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T Perrin C
T Perrin C, Consultant: information en droit du travail
Category: French Law
Satisfied Customers: 1380
Experience:  8 years as a Senior judge at Paris Conseil de Prud'hommes (Paris Industrial Tribunal)
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Dear sir/madam On the 1st April 2012 we let our property to

Resolved Question:

Dear sir/madam
On the 1st April 2012 we let our property to a tenant who is now in arrears with her rent, 10 payments out of 11 have been late and the tenant is telling me there is nothing I can do under French law.

We had a proper lease drafted by our local Notaire and we asked him to protect us as much has he possibly could, in the lease there is a clause résolutoire that states if the rent is not paid on the 1st of each month then the leases can be deemed has cancelled.
Initially my tenant was only going to rent our top floor apartment in our property but then asked if she could take over our business being a Bar restaurant, I agreed that she could rent the space and I actually gave her the business for free not including the assets, but I agreed to leave my assets until she could afford to purchase her own, the tenant is now refusing access to retrieve my assets and also to inspect my property.
I sent her a registered letter asking when would be convenient to inspect our property and she agreed on a date being 12th March 2013, so we drove 1300km from Hamburg to Le croisty in the Morbihan only for her to say she has not got time and refused us entry.
I now need to know what we can do regarding eviction and retrieval of our personal assets that she is refusing to return.

Mark
Submitted: 1 year ago.
Category: French Law
Expert:  T Perrin C replied 1 year ago.
You will have to go to court to obtain an eviction order.
Regarding your personal belongings you will be able to retrieve what was listed in the inventory the tenant signed when she entered the premises.
Customer: replied 1 year ago.

can I not prepare a commandement de payer and have it served by the bailiff.

Expert:  T Perrin C replied 1 year ago.
Of course. Actually since she seem to have been a bad payer for months, you should already have done so. But it will be of little effect in itself I fear. Just an element in the file you will submit to the court. Is the lease a residential or a business lease? If a business lease, is it a bail précaire or what is commonly called a bail 3-6-9?
Customer: replied 1 year ago.

It is a mixed lease, I knew I would have to go to court, it was the procedure I required the advice on.

Customer: replied 1 year ago.

I have just had a reply from my lawyer here in Germany is reply is below, does this sound correct to you.


 


Dear Sir,


 


I have reviewed your email and the lease contract which is quite clear actually.


 


I understand that the tenant has not paid the rent in March. So the first step would be to prepare a “commandement de payer” and have it served to the tenant by a bailiff. The tenant will have to pay within a month at the reception of this “commandement de payer”. If he does, the contract is considered as cancelled and if the tenant refuses to leave the place, he will be condemned to pay 100 euros per day of delay. But instead of waiting endlessly until he finally decides to leave, you can ask the judge to order his eviction in application of the lease contract a month after the “commandement de payer” if the tenant does not pay. This is a quite quick procedure.

Expert:  T Perrin C replied 1 year ago.
Your lawyer in Germany is right about almost everything but the fact that it is a speedy procedure. Eviction procedures, when dealing with residential premises or part residential premises take between 6 to 9 months on average.
Customer: replied 1 year ago.

in that case the lease will be nearly finished, so no point in taking it to court,


 


Never will I let a property in France again, the Laws are not for the landlord at all, it appears that the tenant can do exactly what they want.


 


Anyway I have a detailed procedure of what to do from my Lawyer now, that is all I really wanted from you.


 


Thanks anyway.

Expert:  T Perrin C replied 1 year ago.
You need to know that a residential lease or partially residential lease is automatically renewed (if unfurnished for no less than three years, if furnished for one year) unless you send a notice to terminate it at the anniversary date, at least three months in advance. If this place is your tenant's main residence, you can terminate the lease at the anniversary date only if you wish to use the premises as your main residence again.

Otherwise, even if rent payments are overdue, you need to follow the procedure outlined above.

Indeed the law is very much in favor of tenants...
Customer: replied 1 year ago.

So what about the lease clauses that says the duration is for only 23 months, the lease was drafted this way by our Notaire, at the end of the lease we are putting the property up for sale, are you say that unless we move back to France our tenant can continue to live in our property even if we give notice.

 

 

Customer: replied 1 year ago.

