Tenant’s waiver of eviction compensation clause

Eviction compensation clauses for tourist residences: on November 16, 2023, the French Supreme Court handed down 3 rulings on these clauses.

Waiver of eviction compensation prior to 2014

It follows from Article 2 of the Civil Code that new law governs the legal effects of legal situations that came into being before its entry into force and have not been definitively realized. Here, the 2014 Pinel law applies to commercial leases signed before this law.

Law no. 2014-626 of June 18, 2014, known as the Pinel Law, substituted, for the nullity of clauses having the effect of defeating the right to renewal, their deemed unwritten nature. Clauses waiving eviction compensation or setting a lump sum for eviction compensation are covered by this rule according to this ruling.

The lessee’s action to have a lease clause deemed unwritten is not subject to the statute of limitations (Cass., 3rd Civ., November 19 2020, pourvoi n° 19-20.405, published).

The judges conclude that the sanction of deemed unwritten (cancellation) is applicable to leases in force at the time of the 2014 Pinel law, even if the statute of limitations on the action for nullity of waiver or eviction indemnity setting clauses had previously expired.

Cour de cassation, 3rd civil chamber, November 16, 2023 – n° 22-14.046

Clause waiving eviction compensation after 2014

An application to have a clause having the effect of defeating the right to renewal, introduced after the entry into force of the law of June 18, 2014 and relating to a lease in progress on that date, deemed unwritten is admissible even though the limitation period for the action for nullity of that same clause would have expired on the day the new law came into force.

This second ruling by the Cour de cassation on November 16, 2023 confirms the application of the Pinel law sanction even though the two-year prescription would have been acquired on the day the 2014 Pinel law came into force.

Court of Cassation, 3rd Civil Chamber, November 16, 2023 – n° 22-14.091

A tenant who acts by way of action cannot invoke the exception of nullity

As the commercial lease stipulated a clause waiving the tenant’s right to renew the lease, and the notice of termination issued by the lessors without an offer of renewal or eviction compensation had terminated the lease on December 31, 2013, the court of appeal correctly held that the legal situation had ended on that date, i.e. before the law of June 18, 2014 came into force, and that this law was not applicable.

The rule that the exception of nullity is perpetual can only be invoked as a defense to a request for enforcement of an irregularly executed act and not by the plaintiff acting by way of action.

The tenant sued the landlords for nullity of the notice to vacate and of the clause waiving payment of an eviction indemnity.

The Court of Appeal correctly deduced that the tenant had acted by way of action, so that she could not rely on the exception of nullity.

Consequently, the waiver of eviction indemnity clause drafted by the operator of the tourist residence at the time of renewal of the commercial lease applies in this case.

Court of Cassation, 3rd Civil Chamber, November 16, 2023 – n° 22-14.089

French Leaseback : What happen after the end date of the commercial lease ?

French Leaseback : Is my commercial lease over ?

End date doesn’t mean end of the lease with the operator

The expiry of a commercial lease does not automatically mean that it is no longer in force. The lessor/owner of a tourist/student residence is not “without a lease” or free of any obligation to the operator/tenant of the premises.

It means that the landlord cannot reclaim his property once this date has passed.

There are two possible scenarios: 1. the operator leaves and the apartment is vacated without compensation; 2. the tenant stays and the landlord must pay him compensation for eviction, continue the old contract or sign a new one.

Moreover, the parties are not in a “legal vacuum”. All the clauses of the old commercial lease remain in force, in particular those relating to rent, charges and works.

These complex rules may seem counter-intuitive to those unfamiliar with commercial lease law. Worse still, it is rare for marketers of tourist/student accommodation to explain these specific rules to prospective owners who will discover them 9 or 18 years later.

Please, feel free to ask us any questions.

Leaseback in the Alps: How do you get your apartment back ?

leaseback in the French Alps

End of the leaseback in the French Alps

Lessors/Landlords of a leaseback in the French Alps wishing to terminate the commercial lease of an operator must have a bailiff issue a notice of termination.

At the end of the notice period, the operator must return the keys to the owners, after payment of an eviction indemnity, unless the tenant has waived the eviction indemnity subsequent to signing the commercial lease.

The turnover method is often used to determine the eviction compensation. In the case of a tourist residence in the mountains, case law applies special coefficients for that kind of leasebacks.

How to calculate eviction damages ?

The turnover method

The Chambéry Court of Appeal is the main source of the case law applied to leaseback in the French Alps.

The Chambéry Court of Appeal applied the following coefficients to a tourist residence in a uniquely well-known ski resort (Pierre et Vacances Avoriaz):

– a coefficient of 0.7 of turnover

The Chambéry Court of Appeal used the following coefficient to assess eviction compensation for a chalet in the Le Village Gaulois tourist residence in the Saint François Longchamp ski resort (73130):

– a ratio of 1.2 of turnover.

