The ALUR law n ° 2014-366 of March 24, 2014, requires the drafting of a lease contract. So all contracts concluded from March 27, 2017 (date of entry into force of the law) must be formalized in a regulated writing to be valid.
The leases concluded under the empire of the law n ° 89-462 of July 6, 1989 had also, in principle, to be written (article 3), but the jurisprudence largely accepted the verbal lease.
It is the hypothesis where an owner and a tenant agree to rent a property without signing any lease. The tenant takes possession of the premises and in return the owner receives the rent.
If their relations are good, the verbal agreement will not be called into question. But in case of conflict will then arise a problem of proof of the existence of the lease and the respective obligations of the tenant and the owner.
Therefore, what value will a verbal lease have and what rights will be attached to it?
The validity of the verbal lease
The verbal lease will be valid as soon as the parties have agreed to perform it. It is the hypothesis where the tenant settles in the places with the agreement of the owner who gave him the keys and fixed the price of the rent (Cass. Civ., 3rd of February 7, 1990, n ° 88-16.225 ). This situation must therefore be distinguished from an occupation without right or title (squatter).
The existence of the verbal lease can be demonstrated by any means (regular payments, rent receipt, exchange of letters, witnesses, invoices, etc.).
The verbal lease can be terminated at any time by concluding a written lease contract which will formalize the already existing agreements.
If the tenant or the lessor refuses to enter into a written lease, the other party may apply to the judge of the district court who, after noting the existence of the lease, will fix the obligations of the lessee and the lessor (according to their practices previous) and will substitute its decision for the lease contract (Cass. civ., 3rd of November 29, 2000 n ° 98-12.442).
Compliance with the provisions of the law of July 6, 1989
The particularity of the verbal lease is that even in the absence of writing, the relations of the lessor and his tenant will be subject to the law of 1989, the provisions of which are of public order.
This concerns the duration of the lease, which cannot be less than 3 years, if the lessor is a natural person, or 6 years if the lessor is a legal person (bank, insurance, etc.); the notice period; execution of the work ...
The lessee alone can avail himself of the provisions of the law of 1989 because he is deemed to be the weaker party to the contract. But he will not be able to invoke the nullity of the verbal lease to escape his obligations (pay the rent, respect the notice period…) that would be bad faith.
The characteristics inherent in the verbal lease
The termination clause
In the absence of writing, an owner will not be able to invoke a termination clause as of right. The clauses will only have value if they are in writing, even if the tenants have breached their main obligation by not paying the rent.
“The lease signed between the parties was a verbal lease… it resulted that no termination clause had been stipulated by the parties to the lease…” (Cass. Civ., 3rd of September 23, 2014, n ° 13-15.713).
This does not mean that the tenant cannot be penalized, but that, failing to write down, the lease will not be terminated automatically. To achieve this, the owner will have to initiate eviction proceedings.
The indexation clause
Indexation must be expressly provided for in a clause.
In the absence of writing, no increase in rent during the lease is possible.