Eviction after commodatum: the Court of Cassation ruling that blocks landlords

Imagine: you lend your house in Salon-de-Provence to a friend, without a written contract, for a few months. Months go by, the friend settles in permanently, and you want to recover your property. You start eviction proceedings, but the court says no. You try again with a new legal argument: unilateral termination of the loan of indefinite duration. A new trial. Another refusal. Why? Because the Court of Cassation, in a ruling of 24 September 2009, laid down a clear rule: the claimant must present in the initial proceedings all the grounds that he considers capable of supporting his claim. In other words, you are not entitled to bring out a new legal basis after a first failure, unless there is a new fact. A decision with very real consequences for landlords and occupants of loaned dwellings, often without a written lease. Let's analyse this case together and what it changes for you.

The facts: a story that happens every day

Mr B..., owner of a house in Istres, had lent his property to a couple, the Y... spouses, without a written contract or fixed duration. This is called commodatum, or loan for use: a contract by which a person (the lender) gratuitously hands over a property to another (the borrower) for a specified use, with the obligation to return it after use. Here, the use was not defined in time, and the loan was therefore of indefinite duration.

A few years later, Mr B... wanted to recover his house. He sued the Y... spouses to obtain their eviction. The court dismissed his claim, finding that the conditions of commodatum were not met or that the claim was ill-founded. Mr B... appealed, but the court of appeal upheld the dismissal. This first decision became final.

But Mr B... did not stop there. He brought a new court action, this time relying on the right of unilateral termination of the loan of indefinite duration, a different legal basis from that used in the first proceedings. He argued that, as lender, he could terminate the commodatum at any time, and therefore seek the eviction of the occupants. The court of appeal, seised of this second claim, declared it inadmissible. Why? Because, according to the Court of Cassation, Mr B... should have raised this ground in the first instance. In the absence of new facts — for example, a change in the occupants' situation or new conduct — the second claim sought the same ends as the first: to obtain eviction. However, the rule of res judicata (the principle that a final decision cannot be challenged) and the principle of concentration of grounds (obligation to submit all arguments in the first claim) prohibit reopening a trial on the same subject matter.

The reasoning of the court — analysed

The Court of Cassation upheld the judgment of the court of appeal, relying on two fundamental principles: res judicata (Article 1355 of the Civil Code: what has been decided by a final judgment cannot be re-judged) and the principle of concentration of grounds, derived from case law. The latter requires the claimant to present, in the first instance, all the legal and factual grounds that he intends to rely on in support of his claim. If he does not do so, he cannot raise them in a subsequent proceeding, unless a new fact arises.

In this case, the judges noted that the owners (the B... heirs) had already been dismissed from their eviction claim by a previous judgment. In their new action, they relied on the right of unilateral termination of the loan of indefinite duration, provided for in Article 1875 of the Civil Code (commodatum ends with the return of the thing, but if no duration is fixed, the lender may terminate it at any time). However, this ground already existed at the time of the first proceedings. The B... heirs should have raised it then. By not doing so, they lost the opportunity to invoke it subsequently.

The Court also rejected the owners' arguments based on violation of Article 6 § 1 of the European Convention on Human Rights (right to a fair trial) and Article 1 of Protocol No. 1 (right to property). It held that the principle of concentration of grounds does not infringe the right of access to a judge, as it is merely a procedural rule aimed at ensuring legal certainty and the efficiency of justice. The owners had the opportunity to present all their arguments in the first instance; they cannot complain about not having been able to do so afterwards.

In short, the Court of Cassation reminded that res judicata is not limited to the subject matter of the claim (eviction), but extends to grounds that could have been invoked. This is a strict rule for litigants, but it prevents endless litigation.

What this changes for you — practically

This decision has very practical implications for landlords, occupants, and even real estate professionals.