The EBITDA method

The Chambéry Court of Appeal applied the following coefficients to a leaseback in the Alps in a uniquely well-known ski resort (Pierre et Vacances Avoriaz):

– a coefficient 8 applied to EBITDA. 

(Court of Appeal, Chambéry, Civil Division, 1re section, March 20, 2018 – n° 14/00392)

The Chambéry Court of Appeal applied the following coefficients to a tourist residence in a ski resort with a unique reputation (Eurogroup, Macot la Plagne):

– a coefficient 6 applied to EBITDA.

(Court of Appeal, Chambéry, Civil Division, 1re section, December 4, 2018, n°17/00978)

Concerning the valuation of the eviction indemnity for a chalet in the Le village Gaulois tourist residence in the Saint François Longchamp ski resort (73130), the legal expert used the following coefficient:

– 6 EBITDA

(expert report dated September 23, 2022 before the Albertville court)

Our law firm is representing owners in the following leasebacks properties in the French Alps:

  1. L’orée des neiges, Vallandry, CGH
  2. Hameau du glacier Les Arcs, Pierre et vacances
  3. Le Quartz La Plagne, Pierre et vacances
  4. Refuge du montagnard Les Arcs, Pierre et vacances
  5. Le village Gaulois à Saint François Longchamp, Goelia
  6. Douchka Avoriaz, Pierre et vacances

Please feel free to ask us any question regarding a leaseback in the French Alps.

Adagio Vanves Gare tourist residence: PV CP CITY ordered to pay 43,845 euros in unpaid rent

covid rent

On August 28, 2023, Pierre et Vacances (PV CP CITY) was ordered by the Nanterre judicial court to pay 43,845 euros to 31 lessors (41,845 euros in unpaid rent and 2,000 euros in article 700 CPC) of the Adagio Vanves Gare tourist residence.

1°) Adagio Vanves: a decision applying the case law of the Cour de cassation (French Supreme Court)

The court once again rejected the arguments put forward by the operator of the Adagio Vanves tourist residence, in line with the June 2022 ruling of the French Supreme Court (Cour de cassation). The exception of non-performance and force majeure invoked by the operator of the Adagio Vanves residence were rejected with regard to rents for the covid periods (2020 and 2021).

Europe’s leading group of tourist residences had benefited from substantial public subsidies, including a so-called “closure” grant.

Lastly, the court rejected the operator’s request for payment deadlines in the following terms:

“In the present case, although the lessee can justify the drop in sales he suffered during the years 2020 and 2021, i.e. during the period of the health crisis, he cannot justify his current financial situation.

The court is therefore not in a position to assess whether the lessee’s financial situation, and in particular its cash flow, requires it to be granted a payment moratorium and, should such a moratorium be granted, whether it would be in a position to clear the rental arrears while continuing to pay the current rents.

It should also be borne in mind that the plaintiffs themselves have to pay off the loans taken out to acquire the leased premises.

Consequently, PV-CP CITY’s request for a payment extension should be rejected.

The lessors of the Adagio Vanves Gare tourist residence can congratulate themselves on their patience.

2°) Individual lessors forced to advance cash

In this case, the operator postponed the amicable request and the proposal for a negotiated solution, and above all benefited from a de facto deferral of the obligation to pay rent for several years from 2020.

The role of individual lessors who have saved for their retirement and continue to make monthly loan payments despite the health crisis is not to substitute banking institutions for short-term loans free of charge for the sole benefit of the PIERRE ET VACANCES group.

This situation is all the more unacceptable as GROUPE PIERRE ET VACANCES is announcing to its shareholders a cash position of 510 million euros in January 2021 and 450 million in September 2020.

(PIERRE ET VACANCES communication at the Annual General Meeting on February 1, 2021).

This means that GROUPE PIERRE ET VACANCES has built up a “cash position” at the expense of individual lessors, who have invested their savings in its residences.

The lessors have executed the stipulations of the commercial lease in good faith, and have sought the intervention of the courts to ensure that the operator is finally forced to pay the outstanding commercial rents.

Press release and judgments of the Cour de cassation of 30 June 2022

Unpaid Rent

A victory for commercial lessors

The Court of Cassation has confirmed what the lawyers for lessors of tourist residences had been arguing for, except of course for those who had advised their clients to waive their rent claims. Operators of tourist residences must pay Covid rent in full.

Lessors of tourist and student residences (and in particular Pierre et Vacances, Residetudes, Belambra, etc.) can rejoice: the Cour de cassation has rejected all the operators’ arguments concerning Covid rents!

Positive law in this area rejects breach of the obligation to deliver and the exception of non-performance, as well as force majeure and partial loss of the property, which are inapplicable in this case.

