The tenant who has not "personally" occupied the apartment is evicted


Dani Lurie Flickr 2.0

On March 1, 2016, Pierre X (invented name), owner of an apartment in Saint-Ouen (Seine-Saint-Denis), requires the eviction of his tenant, Piotr Y, for lack of employment and sub-contract to third parties. On June 13, 2016 he was dismissed by the Saint-Ouen District Court, for the reason that he does not provide evidence of alleged violations.

He appealed, claiming that Piotr Y, the head of a brick construction company based in Poland, does not personally occupy the apartment but subtracts it and / or lends it to a third party, which he suspects to be an employee, in violation of the terms of the lease that has been granted to him, and which does not remain in the addresses of the rented premises, but in Viroflay (Yvelines).

Pay for this in the debates:
– a certificate from the guardian of the Saint-Ouen building, which reads Mr. Y no longer lives at this address and has even changed the occupant " and that he "Memorize your equipment illegally in the basement";

– a registered letter sent by him to Piotr Y on 31 July 2015 and returned with the mention " notified and unclaimed ";
Clothing in all rooms

a report from the bailiff of 23 December 2015; the bailiff states that " the apartment is occupiedHe has " discovered on the spot, after the door had been opened by a blacksmith, letters in the names of MM. Y, KL and M L, food stored in a chest of drawers in the living room, a piece of furniture room and in the kitchen, the clothes placed in the entrance closet, in a piece of furniture in the living room and in the bedroom, a freezer and a sofa bed in the living room … ";

a report of the judicial officer of 3 February 2016; the bailiff declares to have " he met a Mr. A on the spot, not speaking French, who put him in communication with Mr. Y, who let him know that he was traveling and that he would return at the end of the week ";
Private detective

– a report written by a private investigator, dated March 22, 2017, indicating that the couple Y lives in an apartment located in […] at Viroflay; the accompanying photographs show Mr. Y's van in front of the building, and the intercom that talks about the occupants of the gentleman and Mrs. M.myself Y;

– an act of service of a correspondence sent by Pierre X to Piotr Y in Viroflay; the usher indicates it "Mr. Y resides in […], top floor, and that his name appears on the mailboxes, as well as on the intercom ".
"Secondary residence"

Piotr Y admits it "He has a secondary residence where his wife and son reside more often and where he is regularlybut, specifies that, " in this way, it does not violate the terms of its lease. "

To prove that he lives in Saint-Ouen, he produces: income tax 2015, income tax 2014, letters and invoices received at the address of the rented premises, but also the certificate from MD, saying that he meets it " almost every morning in the corridors of the building, he invites him to his house and practices swimming with him in the swimming pool of Saint-Ouen ".
Rental bans

The Paris Court of Appeals, ruling on 22 November 2018, recalls that Article 1103 of the Civil Code provides that "thelegally formed contracts are the law of those who created them " and that "The judge may, under the provisions of Article 1184 old and 1217 new of the Civil Code, terminate any sinallagmatic contract, since it can be imputed to one of the contracting parties a breach sufficiently serious to warrant this closure".

He finds it "The rental agreement granted to Mr Y stipulates that the premises must be used exclusively in the personal home of the tenant and his family and that the tenant is prohibited from subcontracting, assigning the right to rent, or lending the premises to third parties under any pretext " .
Loan to third parties

Believes that the documents produced by Pierre X "They are unsuitable for characterizing a subletting".But that"Establish that Mr. Y has rented premises available to third parties" . Indeed, the fact that "The people hosted (…) receive mail (invoices, care leaves) with the address of the rented places", the fact that there is "Clothes scattered around the apartment And that food is " saved " in the living room "Accredit the idea that the apartment rented has been lent to third parties".

The Court of Appeals adds this "This presence of third parties and the fact, established by the investigation of a private detective e [le procès-verbal d’] a judicial officer, that Mr. Y's wife and his family have a house in the Yvelines department, are sufficient to report the evidence, looming over the owner, that the premises are not exclusively employed in the home of the Mr. Y and his family ", and that they are made available to third parties, even if no proof is provided that this provision was taken for consideration".

The Court of Appeal considers it "The documents produced by Mr. Yne can usefully combat the evidence reported by the applicant, as they are not suitable for demonstrating the effective occupation of the premises rented by the tenant".

He says so "The only proof of Mr. D, compatriot and friend of the defendant, is insufficient, alone, to demonstrate the effective occupation of the premises by Mr. Y, because it is otherwise established that Mr. Y visits regularly the building since it has stored, in the basement of the residence, the materials and tools necessary for its construction sites. ".

She considers it "The violations reported against Mr. Y are serious enough by themselves (…) to justify the declaration of the termination of the lease". The judgment is invalid.

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