For landlords or lenders: If you lend a dwelling without a written contract, as in Istres or Salon-de-Provence, and you wish to recover the premises, you must immediately gather all possible legal grounds before bringing an action. For example, if the commodatum is of indefinite duration, you can rely on unilateral termination, but also on failure to return, abusive use, etc. If you forget a ground, you will not be able to raise it in a second trial. Imagine a landlord in Salon-de-Provence who lends his flat to a student for two years, without an end date. After five years, he wants to evict him. He brings a first proceeding relying on the end of the loan, but without mentioning unilateral termination. He is dismissed because the judge considers that the loan has not ended. He will not be able to bring a new action based on unilateral termination. He has lost definitively.

For occupants (borrowers): If you are living rent-free in a loaned property, this decision protects you against repeated actions by the landlord. If the landlord has already tried to evict you and has been dismissed, he cannot start again with a new argument, unless your situation changes (for example, you stop maintaining the dwelling). You can therefore live more peacefully, but be careful: if the landlord raised all grounds from the outset, he might succeed.

For professionals (estate agents, notaries, solicitors): This case law requires you to advise your clients with extreme caution. Before any court action, a complete inventory of possible legal grounds must be made. An oversight can be fatal. undefined, I have come across cases where owners lost a house because they failed to raise an obvious ground from the outset. This decision is a powerful reminder of the importance of an exhaustive judicial strategy from the first claim.

In other words, if you are in this situation, you must consult a lawyer solicitor before acting. The time and costs of a second proceeding are unnecessary if your first action is poorly prepared.

Four tips to avoid this type of dispute

• Draw up a written contract for any property loan. Even between friends or family, a written document specifying the duration, conditions of return and grounds for termination avoids any ambiguity. In the event of a dispute, you will have a clear basis.
• Consult a solicitor before bringing court proceedings. A lawyer will identify all relevant legal grounds (unilateral termination, non-performance of obligations, etc.) and present them in the first claim. This will prevent you from losing rights by omission.
• Gather all evidence from the outset. Correspondence, witness statements, photographs, any evidence demonstrating failure to return or abusive use must be collected before the first instance. Evidence discovered after the trial cannot be used in a second action if it already existed.
• Anticipate new facts. If you lose a first action, only restart proceedings if a new fact arises (for example, the occupant stops paying charges, or sublets without authorisation). Otherwise, your claim will be inadmissible.

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

Further analysis: related case law and developments

This decision is part of a consistent line of Court of Cassation rulings on the principle of concentration of grounds. Already, in a decision of 7 July 2006 (No 04-20.380), the Court had held that the claimant must present all legal and factual grounds in the first instance. The 2009 decision merely confirms and clarifies this rule. However, another chamber of the Court, in a decision of 28 May 2008 (No 07-13.466), seemed more flexible by allowing a new ground on appeal if the legal basis was different. But the civil chamber ruled in favour of strict application.

Since 2009, this case law has been regularly applied, particularly in matters of residential leases and loans for use. The courts are very vigilant: they check whether the new claim is identical in its object and whether the grounds could have been raised earlier. The trend is therefore towards strictness, which reinforces legal certainty but requires litigants to prepare meticulously.

For the future, it is likely that this rule will extend to other areas, such as disputes between co-owners or boundary actions. In any event, it reminds us that justice does not like endless litigation: once a judge has ruled, it is very difficult to go back on his decision.

Frequently asked questions

Can I evict someone occupying my house without a lease, even if I have already lost a case? No, if you have already been dismissed from an eviction claim, you cannot start again with a new legal ground, unless a new fact arises (for example, the occupant causes damage).

What exactly is commodatum? It is a gratuitous loan for use. You lend a property to someone who must return it after use. If no duration is fixed, the lender can terminate it at any time, but must give reasonable notice.

What are the time limits for acting after the end of the loan? There is no fixed time limit, but you must act within a reasonable time after requesting return. In eviction cases, the time limit may be a few months. Consult a solicitor to assess your situation.

How much does an eviction proceeding cost? Solicitor's fees vary between €1,500 and €3,000 for a first instance, plus court costs (bailiff, etc.). An unnecessary second proceeding can double the bill.

What if I am an occupant without title and the landlord wants to evict me? You can invoke commodatum if the loan was gratuitous. But if the landlord proves that the loan has ended, you must leave. It is better to negotiate an amicable departure or a written lease.

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. Make an appointment →