The Court of Cassation’s rejection of the lessee’s arguments (force majeure, obligation to deliver, partial loss of the property)

On 30 June 2022, the Cour de cassation handed down two rulings confirming the positive law rejecting force majeure, breach of the obligation to deliver and partial loss of the property in the case of unpaid covid rent.

It even issued a clear statement on the substance and form:

“The general and temporary measure prohibiting the tenant from receiving members of the public does not result in the loss of the rented property and does not constitute a breach by the landlord of his obligation to deliver. A tenant is not entitled to rely on this as a case of force majeure in order to avoid paying his rent.

The question referred to the Court of Cassation

Were the shopkeepers, who were prohibited from receiving members of the public, entitled not to pay their rent?

Legal grounds and debates

The General Prosecutor’s Office of the Court of Cassation submitted a memorandum from the Ministry of the Economy, Finance and Recovery on the impact of the health crisis on shop rents.

This note shows that :

up to 45% of retail outlets were closed during the crisis ;

the total amount of rent and rental charges tied up in this way is estimated at more than €3 billion;

these businesses were able to benefit from three successive aid schemes (solidarity fund, fixed costs and rent assistance), as well as other support measures.

Court of Cassation rulings

State of emergency and ordinary contract law

Benchmark: the state of health emergency

Law of 23 March 2020: a state of health emergency is declared throughout France.

Decrees of 23 March 2020 and 14 April 2020: it is forbidden to leave your home until 11 May 2020, except to make essential purchases or purchase supplies required for your professional activity.

The aforementioned decrees and orders of 14 and 16 March 2020 issued by the Minister for Solidarity and Health:

the ban on receiving the public applies to businesses whose activity is not essential to the life of the nation and whose offer of goods or services is not a basic necessity.

The measures taken by the public authorities to combat the spread of Covid-19 have not ruled out the application of ordinary law to contractual relations.

State of emergency and loss of the leased property ruled out by the Cour de cassation

Key point: loss of the leased property

Article 1722 of the Civil Code: A tenant may ask for the price of the lease to be reduced or for it to be terminated if he has lost the thing he is renting under fortuitous circumstances.

The ban on receiving members of the public during a health crisis could not be equated with a loss of the leased property within the meaning of article 1722 of the Civil Code.

This prohibition :

was general and temporary ;

was aimed solely at protecting public health; and

was not directly related to the purpose of the leased premises as set out in the contract.

The shopkeepers were therefore not entitled to request a reduction in their rent.

State of emergency and the landlord’s obligations

Key point: the landlord’s obligations

The lessor is obliged to deliver the rented property to the lessee and to guarantee peaceful enjoyment of it, in accordance with its contractual purpose.

The general administrative police measure prohibiting the reception of the public does not constitute a breach by the lessor of his obligation to deliver.

Consequently, the shopkeepers could not rely on the defence of non-performance to suspend payment of their rent.

State of emergency and force majeure

Article 1218 of the Civil Code: In contractual matters, force majeure occurs when an event beyond the debtor’s control prevents him from performing his obligation.

It is an event: which could not reasonably have been foreseen when the contract was entered into; the effects of which could not be avoided by appropriate measures.

It follows from article 1218 of the Civil Code that a creditor who has not been able to benefit from the consideration to which he was entitled may not obtain rescission of the contract or suspension of his obligation by invoking force majeure.

Accordingly, the Court of Appeal correctly held that the lessee, as the creditor of the obligation to deliver the leased property, was not entitled to rely on force majeure.

The two rulings by the Cour de cassation confirm the solutions adopted by the courts, notably in the ADAGIO / PIERRE ET VACANCES cases and more generally in the case of tourist residences and unpaid rent covid :

  • Grenoble Court of Appeal, Commercial Division, 5 November 2020, no. 16/04533
  • Interim order of the Versailles Court of First Instance, 28 June 2021
  • Interim order of the Versailles court of 28 January 2022
  • Judgement of the Meaux judicial court of 10 March 2022
  • Judgement of the Avignon judicial court of 24 March 2022
  • Judgement of the Lisieux judicial court of 15 March 2022
  • Judgement of the Mulhouse judicial court of 11 February 2022
  • Judgment of the Meaux judicial court of 5 May 2022, 1st chamber, No. RG 21/01536
  • Judgement of the Evry judicial court of 7 April 2022, 8th civil chamber, RG n°21/01846 and n°21/01848
  • Judgment of the Judicial Court of Nanterre of 8 June 2022, RG n°21/09021
  • Judgement of the Judicial Court of Nanterre of 8 June 2022, RG n°21/08985
  • Interim order of the Nanterre judicial court of 12 August 2022, RG n°22/01425
  • Interim order of the Nanterre judicial court of 18 January 2023, RG n°22/01744
  • Judgement of the Paris judicial court of 22 March 2023, RG n°21/01226

Adagio Massy Convicted

adagio massy

116,206 euros in Covid rents for lessors of the Adagio Massy tourist residence

25 lessors who own this PIERRE ET VACANCES residence have obtained an order against the operator to pay their unpaid rents under the pretext of confinements now dating from 2020 and 2021.

