The lawsuit against tenants for the subletting of their apartment on the Airbnb site gives us the opportunity to come back to the principles of subletting. Subletting is like entering a labyrinth: Three major laws that contradict each other, contractual clauses that can go against the law, different possibilities depending on whether the accommodation is empty, furnished or it is social housing….
Short. Everything is allowed or… prohibited. The validity of the sublet status depends on so many criteria that it is advisable, like Alice, to hang on to the white rabbit… Or to her breadcrumb trail… To each his own method, because we might as well admit it. is a complicated notion. Subletting is not prohibited; it is even provided for and authorized by the Civil Code in its article 1717 according to which “the lessee has the right to sublet and even to assign his lease to another, if this option does not has not been banned ”. The difficulty arises from the fact that other criteria have been introduced by the various laws governing the subject of residential leases.
To determine what is allowed and what is not, you must first check:
- The date of the conclusion of the lease: to find out which law will apply, and not all of them lay down the same principles.
- Check the lease contract and especially the clauses it contains because some may include provisions contrary to the law. Some clauses will be valid, and some will not.
- The type of living quarters: Is it empty? Does it have more than five pieces? Is it a private rental, social housing…?
Before getting to the heart of the matter, it is preferable to recall the main principles of subletting.
The legal criteria for subletting
Sub-letting is formed when a tenant leases all or part of the enjoyment of his home in return for the payment of rent. He then becomes the lessor of the sub-tenant.
It's here financial contribution which characterizes the subletting (Cass. civ., 3rd of May 11, 1993, n ° 91-19.252).
This does not apply to people accommodated free of charge, friends, family and even absolute third parties (Cass. Civ., 3rd of November 14, 2002, n ° 01-12.558; Cass. Civ., 3rd of 29 April 1997, n ° 95-16721)
EXCEPT if the LEASE clauses prohibit subletting. However, their validity will depend on the persons concerned.
Validity of the clause towards third parties
Certain clauses may prohibit subletting or even any form of accommodation, even free of charge.
In contractual matters, “the law of the parties” takes precedence over the law. It suffices that the lease contract provides for a clause stipulating the prohibition to accommodate a third party (a distant person, not personally known), to lend the accommodation or even to sublet without financial compensation, so that the forfeiture or termination of the lease is pronounced. (Cass. Civ., 3rd of March 10, 2010, n ° 09-10.412; Cass. Civ., 3rd of October 26, 2011, n ° 10-16.694)
Nullity of the clause towards relatives and family
However, such clauses will be declared null if they prohibit the accommodation of members of his family or a close relative (Cass. Civ., 3rd of March 6, 1996, n ° 93-19.262).
And this, that the accommodation is free (Cass. Civ., 3rd of December 14, 1994 n ° 92-15.129). Or with the payment of rent in return (Cass. Civ., 3rd of March 6, 1996, n ° 93-19.262).
When it comes to family, relatives (partners, friends, boyfriends ...) we apply the principles of the European Convention on Human Rights which provides in its Article 8-1 the right to respect for his private life , among which is the protection of the home.
Any clause providing to the contrary will be declared void.
In principle, subletting is not prohibited, but very supervised. To find out which text applies, you have to determine the date on which the lease was concluded, and read your lease contract (you can have entered into a lease governed by the law of 1948 even in 2000!)
Leases concluded under the 1948 law
According to article 78 of the law of 1948 Modified by law n ° 86-1290 of December 23, 1986 will be authorized:
- Subletting ofone piece : No authorization required, but the owner must be informed by registered mail with acknowledgment of receipt.
- Subletting of two pieces : No authorization required, but the owner must be informed by registered mail with acknowledgment of receipt.
However, this last provision is only granted to tenants living alone, aged at least 65, and if their accommodation has a maximum of 5 rooms (beyond that, an authorization is required).
The duration of the sublet is linked to that of the tenant. If the tenant leaves, or the lease comes to an end, the sublet also ceases.
The price of the sublet is proportional and limited to the rented space.
Subletting of all the accommodation
To sublet the entire property, you need prior authorization from the owner.
The tenant must make the request by registered letter with acknowledgment of receipt.
If the owner authorizes it, the sub-tenant benefits from the same lease conditions as the tenant.
If the tenant's lease ends, the sublet will end under the same conditions.
Leases concluded under the 1989 law
Article 8 of Law No. 89-462 of July 6, 1989 tending to improve rental relations provides that:
“The tenant can neither assign the rental contract, nor sublet the accommodation except with the written agreement of the lessor, including on the price of the rent. The price of the rent per square meter of living space of the sublet premises may not exceed that paid by the main tenant… ”
But several hypotheses are to be considered:
Subletting an empty home
You need the prior authorization of the lessor and inform him of the price charged.
The sublet will only be valid if he agrees on these two points.
