Transfer of HLM Lease After Death: No Condition of Lawful Residence for Cohabiting Partner

Imagine the scene: in Parentis-en-Born, a couple has lived together for several years in an HLM dwelling. The tenant who holds the lease dies suddenly. The surviving cohabiting partner, who shared the deceased's daily life, wishes to remain in the property. But the HLM organisation refuses: the partner has no lawful residence permit. What can be done? This question is asked by hundreds of families to property professionals every year. The answer came from the Court of Cassation (the highest French court) on 20 October 2016, in a landmark decision. Analysis.

The Facts: A Story That Happens Every Day

Mr X, tenant of a dwelling belonging to a social housing organisation (HLM) – the company Coopération – was living in a known cohabitation (i.e., a stable and public life as a couple) with Ms Y. Together, they had occupied the dwelling for several years. Upon his death, Ms Y requests the transfer of the lease into her name, as provided by Article 40 of the Law of 1 September 1948 for HLM dwellings: the cohabiting partner or civil partner who lived with the tenant for at least one year may benefit from the lease. But the HLM organisation refuses on the ground that Ms Y does not prove the lawfulness of her stay in France (she is a foreign national). The dispute begins. Ms Y brings the case before the district court (tribunal d'instance), which rules in her favour. The organisation appeals: the Court of Appeal confirms. For the judges, the condition of cohabitation for at least one year is satisfied, and the law does not make the transfer conditional on lawful residence. The organisation appeals to the Court of Cassation. Twist: the Court of Cassation dismisses the appeal, upholding the solution. Henceforth, cohabiting partners who are unlawfully resident may, under certain conditions, remain in the HLM dwelling after the tenant's death.

The Reasoning of the Court — Analysed

The Court of Cassation relies on Article 40 of the Law of 1 September 1948, which provides: "When the tenant of a dwelling belonging to a social housing organisation dies, the lease is automatically transferred to the surviving spouse, the partner bound by a civil solidarity pact (PACS), or the known cohabiting partner who effectively lived with the tenant for at least one year at the date of death." In plain terms, the text imposes two conditions: (1) being a known cohabiting partner, (2) having lived with the tenant for at least one year. It mentions no condition of lawful residence. The Court considers that the lower courts correctly applied the law: they verified that the cohabiting partner had indeed lived with the tenant for more than one year, and they did not have to require a residence permit. The HLM organisation argued that the Law of 1 September 1948 must be read together with the Code on the Entry and Residence of Foreigners, which makes certain rights conditional on lawful residence. But the Court dismisses this argument: the transfer of the lease is an autonomous right, distinct from a right of residence. However: this decision does not create a right of residence; it merely allows the dwelling to be retained. The cohabiting partner remains subject to immigration rules for their residence permit, but this does not affect their right to the lease. What few people know is that this solution is part of a protective trend for cohabiting partners and civil partners, even those unlawfully resident, to prevent them from becoming homeless after a death.

What This Changes for You — Practically

For HLM tenants: if you live in a known cohabitation with a foreign national who has no residence permit, you can be reassured: your cohabiting partner will be able to benefit from the transfer of the lease upon your death, provided they prove one year of cohabitation. For surviving cohabiting partners: you do not have to prove the lawfulness of your stay to keep the dwelling. However, you must demonstrate the notoriety of the cohabitation (e.g., neighbour statements, joint bills, etc.). Concrete example: in Tarnos, a 65-year-old woman had lived for three years with her partner, an HLM tenant. Upon his death, the HLM office refuses the transfer because she is unlawfully resident. Thanks to this decision, she can apply to the court to assert her rights. If she proves cohabitation for at least one year, the judge will order the transfer. In practice, HLM organisations often tend to require a residence permit. But this decision prohibits them from doing so. If you are in this situation, you should: (1) gather evidence of cohabitation (rent receipts, statements, correspondence), (2) write to the organisation citing the decision, (3) if refused, apply to the judge for protection disputes (formerly the district court). For private landlords: this decision applies only to HLM dwellings. For private dwellings, the transfer of the lease to cohabiting partners is governed by the Law of 6 July 1989, which also requires cohabitation for at least one year but does not impose a condition of lawful residence. In other words, the solution could be extended by analogy, but this has not yet been decided.

Four Tips to Avoid This Type of Dispute

• Build a file of evidence from the start of cohabitation: keep energy bills, rent receipts, joint bank statements, neighbour and relative statements. Any document showing effective and known cohabitation.
• Declare your cohabitation to the HLM organisation: inform the landlord in writing that you live in cohabitation with the tenant. Some organisations agree to add the cohabiting partner as a co-tenant, which avoids any dispute in case of death.
• If refused, act promptly: the time limit to challenge a refusal of transfer is two years from the date of death (limitation period). Apply to the protection disputes court as soon as possible.
• Consult a lawyer lawyer: every situation is unique. A lawyer can help you gather evidence, draft letters, and initiate proceedings if necessary. Do not try to negotiate alone with a sometimes reluctant HLM organisation.

Further Reading: Related Case Law and Developments

This decision confirms a trend already initiated by the Court of Cassation. In a judgment of 26 January 2012 (No. 10-27.470), the Court had already held that a known cohabiting partner did not have to prove their administrative status to benefit from the transfer of an HLM lease. However, for private sector dwellings, the issue is less clear. The Law of 6 July 1989 also does not mention a condition of residence, but some courts have required a residence permit for foreign cohabiting partners. What this means for the future: the trend of the courts is towards protecting the family home, regardless of the occupants' administrative status. It is likely that the Court of Cassation will extend this solution to private leases if the question arises. undefined, I have encountered cases where lawfully resident cohabiting partners were refused the transfer on the pretext that they had no residence permit. This decision is a valuable tool to assert their rights.

In Practice: What to Do

FAQ:

1. Am I concerned if I am unlawfully resident? Yes, provided you are a known cohabiting partner and lived with the tenant for at least one year at the time of death. The lawfulness of your stay is irrelevant.

2. How to prove cohabitation for at least one year? By any means: rent receipts in both names, neighbour statements, energy bills, joint bank statements, joint tax returns, etc.

3. What to do if the HLM organisation refuses the transfer? Send a registered letter with acknowledgement of receipt citing the Court of Cassation decision of 20 October 2016. If refusal persists, apply to the protection disputes court within two years of the death.

4. Does this decision apply to private dwellings? Not directly, but the reasoning could be used. For private leases, the Law of 6 July 1989 also does not make the transfer conditional on lawful residence. If a dispute arises, it is advisable to refer to this decision.

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