The court ordered the operator to pay €116,206, comprising €108,526 in commercial rents and €7,680 in legal costs (article 700).

The Evry court ruled that the lessors had not committed any fault or breach of contract.

In their ruling of 7 April 2022, the judges pointed out that the lessor’s obligation to deliver does not imply an obligation to guarantee the lessee the stability of the regulatory framework in which his business is conducted:

“Indeed, while the various administrative decrees and measures do objectively and indisputably affect the peaceful enjoyment of the leased premises, since by prohibiting the reception of the public, the administrative measures prevent the lessee from enjoying the premises in accordance with their contractual purpose, the lessor cannot be accused of any fault that has made it impossible for the lessee to carry on his hotel business.

Furthermore, the lessor’s obligation to deliver does not imply an obligation to guarantee the lessee the stability of the normative framework in which his business is carried on, provided that the consistency and condition of the premises handed over to him enable him to carry on the business for which they were contractually intended.

As a result, SAS ADAGIO’s plea of non-performance will be rejected.

Judgements of the Evry Court of 7 April 2022, 8th Civil Division, RG n°21/01846 and n°21/01848

On 30 June 2022, the Court of Cassation handed down two rulings and published a press release confirming this solution.

A general and temporary ban on receiving members of the public does not result in the loss of the rented property and does not constitute a breach by the lessor of his obligation to deliver.

A tenant is not entitled to rely on force majeure to avoid paying rent.

“Key point: loss of the leased property

Article 1722 of the Civil Code: A tenant may ask for the price of the lease to be reduced or for it to be terminated if he has lost the thing he is renting through unforeseen circumstances.

The ban on receiving members of the public during a health crisis could not be equated with a loss of the leased property within the meaning of article 1722 of the Civil Code.

This prohibition :

was general and temporary ;

was aimed solely at protecting public health; and

was not directly related to the purpose of the leased premises as set out in the contract.

The shopkeepers were therefore not entitled to request a reduction in their rent.

Cour de cassation press release, 30 June 2022

Adagio Paris Tour Eiffel, covid rents, four lessors win an appeal

covid rent

The perseverance of lessors in tourist residences pays off. The lessors owned flats in the Adagio Paris Tour Eiffel residence at 14 rue théâtre, 75015 Paris.

The Paris Court of Appeal dismissed Pierre et Vacances’ (PV HOLDING) appeal on 7 July 2022.

The tourist residence operator had appealed against a summary order of 8 April 2022 ordering it to pay 23,781 euros to four lessors (22,521 euros in unpaid covid rent and 1,260 euros in damages under article 700 of the French Code of Civil Procedure). #covid #lessor

The Court of Cassation has since confirmed this solution in two other Covid unpaid rent cases heard on 30 June 2022.

PARIS COURT OF APPEAL

Division 1 – Chamber 2

No. RG 22/08567 – Portalis No. 35L7-V-B7G-CFXYE

Nature of referral: Statement of appeal valid as entry on the roll

Date of referral: 27 April 2022

Date of referral: 18 May 2022

Nature of the case: Claim for payment of rent and service charges and/or for an order or declaration of termination

termination for non-payment or lack of insurance and order eviction

Decision contested: no. 22/51770 handed down by the TJ excluding JAF, JEX, JLD, J. EXPRO, JCP of PARIS on 08 April 2022

Appellant :

S.A.S. PV HOLDING (RCS de PARIS no. 508 321 155), represented by Frédérique ETEVENARD, lawyer

at the Paris Bar, toque: K0065 – File No. 20220139

Respondents:

Mrs ,

Mr ,

Mrs ,

Mr ,

Represented by Me Bruno TRAESCH, lawyer at the PARIS bar, toque: E1219

ORDER OF LAPSE

(Articles 905-2 of the Code of Civil Procedure)

(short circuit)

(n° , 1 pages)

We, Marie-Hélène MASSERON, President of the Chamber,

Assisted by Saveria MAUREL, Registrar,

Having regard to Article 905-2 of the Code of Civil Procedure,

Having regard to the observations made by Frédérique ETEVENARD on 1 July 2022,

Whereas the appellant has not delivered his submissions to the clerk’s office within the time limit set ;

FOR THESE REASONS

Declare the declaration of appeal null and void, with the exception of the right to refer this order to the Court in application of

application of Article 916 ;

Order that the parties and their representatives be notified of this decision by ordinary letter.

