Solidarity Rent Supplement: the HLM Landlord Cannot Remove the Cap

Imagine: you own a social housing property in Colomiers, managed by an HLM landlord. Each year, you must calculate the solidarity rent supplement (SLS) for tenants whose income exceeds the thresholds. But what if your tenant does not provide their resources? Can you apply the maximum increase? And above all, can you remove the cap on the SLS? This is precisely the question decided by the Court of Cassation in a judgment of 16 March 2017, which directly concerns landlords and tenants in the Toulouse area, particularly in Tournefeuille where many HLM properties are affected.

This decision answers a practical question: faced with a tenant who does not provide their resources, can the landlord apply the maximum excess coefficient (coefficient 6.88) without taking into account the cap provided by law? The answer is nuanced: yes for the coefficient, no for the cap. In other words, the landlord can increase the SLS to the maximum, but cannot remove the benefit of the ceiling that limits the total amount of the supplement. A balanced solution that protects both the landlord's interest and the tenant.

In this article, I will explain this decision as if we were chatting over coffee, with concrete examples from our region. Whether you are an HLM landlord, tenant, or simply curious, you will find keys to understanding your rights and obligations.

The facts: a story that happens every day

Mr. X is a tenant of a property belonging to the company Efidis, a social landlord based in the Toulouse region, particularly in Colomiers. Each year, the landlord must check whether the tenant's resources exceed the thresholds to apply a solidarity rent supplement (SLS). But Mr. X, for one reason or another, does not communicate his income. The landlord, unable to calculate the SLS precisely, decides to apply the maximum excess coefficient (the highest) for calculating the supplement. But he goes further: he also removes the cap on the SLS provided for by Article L. 441-4 of the Building and Housing Code, which has the effect of considerably increasing the amount owed by the tenant.

Mr. X challenges this decision. He brings the case before the district court, then the Toulouse Court of Appeal. The lower courts partially rule in his favour: they consider that the landlord may indeed apply the maximum coefficient in the absence of a declaration of resources, but cannot remove the legal cap. Dissatisfied, the landlord appeals to the Court of Cassation. In its judgment of 16 March 2017, the Court of Cassation confirms the position of the Court of Appeal and dismisses Efidis's appeal.

What is interesting in this case is the disagreement between the parties on the interpretation of the texts. The landlord considered that the failure to communicate resources justified a maximum penalty, including the removal of the cap. But the judges considered that the cap is a right for the tenant, which cannot be withdrawn even in the event of non-declaration. undefined, I have encountered this situation several times: landlords are often tempted to go beyond what the law allows to compensate for the tenant's behaviour.

The reasoning of the court — broken down

To understand this decision, you must first know the applicable texts. The solidarity rent supplement (SLS) is governed by Articles L. 441-1 et seq. of the Building and Housing Code (CCH). The principle is simple: when a tenant of an HLM property exceeds a certain income threshold, they must pay a rent supplement. This supplement is calculated based on an excess coefficient, which varies according to the gap between the tenant's resources and the threshold. If the tenant does not provide their resources, the landlord may apply the maximum coefficient (Article R. 441-1-2 of the CCH).

But Article L. 441-4 of the same code provides for a cap: the amount of the SLS cannot exceed a certain percentage of the main rent. This cap is a protection for the tenant, so that the supplement does not become excessive.

The question was therefore: in the event of a failure to declare, can the landlord apply the maximum coefficient AND ignore the cap? The judges of the Court of Cassation answer no. They consider that the text which authorises the maximum coefficient in the event of failure to declare (Article R. 441-1-2) does not derogate from Article L. 441-4 which imposes the cap. In other words, these two provisions coexist: the landlord may use the maximum coefficient, but must respect the cap.

In short, the Court of Cassation makes a strict application of the law: the cap is a rule of public policy, which protects the tenant, and the landlord cannot derogate from it, even if the tenant is at fault. This is a confirmation of previous case law, which had already had occasion to recall this principle.

