Undisclosed subletting: eviction of sub-tenant without prior notice

You are the owner of a flat in Grenoble, and you discover that your tenant has sublet a room to a student without informing you. Or worse, you have accepted it, but today you want to recover your property. How do you evict the sub-tenant? Do you have to serve the eviction order on him? A 2005 decision of the Court of Cassation clearly answers: the sub-tenant, even if approved, derives his right from the principal tenant. Therefore, if the head lease is terminated, the sub-tenant no longer has a title and can be evicted without prior notice of the order. Explanations.

The facts: a story like many others

The case begins in Bron, in the Lyon suburbs. An association, Loginter, rents residential premises from a landlord. Loginter then sublets these premises to an individual, Mr. D., with the landlord's consent. The landlord, tired of Loginter's rent arrears, obtains an interim order (urgent procedure) terminating the lease and ordering Loginter's eviction. The order is served (officially notified) on Loginter, but not on Mr. D., the sub-tenant. The bailiff proceeds with the eviction, and Mr. D. finds himself on the street, his furniture stored. Unhappy, he challenges the procedure. The Court of Appeal rules in his favour: it annuls the eviction on the ground that the eviction order had not been served on the sub-tenant. The landlord appeals to the Court of Cassation.

The reasoning of the court — dissected

The Court of Cassation quashes (annuls) the Court of Appeal's judgment. It relies on Article 503 of the Code of Civil Procedure (former article, now article 503 of the same code): a court decision is only enforceable (produces effect) against the parties on whom it has been served. But it adds a principle: the sub-tenant derives his right of occupation from the principal tenant. In other words, if the head lease is terminated, the sub-tenant's right automatically disappears. In short, the eviction of the principal tenant entails that of the sub-tenant, without the need to serve the order on the latter. The Court of Appeal had therefore violated Article 503 by requiring such service. What few people know is that the sub-tenant, even if approved, is not a party to the head lease contract. He therefore does not have to receive the eviction order personally. His right depends entirely on that of his immediate lessor. However, note that this does not mean that the sub-tenant is defenceless. He can always challenge his eviction by asserting his own rights, but the eviction procedure itself is not irregular.

What this means for you — concretely

If you are a landlord, this decision strengthens your position: to evict a sub-tenant, it is sufficient to obtain the eviction of the principal tenant and serve the judgment on the latter. No need to serve separately on the sub-tenant. Concrete example: in Bron, you rent a flat to a couple who sublet a room to a student. The couple has not paid their rent for three months. You obtain an interim order terminating the lease and ordering eviction. You serve it on the couple. The bailiff can evict everyone, including the student, without having served the order on him. But beware: if the sub-tenant has a written sublease contract and you have approved him, he may have his own rights (e.g., a notice period for termination). undefined, I have come across cases where sub-tenants have obtained damages because the landlord acted with violence or without respecting a notice period. If you are a principal tenant, you must inform your sub-tenant of the risks: if you are evicted, he will be too. If you are a sub-tenant, check whether the head lease is still in force: in the event of a dispute between the landlord and the principal tenant, you can be evicted without notice. Consider protecting yourself by asking for a copy of the head lease and rent receipts.

Four tips to avoid this type of dispute

• Landlord: Include in the lease a clause prohibiting subletting without your written consent. In the event of unauthorised subletting, you can seek termination of the lease and eviction of the tenant and sub-tenant, without having to serve the sub-tenant.
• Principal tenant: If you sublet, make a written sublease contract, but know that you remain solely responsible to the landlord. In case of arrears, eviction will affect both you and your sub-tenant.
• Sub-tenant: Before signing a sublease contract, ask to see the head lease and the principal tenant's rent receipts. Check that the landlord has authorised the subletting. Otherwise, you risk being evicted without notice.
• For everyone: In case of dispute, consult a lawyer specialising in property law. The eviction procedure is technical and mistakes can be costly. Sometimes a simple registered letter can resolve a conflict amicably.

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

Further reading: related case law and developments

This 2005 decision is part of a consistent line: the sub-tenant has no direct right against the landlord. In a judgment of 10 December 2003 (No. 02-13.678), the Court of Cassation had already held that the sub-tenant cannot rely on the right to remain in the premises (protection against eviction) if the head lease is terminated. Since then, case law has confirmed this position: in 2010, the Court specified that even if the sub-tenant is approved, he does not become a party to the head lease. In other words, the landlord has no contractual relationship with the sub-tenant. This principle is now well established, but note: some Courts of Appeal have sometimes tried to protect the sub-tenant by requiring notice, especially in cases of subletting for main residence. However, the current trend is to favour the legal certainty of the landlord, especially in the presence of forfeiture clauses (clauses providing for automatic termination of the lease in the event of breach).

Frequently asked questions

Can I evict a sub-tenant without having evicted the principal tenant? No, as the sub-tenant occupies by virtue of the principal tenant's right, you must first obtain the eviction of the principal tenant. The eviction of the sub-tenant is only a consequence.

Do I have to serve the eviction order on the sub-tenant? No, according to this decision, service on the principal tenant is sufficient. But it is prudent to leave a notice of passage or notify the sub-tenant to avoid incidents.

What happens if the sub-tenant has a written one-year sublease? The sublease contract only binds the sub-tenant and the principal tenant. If the head lease is terminated, the sub-tenant loses his title, even if his contract has not expired. He may however claim damages from the principal tenant.

Can I sublet without the landlord's consent? In the context of an unfurnished residential lease, subletting is prohibited without the landlord's written consent (Law of 6 July 1989). For furnished leases, subletting is free unless there is a clause to the contrary. But in practice, it is always better to obtain written consent to avoid complications.

What remedies does an evicted sub-tenant have? He can sue the principal tenant for breach of the sublease contract and obtain damages. He can also try to take action against the landlord if the latter has committed a fault (e.g., violence during the eviction).

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 →