Paris, 07 July 2022,

The Registrar The President,

The Adagio Esplanade tourist residence at La Défense (Pierre et Vacances)

98,265 euros conviction from the court of Nanterre

6 lessors of the Adagio Esplanade tourist residence in La Défense obtained 98,265 euros from the interim relief judge of the Nanterre judicial court by ordering ADAGIO SAS, a member of the Pierre et Vacances group, to pay 98,265 euros (89,265 euros in respect of Covid rent and 9,000 euros in legal costs, article 700 of the CPC).

The Court of Cassation confirmed this solution in its judgments of 30 June 2022.

JUDICIAL COURT OF NANTERRE

INTERIM ORDER ISSUED ON 10 NOVEMBER 2022

No. RG 22/01510 – Portalis No. DB3R-W-B7G-XPL4

N° minute :

c/

S.A.S. ADAGIO

APPLICANTS

all represented by Maître Bruno TRAESCH, lawyer at the PARIS Bar

of PARIS, clerk: E1219

DEFENDANT

S.A.S. ADAGIO

L’Artois Espace Pont de Flandre

11 rue de Cambrai

75947 PARIS CEDEX 19

represented by Maître Philippe RIGLET of SELAFA CMS

FRANCIS LEFEBVRE AVOCATS, lawyers at the bar of

HAUTS-DE-SEINE, Bar: 1701

2

COMPOSITION OF THE COURT

Chairman: Vincent SIZAIRE, Vice-President, holding the hearing

by delegation of the President of the Court,

Clerk: Esrah FERNANDO, Registrar

Ruling publicly at first instance by order

available at the court registry,

in accordance with the notice given at the end of the debates.

The interim relief judge, after hearing the parties present or their counsel, at the

hearing on 10 October 2022, reserved the case for today:

DESCRIPTION OF THE DISPUTE

The parties to this dispute are the owners of co-ownership lots in a building located at 35 cours Michelet in

Puteaux and leased to the Adagio company, which sublets these properties as tourist residences.

tourist residences.

Following the health crisis in March 2020, Adagio suspended payment of part of the rent.

part of the rent.

On 9 June 2022, the plaintiffs brought an action against Adagio before the interim relief judge. In

the latest version of their claims, they ask for :

– that Adagio be ordered to pay the applicant the total sum of

43,960.70; to Mr and Mrs Adagio the total sum of €15,748; to Adagio the total sum of

the total sum of €23,643.10; to Mr the total sum of €19,977.87; to the company the total sum of

company the total sum of € 8,518; to the company the total sum of € 23,643.10

and to Mr and Mrs the total sum of €13,081;

– Adagio be ordered to pay each claimant the sum of 630

under Article 700 of the French Code of Civil Procedure, and to pay all the costs.

costs.

In their written submissions and the observations they presented at the hearing, they argued that Adagio had not

Adagio did not prove that it had paid them the rent due and that its obligation to pay was not

seriously disputable, as the administrative closure to which it was subject did not exempt it from

exempt it from paying the rent.

In its written submissions and the observations it presented at the hearing, Adagio argued for

dismissal of the claims. In the alternative, it seeks the granting of 24 months’ deferred payment.

Lastly, it seeks an order that each of the plaintiffs pay it the sum of 500 euros under

under Article 700 of the French Code of Civil Procedure, and to pay all the costs.

It points out that the plaintiffs have not substantiated their claims and that some of them

signed settlement agreements with it. It also maintains that the impossibility

to which it was subjected amounts to a partial loss of the rented property and a breach of the

and a breach of the obligation to deliver, exempting it from the payment of rent. It

considers that a fine imposed on it would violate its right to property as protected by the

property as protected by Article 1 of the First Additional Protocol to the European Convention on

Convention for the Protection of Human Rights and Fundamental Freedoms.

3

GROUNDS FOR THE DECISION

On the claims for provisional damages

As regards the obligation to pay

It follows from the provisions of Article 835 of the Code of Civil Procedure that, “in cases where

the existence of the obligation is not seriously disputable”, the interim relief judge may

grant an advance to the creditor, or order performance of the obligation even if it is an obligation to do something”.

an obligation to do”. Article 1353 of the Civil Code also states that “a person who

performance of an obligation must prove it. Conversely, a person who claims to be discharged

must justify the payment or the fact which produced the extinction of his obligation”.

In the case in point, Mr and Mrs , M , and the companies , and provide evidence, by producing their

lease agreements or, at the very least, rental receipts issued by Adagio, are creditors of Adagio.

to Adagio for the payment of rents due in consideration of the rental of their properties.

rental of their properties.

