Reference Decision: cc • No. 14-23.726 • 2015-10-22 • View the decision →
Imagine that you are the owner of a flat in Grasse, in the Plan de Grasse district. You have been letting it for years to a married couple, Mr and Mrs Martin. Their rent of €850 arrives each month without issue. Then comes the divorce. The judgment awards the right to the lease (the ability to remain a tenant) to Mrs Martin alone. Mr Martin leaves the property. However, he did not give notice (terminate the lease) to the landlord. Who must pay the rent now? Mrs Martin alone? Both former spouses? And if Mrs Martin ceases to pay, can you pursue Mr Martin?
I encounter this situation regularly in my practice, whether in Grasse or Mont-de-Marsan. Landlords are often at a loss: they have a lease signed by two persons, but one of them has left the premises following a divorce. Must they await formal notice? Can they claim the rents from both? The answer was not always clear prior to this decision.
The judgment of the Court of Cassation of 22 October 2015 provides a clear answer which simplifies matters. In essence, as soon as the divorce judgment awards the right to the lease to one spouse alone, the other is no longer liable for the payment of rents, even without having given notice. But what does this actually change for you, whether landlord, tenant or property professional? This is what we shall analyse together.
The Facts: A Story as Common as Any
Let us return to our concrete example, inspired by the case adjudicated. In 1991, a landlord, let us call him Mr Dubois, lets a 70m² flat in Grasse, near the Palais des Congrès, to a married couple, Mr and Mrs Lambert. The lease (tenancy agreement) is signed by both spouses. For over twenty years, all goes well: the rent of €900 is paid regularly.
In 2012, Mr and Mrs Lambert divorce. The divorce judgment, handed down on 2 September 2012, awards the right to the lease of the family home (the rented flat) to Mrs Lambert alone. Mr Lambert leaves the property. However, he does not give notice (he does not formally terminate the lease) to the landlord, Mr Dubois. Mrs Lambert continues to occupy the flat, but begins to experience financial difficulties. The rents are no longer paid in full.
Mr Dubois, concerned, turns to both former spouses. He considers that since the lease was signed by both, they both remain responsible for the payment of rents until such time as notice is given. He initiates proceedings to claim the unpaid rents, amounting to nearly €6,000 in arrears, from both Mrs Lambert and Mr Lambert. The latter contests this: he argues that the divorce judgment terminated his status as tenant, therefore he no longer owes anything.
The dispute escalates. The courts of first instance and appeal ruled in favour of Mr Dubois, holding that each co-tenant (a person who shares a lease) remains liable for the rents as long as the lease is not terminated. However, Mr Lambert lodges an appeal in cassation. And it is here that the Court of Cassation, the highest judicial authority, will deliver a definitive ruling in 2015.
The Reasoning of the Court — Analysed
The Court of Cassation examined the legal basis. Normally, pursuant to Article 1751 of the Civil Code (which governs joint tenancy of residential leases), each co-tenant is jointly and severally liable for the payment of rents. In other words, the landlord may claim the entirety of the rent from either one. However, in this instance, the judges considered that this general rule must be qualified in the event of divorce.
The reasoning is as follows: the divorce judgment which awards the right to the lease to one spouse alone terminates the joint tenancy (the fact of being a tenant together) of the lease, whether it is legal (provided for by law) or conventional (provided for by the contract). From the transcription (the official registration) of this judgment, the spouse to whom the right to the lease has not been awarded is no longer a tenant. He therefore has no further obligation to pay the rents, even if he has not given notice.
The Court rejected the landlord's argument that formal notice was required. It held that the divorce, with the attribution of the lease to one party alone, constitutes a sufficient event to break the joint tenancy. This is a confirmation and refinement of prior case law. The magistrates thus protected the spouse who leaves the property, preventing him from remaining indefinitely financially liable.
Note, however: this decision applies only to residential leases (dwellings) and in the specific context of divorce with attribution of the lease.
