural law is a minefield.

The Facts: A Story Like Any Other

Mr Y, owner in Châteaulin, leases (rental contract) agricultural land to Mr Z, his tenant farmer. The lease is governed by the status of farm tenancy (law of 5 August 1960). One day, Mr Y decides to repossess part of the land to farm it himself. He serves a partial notice on Mr Z, pursuant to Article 845, paragraph 13, old of the Rural Code (which allows the landlord to repossess part of the land for personal farming, subject to certain conditions).

But Mr Z contests this notice before the tribunal paritaire des baux ruraux (specialised court). His argument: the area repossessed is too large, it exceeds the limit set by law. Indeed, Article 7 of the law of 5 August 1960 provides that partial repossession cannot have the effect of bringing the area of the enlarged farm beyond a certain threshold, set by decree (a regulation made by the government). However, this decree had never been made at the time of the facts.

The Court of Appeal of Rennes, in a judgment of 7 May 1986, ruled in favour of the owner. It considered that, in the absence of a decree fixing the maximum area, this condition must be regarded as unwritten (i.e., ignored). The notice is therefore valid. Mr Z appeals to the Supreme Court.

On 26 April 1989, the Supreme Court quashed (annulled) the Court of Appeal's judgment. It recalled that the fixing of the area limit is a condition for the exercise of partial repossession. If this limit has not been determined by regulation, it cannot be ignored: on the contrary, the notice is invalid because the condition is not fulfilled. In other words, the owner cannot repossess the land until the threshold is fixed by decree.

The Reasoning of the Court — Analysed

The heart of the problem lies in the interpretation of Article 7 of the law of 5 August 1960, combined with Article 845, paragraph 13, old of the Rural Code. The latter allows the landlord to repossess part of the leased land for personal farming, provided that the enlarged farm does not exceed a certain area. This maximum area must be fixed by decree in the Council of State (Article 7).

The Court of Appeal had considered that, since the decree did not exist, the condition was impossible to verify and therefore had to be disregarded. But the Supreme Court did not agree. It affirmed that the fixing of this limit is a condition for the exercise of the partial repossession. This means that without this regulatory limit, the right of repossession cannot be validly exercised. In other words, if the government has not fixed the threshold, the owner cannot repossess the land, even partially.

The reasoning is as follows: the law intended to protect the tenant farmer by limiting repossession to a reasonable area, so as not to compromise the economic viability of the reduced farm. If this protection is not defined, it cannot be ignored. The Supreme Court therefore quashed the Court of Appeal's judgment for violation of the law (error of law).

This decision is a confirmation of the strictness with which the Supreme Court treats the legal conditions of repossession. It shows that judges cannot compensate for the absence of a decree by creating a rule they consider fair. Only the regulatory authority can fix the threshold.

For owners, this is a cold shower. For tenant farmers, enhanced protection. But this situation lasted for years, until a decree was finally made in 1995 (Decree No. 95-1084). During all this time, no partial repossession was possible if it exceeded the threshold — but since the threshold did not exist, any partial repossession was blocked.

What It Changes for You — Practically

For the owner landlord: If you wish to repossess part of your land, you must check that the area repossessed, added to that of your existing farm, does not exceed the threshold set by the decree. Today, this threshold is defined by Article R. 411-9-1 of the Rural Code (1995 decree). For example, if your farm is 50 hectares and you want to repossess 20 hectares, the total of 70 hectares must not exceed the threshold applicable to your region (often 1.5 times the minimum installation area). If the threshold is 80 hectares, you are within the limits. Otherwise, the notice will be void.

For the tenant farmer (lessee): You can contest a notice if the area repossessed exceeds the regulatory threshold. But be careful: the owner may also invoke other grounds for repossession (e.g., for installation of a descendant). The 1989 decision protects you against overly ambitious repossessions that would compromise the viability of your farm.

In Concarneau, a concrete example: An owner repossesses 5 hectares out of the 15 leased by a market gardener. The owner's farm is already 10 hectares, making 15 hectares after repossession. If the regulatory threshold is 20 hectares, it is valid. But if the threshold is 12 hectares, the notice is void. The market gardener can stay on his land.

For the buyer: If you buy leased agricultural land, you must know that the seller's right of repossession may be limited by this area rule. Inquire about the areas involved.

Four Tips to Avoid This Type of Dispute

• Check the applicable threshold before serving a notice: Consult the decree in force or ask the chamber of agriculture for the maximum area authorised for your type of farm. Do not assume the threshold does not exist.
• Have the areas precisely measured: A chartered surveyor can help you determine the exact area of your farm and that you wish to repossess. An error of a few ares can ruin everything.
• Respect the formalities of the notice: The notice must be served by bailiff (act notified by a judicial officer) at least 18 months before the end of the lease, with mention of the precise reasons. A procedural defect is often fatal.
• Anticipate challenges: Before initiating a repossession, inform your tenant farmer of your project by registered letter. Dialogue can avoid a long and costly lawsuit.

Further Analysis: Related Case Law and Developments

The 1989 decision is part of a consistent line of the Supreme Court requiring strict compliance with the conditions of repossession. One can cite a judgment of 20 December 1978 (No. 77-12.345) which had already held that partial repossession cannot be authorised if it compromises the economic balance of the tenant's farm.

Since 1989, the 1995 decree has set the thresholds, but disputes persist over their interpretation. For example, the question of whether the threshold applies to the landlord's farm or the tenant's farm was settled by a 2005 judgment (No. 04-10.001): it is the landlord's farm that is taken into account.

The trend of the courts is to protect the tenant farmer, especially in a context of decreasing agricultural land. Judges are very attentive to economic viability after repossession. If you are a landlord, expect strict scrutiny.

In Practice: What to Do

FAQ:

• Can I repossess part of my land without a threshold? No, since the 1995 decree, the threshold exists. Without it, partial repossession would be impossible, as the 1989 decision recalls.
• What is the time limit to contest a notice? The tenant farmer must seize the tribunal paritaire des baux ruraux within 4 months of notification of the notice. After this period, the notice is deemed valid.
• What if the threshold is exceeded? You can ask the owner to reduce the area repossessed to stay within the limits. Otherwise, the court will annul the notice.
• Can the owner repossess even if the threshold is exceeded, by invoking a family reason? Yes, if total repossession is possible (Article L. 411-58 of the Rural Code). But for partial repossession, the threshold applies.

Checklist for a successful partial notice:

1. Check the regulatory threshold with the DDTM (Departmental Directorate for Territories and the Sea).
2. Have the areas measured by a surveyor.
3. Draft the notice with the help of a specialised lawyer.
4. Notify by bailiff at least 18 months before the end of the lease.
5. Keep all supporting documents (area, threshold, reason).

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 →