Can you explain to me why a Notaire would charge me a fortune to draft a 23 month lease with lots of stipulations if I can not affect them, only the walls of the property was let from us, although I left her a lot of my personal furniture until she could afford to buy some and now she is refusing to give me my personal assets back, although this was not in the lease the Notaire made her sign a seperate asset list to saying they were on loan.


 

Expert:  T Perrin C replied 1 year ago.
If you sell the place you can also give notice to the tenant on this basis at one of the lease's anniversary date but you will have to officially make her an offer to buy the place as she has to be offered first at best conditions...
Should she decline the offer and yet refuse to leave you would have to follow the procedure above to have her evicted before you can actually sell the place because, with such a good tenant in place, it would be hard to sell otherwise.
Expert:  T Perrin C replied 1 year ago.
You can add many clauses in a lease but once a place has become a tenant's main residence, the law is extremely protective and does not leave you much leeway unfortunately. These clauses will only impress tenants of good faith and not those used to pulling all the strings.
If the notaire made her sign a detailed asset list, you will be able to claim them back, or claim compensation if lost or damage (if the asset list details the state in which the assets were when loaned to her).
Customer: replied 1 year ago.

Can I give her Notice now that I will be terminating the lease at the end of the lease date or do I have to give her notice 3 months before, it was written in the lease that she had an option to buy and this was planned for last December, but the bank has refused to give her a mortgage, I wonder why.


 


If of course rent delays continue then I will have to just keep sending demands through the correct channels,


 


My German Lawyer is a french Lawyer based in Paris, she is adamant that it would not take long becuase of the lease breaches, but of course there is a price of 3000 eur to complete the task.


 


 


 

Expert:  T Perrin C replied 1 year ago.
The procedure is very straightforward indeed, though costly. The execution is less so when dealing with a tenant's main residence. But is certainly may be worth trying. Cancelling the lease because of non-payment will save you all the notification and double preemption offer as detailed below.

You must give her notice at least 3 months before the lease renewal date if it has already been mentioned in the lease that the property was go be sold, or 6 months in advance if it was not done properly. The notice has to mention the price at which the property was/is offered, and mention the first 5 paragraphs of article 15-II de la loi du 6 juillet 1989. The tenant has 2 months to answer (unless she has answered already when the bank rejected her mortgage application.)
If you decide to lower the selling price, you must re-do all the offer procedure again....
And once the sale is about to be concluded either the seller or the notaire must formally inform the tenant (at the forwarding address she will give you) of the conditions before final signature of the deeds as the tenant must be given a second opportunity to buy the property. (2 months to answer+another 2 to try and obtain a mortgage once again, which could drive away many potential buyers)
Otherwise the sale can be voided.
Customer: replied 1 year ago.

Am I missing something here, my Notaire has told me that she does not have first option to buy because it is a mixed lease, he told me I can sell it at any time within the lease.my tenant has no power over buying our property it is written in the lease.


 


I find that if what you are telling me is correct and that I have to inform my tenant of the price i sold my property even after she has left is steering towards an infringement of human rights, I am now not surprised people do not want to let their properties in France thay are to scared that they will never get them back


 


I must admit you have really confused me now because either my notaire has misguided me or I am missing something.


 


 

Expert:  T Perrin C replied 1 year ago.
I am sorry I am confusing you. Mixed leases either follow the legal regime of residential or business leases. What I outlined above is the regime applying to those following the residential leases regime. Obviously, from what you write, your notaire has drafted the lease following the business leases regime.
If the tenant does not contest that when she is requested to leave, then everything should go as your notaire and your lawyer described.
If she were of bad faith she could claim that this is indeed a residential lease more than a business lease and request that residential lease protections apply. Of course she is most likely to be compliant and of good faith when requested to leave. At least, this is what I wish you. Otherwise, you have the alternative described in my previous answers.
T Perrin C, Consultant: information en droit du travail
Category: French Law
Satisfied Customers: 1380
Experience: 8 years as a Senior judge at Paris Conseil de Prud'hommes (Paris Industrial Tribunal)
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T Perrin C
T Perrin C
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8 years as a Senior judge at Paris Conseil de Prud'hommes (Paris Industrial Tribunal)