Object of the decision
In an exemplary judgment of September 13, 2019 in which the Firm defended the owners, the Paris Court of Appeal ruled that:
” It follows from both Article 8 of the law of 6 July 1989 and the lease granted to Mrs Z and Mrs A that the tenants were prohibited from subletting the property, except with the agreement of the lessors .”
The provisions of Articles 546, 547 and 548 of the Civil Code provide that real estate property gives rights to everything it produces and the civil fruits belong to the owner by accession.
Article 549 of the same code specifies that the simple possessor obtains the fruits only if he possesses them in good faith. Otherwise, he must return the products with the thing to the owner who claims it. The good faith required for the acquisition of the fruits must be of a permanent nature. Thus, when it ceases, the acquisition of the fruits will cease (Cass. 3rd civ. December 2, 2014, no. 13-21.127).
The respondents invoked the deferred nature of the accession to avoid restitution of civil fruits. Under this principle, the lessee remains the owner, for the duration of the lease, of the buildings he has erected on the lessor’s land. This implies that the lessee remains in control of the buildings he has erected until the lease expires, and that he can therefore sublet them freely.
In this case, this principle does not apply since the tenants were not entitled to sublet since they knew they were not owners. Indeed, the provisions of the law and the lease formally prohibited them from subletting. Consequently, by violating the aforementioned provisions, they were possessors in bad faith as soon as they published their advertisements for the purpose of subletting. As a result, they cannot claim the fruits of these illegal sublets. Thus, all fruits received after the occurrence of the bad faith must be returned to the owner.
It must be noted that the tenants could not invoke the theory of unjust enrichment.
Furthermore, the latter caused real harm to their lessors by making the fruits of the subletting their own.
However, the lessors’ claim is based on the right of ownership with effects independent of the rental contract. Thus, the lessors do not have to prove fault, damage, or even a causal link.
The tenants could therefore not pay the lessor their rent with other civil fruits produced by the subletting of the real estate, because the fruits all return to the owner “by accession”.
Finally, the principle of the relative effect of contracts and the contractual relations between the main tenant and sub-tenant does not prevent the restitution of civil fruits, since this restitution will not have the effect of creating a contractual relationship between lessors and sub-tenant and the lessors do not claim for their benefit the execution of the commitments entered into by the sub-tenant, but only the restitution of the fruits of the fruit-bearing thing.
The Paris Court of Appeal upheld the lessors’ request.