The principle being that the tenant cannot be paid more than the price fixed in the lease contract by the owner.
Subletting furnished accommodation
You have to look at the clauses of the lease contract.
If no stipulation expressly prohibits it, the subletting of furnished accommodation will be authorized.
If a clause prohibits it, the tenant can always request the authorization of the owner.
The price of the rent, paid by the sub-tenant, is free and without limit! (furnished rooms are a godsend for sleep merchants).
The only limit is that the sublet ends at the same time as the end of the lease or the departure of the tenant.
Leases concluded under the ALUR law of 2014
Article 8 of the 1989 law was amended by law n ° 2014-266 known as “ALUR” of March 24, 2014 and applies to leases concluded after March 27, 2014.
All leases signed after March 27, 2014
Either it's about empty or furnished housing, we must collect thewritten agreement of the owner on the principle of subletting, But also on the price to which it is practiced. An amount which cannot be higher than that fixed on the lease.
For the sake of protection towards the sub-tenant, the legislator has provided for the obligation for the tenant to provide him with: A copy of the lease and mail including express agreement of the owner.
The duration of the sublet is linked to the tenant's lease. If he gives his notice, or if the lease expires, the sublet ceases.
The fact that the owner has given his express consent does not give any additional rights to the sub-tenant (no maintenance in the premises if the tenant leaves the accommodation…).
He has none. Even if he has consented to the sublet, the landlord is an absolute third party to the contractual relationship (a lease), binding the tenant to the sub-tenant.
The landlord cannot therefore consider eviction proceedings against the sub-tenant. He will have to act against the tenant. (Cass. Civ ;, 3rd of February 1, 2012, n ° 10-22.863, 10-23.818 and 11-10.027).
Just as if it happened that the sub-tenant had regularly paid his rent to the tenant and that the latter had not paid it back to the owner, the sub-tenant can only take action against the tenant.
And if the eviction was ordered, his good faith (the fact that he had paid his rent) would not allow him to stay in the premises.
Hence the interest in providing direct payment to the owner.
Subletting of social housing
The subletting of all the accommodation is strictly not allowed.
An exception is provided for in II of article 442-8-1 of the code of social action and families, according to which part of the apartment may be sublet in favor of a person of:
- less than 30 years old, in this case, the sublet cannot exceed 1 year (renewable)
- over 60 years, or a disabled person for an unlimited period
The tenant must, however, inform the social landlord by registered letter with acknowledgment of receipt (remember to attach supporting documents).
In order to protect the sub-tenant, the tenant must send him the letter validating the lessor's agreement and a copy of the lease.
Article L.442-8 of the construction and housing code provides for a fine of 9 euros if the subletting continues despite a ban by the social landlord.
To know :
If the sublet is regular, the sublet can benefit from APL.
The lessee, who in his dealings with the sub-tenant takes the place of the owner, is advised to take out “sub-tenant recourse” insurance as would a lessor.
Regarding the phenomenon of evictions due to Airbnb subletting
The Airbnb phenomenon annoys both tourism professionals and owners.
Regarding the latter, you should know that in recent years an offensive has been launched with retirees (or future retirees) to invest everything they hid under their mattress, in the purchase of real estate ( nothing is safer than investing in stone…).
This was presented to them as a long-term investment that would allow them to benefit from additional income to supplement their reduced retirement.
And it is clear that many of them have invested or even got into debt for many years and at an advanced age to secure their future.
So imagine the dismay of all these small owners to discover that their tenants earn more money than them on a property that does not even belong to them! And worse, that they can't even claim a piece of the pie.
The system is made in such a way that the contract is concluded with the tenant. Only he can claim the planned payment. A windfall that even the state does not know from what angle to tax.
The owners launch the offensive and initiate eviction proceedings.
But will they be a winner? Even if acquired for non-compliance with the lease conditions, an eviction procedure takes a very long time, we do not put people out on the street so easily and as long as the tenants contest ... "Yes, we put the apartment on the floor. site but no one came… ”… And launch into endless legal proceedings…
It takes several months, even several years, during which the owners will have to continue to pay their credits to repay the loan taken out… to keep the apartment.
And if they counted on the rents to repay the loan… The financial situation will quickly be untenable for retirees who already have just enough to meet their needs.
And it will be necessary to find new tenants, who will know how to be more discreet ... Unless the owners also engage in Airbnb and put their apartment on the site.
After all, if a weekend or two pays as much as a permanent tenant, why not ...
But there will always be the risk that no one will reserve it for several months and put an end to a fixed income.
Unless tenants and landlords make an agreement and stipulate in the lease the sharing of these unexpected gains.
To paraphrase Balzac " A good deal is better than a bad trial ».
Because, if on the merits, the law gives reason to the owners, not so sure that this very long and very expensive legal battle against their tenants really benefits them.