AIRBNB : The acquisition of illicit rents by the owner

In an exemplary decision of September 13, 2019, in which the Firm defended the landlords, the Paris Court of Appeals ruled that:

“It follows both from Article 8 of the Law of July 6, 1989 and from the lease granted to ladies Z and A that the tenants were prohibited from subletting the property, unless they obtained the agreement of the lessors.”

The provisions of articles 546, 547 and 548 of the Civil Code provide that real estate ownership gives right 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 in good faith. If he does not, 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 permanent. Thus when it ceases, the acquisition of the fruits will cease (Cass. 3e civ. 2 December 2014, n°13-21.127).

The respondents invoked the deferred nature of the accession to escape the restitution of civil fruits. Under this principle, the lessee remains the owner, during the term of the lease, of the constructions he has built on the lessor’s land. This implies that the lessee remains the owner of the buildings he has built until the lease expires, and that he may thus freely sublet them.

In this case, this principle does not apply since the tenants were not entitled to sublet since they knew they were not the owners. In fact, the provisions of the law and the lease formally prohibited them from subletting. Consequently, by violating the above-mentioned provisions, they were possessors in bad faith as soon as they published their advertisements in order to sublet. Therefore, 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 landlord.

It must be noted that the tenants could not invoke the theory of unjust enrichment.

In addition, the tenants caused real prejudice to their landlords by taking the fruits of the sublease.

However, the lessors’ claim is based on the right of ownership with autonomous effects in relation to the lease contract. Thus, the lessors do not have to prove fault, prejudice or even causation.

Thus, the lessees could not pay the lessor their rent together with other civil fruits produced by the sublease of the real property, because the fruits all accrue to the owner “by accession” .

Finally, the principle of the relative effect of contracts and the contractual relationship between the principal lessee and the sublessee does not prevent the restitution of the civil fruits, as long as this restitution does not have the effect of creating a contractual relationship between the lessor and the sublessee, and as long as the lessors do not claim for their benefit the execution of the commitments contracted by the sublessee, but only the restitution of the fruits of the frugal thing.

The Paris Court of Appeal granted the lessors’ request.