Contrary to what the defendant maintains, the total and then partial bans on receiving

to which it was subjected did not deprive it of the enjoyment of the property and therefore

enjoyment of the property and cannot therefore be regarded as constituting a loss of the rented property

or a breach by the lessor of its obligation to deliver.

It also follows from Article 1218 of the Civil Code that a creditor who has not been able to take advantage of the consideration to which he was entitled is not entitled to any compensation.

to which he was entitled cannot obtain suspension of his obligation by invoking force majeure.

invoking force majeure.

Lastly, assuming that the company has a real right in the leased property, the obligation to pay the rent to which the company is subject cannot be suspended on the grounds of force majeure.

to which Adagio is subject has neither the effect nor the object of depriving it of the enjoyment of the

enjoyment of these assets, it cannot claim any infringement of its right to respect for its assets as

property as protected by Article 1 of the First Additional Protocol to the European

to the European Convention for the Protection of Human Rights and Fundamental

freedoms.

It follows from the foregoing that the obligation to pay rent relied upon by M , M and

Ms , M and the companies , and is not subject to any serious dispute. In addition

contrary to what it maintains, Adagio does not in any way justify having signed transactions with these

landlords of any transactions likely to partially extinguish its debt to them.

Having regard to the statements of account produced by the plaintiffs and the payment notices produced by

the defendant, it should therefore be liable for the provisional sums of 23

643.10 to be paid to the company, EUR 8,518.23 to be paid to the company, EUR 7,875.93 to the company

the company , 13,951.78 euros to M , 13,081.01 euros to M and Mme and 22,197.01 euros to

M .

On the other hand, it is clear from the documents in the file that by contract dated 24 September 2020,

granted the defendant an indemnity to compensate for the losses suffered during the periods of administrative closure.

administrative closures. Their request for a provisional order therefore comes up against a serious

and must be rejected.

With regard to payment deadlines

Article 1343-5 of the Civil Code states that “the court may, having regard to the situation of the debtor

the needs of the creditor, defer or stagger payment of the sums due, up to a maximum of two years”.

the payment of sums due”.

4

If it justifies the financial difficulties it encountered as a result of the health crisis in 2020

and 2021, Adagio has not provided any evidence to show that it is in a financial

that it is financially unable to pay, as of the date of the hearing, the sums that may be

to pay.

Its request for payment deadlines must therefore be rejected.

Costs and expenses of the proceedings

Pursuant to Article 700 of the French Code of Civil Procedure, Adagio should be ordered to pay

Adagio the sum of €1,500 in respect of the costs incurred by M , M and

and the companies , and not included in the costs.

As Adagio is the losing party, its claim for the costs of the proceedings can only be approved by the Court.

proceedings can only be dismissed.

Lastly, pursuant to Article 696 of the Code of Civil Procedure, Adagio should be ordered to pay the costs of the proceedings.

costs of the proceedings.

FOR THESE REASONS

The interim relief judge, ruling by contradictory order, publicly and at first instance

at first instance:

ORDER the company Adagio to pay the sum of 23,643.10 euros to the company .

ORDER Adagio to pay the sum of 8,518.23 euros to the company .

ORDERS Adagio to pay the sum of 7875.93 euros to the company ,

orders Adagio to pay the sum of 13,951.78 euros to M

MET to pay Adagio the sum of 13,081.01 euros to be paid to Mr and Mrs

ORDERS Adagio to pay the sum of 22,197.01 euros to Mr .

DISMISSES Adagio’s request for deferred payment.

ORDERS the company Adagio to pay the sum of 1,500 euros to M , M and Ms .

and the companies, pursuant to Article 700 of the Code of Civil Procedure.

DISMISSES all their claims.

DISMISSES Adagio’s claim pursuant to Article 700 of the French Code of

Code of Civil Procedure.

ORDERS Adagio to pay all the costs of the proceedings.

DATED AT NANTERRE, this 10th day of November 2022.

THE REGISTRAR,

Esrah FERNANDO, Registrar

THE PRESIDENT.

Vincent SIZAIRE, Vice-Chairman

Adagio Charras convicted €16,536

Unpaid Rent

Adagio Charras ordered to pay 16,536 euros (covid commercial rents) to two lessors

The operator of the Adagio Charras residence, PV CP CITY, a company in the Pierre et Vacances group, has been ordered to pay the unpaid covid rents, in accordance with all rulings and in particular the decision of the Cour de Cassation.

The Aparthotel Adagio access La Défense Place Charras tourist residence (formerly a student residence) is located at 1 Rue de Bitche (92400) in Courbevoie.

Adagio Charras: a first conviction of €10,205

The operator of the tourist residence, a member of the PIERRE ET VACANCES group, has been ordered by the interim relief judge of the Nanterre judicial court to pay a landlord the sum of €10,205 (€9,205 in covid rents and €1,000 in respect of article 700 of the CPC).

