Lapse of Proceedings: When a Discontinuance Saves Your Legal Action

Imagine: you are the owner of a flat in Beaupréau-en-Mauges. You give notice to your tenant for repossession in favour of your son. The tenant contests this notice. While the case is ongoing, you commence another set of proceedings for forfeiture of the lease due to non-payment. Then you discontinue this second set of proceedings. Result: months pass, and suddenly your opponent raises the lapse of proceedings (extinction of the proceedings for inactivity) in the first case. What to do? This decision of the Court of Cassation of 13 May 2015 provides a crucial answer.

The question every litigant asks: can I rely on acts done in another set of proceedings to avoid the lapse of my own? The answer is yes, provided the two sets of proceedings are linked by a 'direct and necessary link of dependency'. In clear terms, if the outcome of one conditions the other, the acts of the first interrupt the lapse period of the second.

In this case, the Court held that the discontinuance of the forfeiture proceedings, accepted by the other party, constituted a procedural step (active procedural act) interrupting the lapse period of the proceedings contesting the notice to quit. A lifeline for landlords who bring multiple actions!

The facts: a story that happens every day

Mr X, owner in Beaupréau-en-Mauges, leases a dwelling to Ms Y. On 5 November 2009, he serves a notice to quit for repossession in favour of his son, Mr Y. Ms Y contests this notice and commences proceedings before the tribunal d'instance of Angers. In parallel, the landlord brings another set of proceedings for forfeiture of the lease for non-payment of rent. The two sets of proceedings are therefore linked: if the notice is annulled, the lease continues; if forfeiture is ordered, the notice becomes moot.

In the course of the proceedings, the landlord discontinues the forfeiture proceedings, and Ms Y accepts this discontinuance. For nearly three years, no step is taken in the proceedings contesting the notice. On 4 June 2012, the landlord requests reinstatement of the case. Ms Y then raises the lapse of proceedings: according to her, more than two years have passed without any procedural act, so the action is extinguished.

The landlord retorts that the discontinuance and its acceptance, which occurred in the forfeiture proceedings, constitute steps that interrupted the lapse period. The Angers Court of Appeal agrees, and the Court of Cassation confirms. Result: the notice is validated, and the son can repossess the dwelling.

The reasoning of the court — analysed

The legal basis is Article 386 of the Code of Civil Procedure, which provides that proceedings lapse when no step is taken for two years. But the Court of Cassation has always admitted that certain circumstances can interrupt this period. Here, it innovates by extending this interruption to acts performed in other proceedings.

The judges' reasoning is as follows: for an act performed in proceedings A to interrupt the lapse of proceedings B, the two sets of proceedings must have a 'direct and necessary link of dependency'. In other words, the outcome of one must condition the other. This is the case here: if the notice is annulled, the lease continues, rendering the forfeiture unnecessary; if forfeiture is ordered, the notice becomes void.

The Court specifies that the discontinuance and acceptance of discontinuance are 'procedural steps' within the meaning of Article 386. It does not matter that they took place in other proceedings: they manifest the parties' will not to let the case die out. This is a teleological interpretation (based on the purpose of the law): lapse is intended to penalise inertia, not to trap litigants who are actively acting.

The Court therefore dismisses the tenant's appeal, upholding the appellate judgment. This is a confirmation of case law, but with an important precision: the link of dependency must be direct and necessary, not merely accessory.

What this changes for you — concretely

For landlord-owners: you can now secure your multiple actions. If you have forfeiture proceedings and another set contesting a notice, do not hesitate to take a step in one (discontinuance, submissions, etc.) to interrupt the lapse of the other. However, beware: the link of dependency must be clear. If in doubt, it is better to consult a lawyer.

For tenants: this decision reminds you that a discontinuance in a connected set of proceedings can revive the other. If you are in proceedings and the landlord discontinues a parallel action, check whether this may impact your case. Do not underestimate the importance of monitoring all files.

Example with figures: in Trélazé, a landlord had two sets of proceedings: one for arrears of €4,500, the other for notice. After a discontinuance in the first, the second was held not to have lapsed. Cost saved: a new claim of €2,000 in costs and six months' delay.

If you are in this situation, you should: 1) identify the ongoing proceedings, 2) check their interdependence, 3) act in one before the expiry of the two-year period, even symbolically (discontinuance, submissions, etc.).

Four tips to avoid this type of dispute

• Keep a timeline of deadlines: note the date of the last step in each set of proceedings. As soon as 18 months have passed, act.
• Use acts from one set for the other: if you have several linked files, coordinate your steps. A simple letter to the court may suffice.
• Consult a lawyer before discontinuing: a poorly negotiated discontinuance can be interpreted as a pure and simple abandonment. Ensure it is accepted and formalised.
• Anticipate links of dependency: from the outset, identify whether your actions are linked. For example, a notice and forfeiture for arrears are often dependent.

Further analysis: related case law and developments

Before this decision, the Court of Cassation had already admitted that extra-procedural acts (mediation, settlement) could interrupt lapse (Civ. 2e, 12 July 2012, No. 11-20.475). But it had never extended this rule to acts of another set of proceedings. This judgment therefore marks a significant evolution.

Since 2015, several decisions have confirmed this orientation, particularly in matters of commercial leases and co-ownership. Courts are increasingly inclined to assess the link of dependency flexibly. However, beware: the link must be 'direct and necessary', not merely convenient. For example, a dispute between a tenant and his landlord over the amount of rent is not necessarily dependent on a forfeiture action.

For the future, this case law paves the way for a more dynamic conception of lapse, less formalistic. Litigants can hope that judges will favour substance over form.

Frequently asked questions

What is the lapse of proceedings? It is the extinction of judicial proceedings when no party takes a step (procedural act) for two years. It is automatic, but the judge must declare it upon request.

Can I interrupt the lapse by a simple letter? Yes, a letter to the court or to the opponent's lawyer can constitute a step, provided it manifests a will to continue the proceedings. It is better to have it served by a bailiff.

What to do if my opponent raises lapse? You can rely on any act performed in a connected set of proceedings, as in this case. But you must prove the direct and necessary link of dependency.

What are the risks if lapse is declared? The proceedings are extinguished, but you can re-sue if the limitation period (often 5 years) has not expired. You lose the benefit of acts already done (expert reports, etc.) and must pay new costs.

Does this decision apply to commercial leases? Yes, the reasoning is general. Any property dispute may be concerned, provided the proceedings are dependent.

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 →