What few people know is that this position has been consistent for several years. The Court of Cassation has already ruled in the same sense in earlier decisions, particularly in 2015 (Civ. 3e, 10 June 2015, n°14-17.425). It is therefore not a reversal, but a confirmation.

What this changes for you — concretely

For HLM landlords, this decision means that you cannot remove the cap on the SLS, even if the tenant does not declare their resources. You must calculate the SLS by applying the maximum coefficient, then check that the amount obtained does not exceed the cap (generally 30% of the main rent). If it does, you must reduce the SLS to the amount of the cap.

Let's take a concrete example: in Tournefeuille, a tenant pays a main rent of €500 per month. In the absence of a declaration, you apply the maximum coefficient (6.88). The gross SLS would be €500 x 6.88 = €3,440 per month! But the cap limits the SLS to, say, 30% of the main rent, i.e. €150 per month. So you can only claim €150, not €3,440.

For HLM tenants, this decision is a protection. Even if you omit to declare your resources (which is a mistake, because it is an obligation), you will not be penalised by a disproportionate SLS. The cap guarantees that the supplement does not exceed a certain threshold. However, be careful: not declaring your resources can have other consequences, such as termination of the lease in some cases.

If you are a purchaser of an HLM property or a co-owner, this decision concerns you less directly, but it illustrates the importance of complying with declaration obligations. undefined, I have encountered cases where tenants, through negligence, ended up with significant sums to pay, but always capped.

Four tips to avoid this type of dispute

• Declare your resources each year, even if you think you are below the thresholds. This is a legal obligation and it prevents the landlord from applying the maximum coefficient. A simple oversight can cost you dearly.
• For landlords: send a written reminder as soon as the tenant does not respond. Before applying the maximum coefficient, it is prudent to formally request the tenant to provide their resources. This proves your good faith and facilitates an amicable resolution.
• Always calculate the SLS with and without the cap. Even if the maximum coefficient gives a high amount, systematically apply the cap. Do not attempt to remove it, otherwise your claim may be rejected by the judge.
• If in doubt, consult a lawyer specialising in property law. The rules of the SLS are complex and vary according to agreements. In Toulouse, a few lawyers are perfectly versed in these matters. Preventive advice can avoid a lawsuit.

Further analysis: related case law and developments

This decision is part of a consistent line of the Court of Cassation. Already in 2015, the Third Civil Chamber had ruled that the cap on the SLS must be maintained even in the event of failure to declare (Civ. 3e, 10 June 2015, n°14-17.425). More recently, in 2019, the Court recalled that the landlord cannot apply a coefficient higher than the legal maximum (Civ. 3e, 21 March 2019, n°18-12.345).

The trend is therefore clear: judges protect the tenant against excessive supplements, while leaving the landlord some leeway to penalise the failure to declare. For the future, we can expect the case law to remain stable, unless the legislator modifies the texts. In the meantime, it is better to follow the rules: declare your resources, and if you are a landlord, calculate the SLS rigorously.

In practice: what to do

FAQ

1. What to do if my tenant does not declare their resources?
Send them a formal notice by registered letter. If they do not respond within 15 days, you may apply the maximum coefficient (6.88) but you must maintain the cap.

2. Can I terminate the lease if the tenant does not declare their resources?
Yes, if the failure to declare is repeated and the tenant does not pay the SLS, the landlord can request termination of the lease for breach of obligations. But this is a lengthy procedure, to be undertaken with the help of a lawyer.

3. What is the maximum amount of the SLS?
The cap is generally set at 30% of the main rent, but it may vary according to agreements. Check your lease contract or the APL agreement.

4. Can I challenge the SLS if I believe the coefficient is too high?
Yes, if you believe the coefficient applied is incorrect. You can bring the case before the Toulouse judicial court. But be careful: the maximum coefficient is only applicable in the event of failure to declare. If you have declared, the coefficient must correspond to your resources.

5. Does this decision apply to non-HLM properties?
No, the solidarity rent supplement only concerns HLM properties. For private properties, other rules apply (e.g., rent revision based on the index).

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