NO. RG 22/01425

A second award of €6,331

A second lessor of this Adagio Charras residence also obtained an order for the lessee to pay the sum of 6,331 euros (5,131.98 euros in Covid rent and 1,200 euros in article 700 of the CPC).

RG 22/01744

Getting your flat back by paying eviction compensation

Some lessors of the Adagio Charras residence, fed up with repeated unpaid rent, launched proceedings to recover their flat in return for payment of an eviction indemnity/damages. The interim relief judge sometimes specifies that the years 2020 and 2021 should be taken into account in the legal expert’s calculation.

JUDICIAL COURT OF NANTERRE

REFERENCES

SUMMARY ORDER ISSUED ON 12 AUGUST 2022

No. RG 22/01425 – Portalis No. DB3R-W-B7G-XLSO

minute no. :

Mr

Ms

c/

S.A.S.U. PV-CP CITY

APPLICANTS

Mr

Mrs

represented by Maître Bruno TRAESCH, lawyer at the bar of

PARIS, courtroom: E1219

DEFENDANT

S.A.S.U. PV-CP CITY

11 rue de Cambrai

75019 PARIS

represented by Maître Philippe RIGLET of SELAFA CMS FRANCIS LEFEBVRE AVOCATS, lawyers at the HAUTS-DE-SEINE bar, courtroom: 1701

The interim relief judge, after hearing the parties present or their counsel, at the hearing of

13 July 2022, reserved judgment until today.

DESCRIPTION OF THE DISPUTE

Mr and Mrs are co-owners of a property located at 1-5 place de Bitche in Courbevoie (92). This property is leased to PVCP City, which sublets the student residences that make up the complex. Since March 2020, PVCP City has not paid all the rent due to its lessors.

On 12 April 2022, Mr and Mrs summoned PVCP City before the interim relief judge. In their final statement of claim, they requested:

– an order that PVCP City pay them the sum of 17,020.39 euros as a provision for the payment of rents due

– Termination of the lease;

– order PVCP City to pay them the sum of 1,000 euros on the basis of Article 700 of the Code of Civil Procedure, and to pay all the costs.

In their written submissions and the observations they presented at the hearing, they argued that their claim was not seriously disputed, as the company had continued to operate the premises during the health crisis. They also argued that the non-payment of rent constituted serious misconduct justifying termination of the contract.

In its written submissions and the observations it presented at the hearing, PVCP City argued that the claims should be dismissed. In the alternative, it requests that the amount of the sums for which it is liable be reduced to 9,072.18 euros. Lastly, it seeks an order that the plaintiffs pay it the sum of 500 euros each on the basis of Article 700 of the Code of Civil Procedure, as well as all costs.

It maintains that the claims are seriously disputed, in that it was subject to periods of total and then partial prohibition on welcoming the public, amounting to a case of force majeure, a failure to deliver the rented property, a loss of the rented property and a disappearance of the cause of the contract. It also pointed out that it had paid all the rent due outside these periods.

GROUNDS FOR THE DECISION

On the request for an interim order

It follows from the provisions of Article 835 of the Code of Civil Procedure that, “in cases where the existence

of the obligation is not seriously disputable”, the interim relief judge may “grant an advance payment

to the creditor, or order performance of the obligation even if it is an obligation to do”.

In the case in point, it is clear from the documents in the file and in particular from the statement of account drawn up by the defendant company

dated 7 July 2022, that it still owes the sum of 9,205.44 euros in respect of rent

due.

Contrary to what PVCP City maintains, the administrative police measures to which it was

measures to which it was subjected in application of the state of health emergency cannot be regarded as a loss

or failure to deliver the rented property, exempting it from the payment of rent, insofar as they did not deprive it of the enjoyment of the rented property.

deprived it of the use of the premises. For the same reasons, they cannot be regarded as

as depriving it of any cause of its obligation, which consists precisely in the provision of the premises.

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the rented property. Finally, even if it were the case, the existence of a case of force majeure cannot exonerate the tenant

payment of a sum of money.

It follows from the foregoing that the obligation relied on by the plaintiffs is not subject to any

serious dispute. PVCP City should therefore be required to pay the sum of 9

205.44 by way of provision to be paid to Mr and Mrs .

Termination request

Pursuant to Article 484 of the Code of Civil Procedure, “an interim order is a provisional decision made at the request of a party to a contract”.

made at the request of a party, the other party being present or called upon, in cases where the law confers jurisdiction on a judge who is not a party to the proceedings.

a judge who is not seised of the main proceedings the power to order the necessary measures immediately”.

As the termination of a contract is a final measure, it cannot be ordered by the judge in summary proceedings.

summary proceedings judge. The application made to that end can therefore only be rejected.

Costs and expenses of the proceedings

Pursuant to the provisions of Article 700 of the Code of Civil Procedure, PVCP City should be ordered to pay the costs of the proceedings.

PVCP City the sum of €1,000 in respect of costs incurred by the plaintiffs and not included in the

included in the costs.

As the plaintiffs are not the losing parties, the claim made against them in respect of the costs of the proceedings can only be accepted.

can only be dismissed.

Lastly, pursuant to Article 696 of the Code of Civil Procedure, PVCP City should be ordered to pay the costs of the proceedings.

PVCP City the costs of the proceedings.

FOR THESE REASONS,

The interim relief judge, ruling by contradictory order, publicly and at first instance :

orders PVCP City to pay the sum of EUR 9,205.44 to Mr and Mrs as an advance on the costs of the proceedings.

as an advance on the rent due.

ORDERS PVCP City to pay Mr and Mrs the sum of EUR 1,000 pursuant to Article

pursuant to Article 700 of the French Code of Civil Procedure.

DISMISSES the remainder of Mr and Mrs’s claims.

DISMISSES PVCP City’s claim pursuant to Article 700 of the French Code of

of Civil Procedure.

Orders PVCP City to pay all the costs of the proceedings.

DATED AT NANTERRE, 12 August 2022.

THE REGISTRAR

Divine KAYOULOUD ROSE , Registrar

THE PRESIDENT

Vincent SIZAIRE, Vice-President

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JUDICIAL COURT OF NANTERRE

REFERENCES

SUMMARY ORDER ISSUED ON 18 JANUARY 2023

N° RG 22/01744 – N° Portalis DB3R-W-B7G-XVDW

N° :

c/

PV CP CITY

APPLICANT

S.A.R.L.

represented by Bruno TRAESCH, lawyer at the Paris Bar

PARIS, clerk: E1219

DEFENDERESSE

Société PV-CP CITY

L’Artois Espace Pont de Flandre

11 rue de Cambrai

75019 PARIS

represented by Maître Philippe RIGLET of SELAFA CMS

FRANCIS LEFEBVRE AVOCATS, lawyers at the bar of

HAUTS-DE-SEINE, courtroom: 1701

COMPOSITION OF THE COURT

President: Quentin SIEGRIST, Vice-President, holding the hearing

by delegation of the President of the Court,

Clerk: Pierre CHAUSSONNAUD

Ruling publicly at first instance by order

available at the court registry,

in accordance with the notice given at the end of the debates.

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We, the President, having heard the parties present or their counsel, at the hearing of 30 November 2022, have reserved the case for today:

STATEMENT OF THE DISPUTE AND THE PROCEDURE

By deeds dated 21 December 2007, the Company acquired from Mr Emmanuel Monlibert and Mrs Ariane Monlibert, on the one hand, and from Mr Julian Cole, on the other hand, two flats, constituting lots no. 101 and no. 158, within a property complex subject to co-ownership status located at 1 rue de Bitche in Courbevoie 92400, known as the “La Défense Charras” residence.

When the flats were acquired, they were leased to Lamy Résidences for the purpose of operating a furnished serviced residence. Under a private deed dated 30 August 2007, Mr Emmanuel Monlibert and Ms Ariane Monlibert leased co-ownership lot no. 101 to the company for a period of 9 years, with effect from 1 October 2007, in return for an annual rent of €4,127.80 excluding VAT, payable in calendar quarters.

Mr Julian Cole leased co-ownership lot 158 to the same company for a period of 9 years from 1 October 2007, in return for an annual rent of 3,956.15 euros excluding VAT, payable every calendar quarter in arrears. A number of rental payments have remained unpaid.

By bailiff’s writ dated 8 July 2022, the company summoned PV-CP City to appear before the interim relief judge of the Nanterre court.

The case was called for hearing on 12 October 2022, but counsel for the defendant company requested that the case be adjourned, arguing that it had been brought late.

GROUNDS FOR THE DECISION

It should first be noted that the parties’ requests that the Court “rule that” do not necessarily constitute claims within the meaning of Article 4 of the Code of Civil Procedure, since they do not confer any specific rights on the party requesting them. Consequently, they will not be mentioned in the operative part.

Requests for an advance

The second paragraph of article 835 of the Code of Civil Procedure provides that in cases where the existence of the obligation is not seriously disputable, they may award an advance to the creditor, or order performance of the obligation even if it is an obligation to do something.

If the amount of the advance awarded in summary proceedings is limited only by the amount of the alleged debt that is not seriously disputable, it must remain provisional in nature, i.e. it must be an advance, the amount of which is intended, on the one hand, to cover costs justified by the claimant and, on the other hand, to be used to calculate the claimant’s loss with regard to the amount of compensation likely to be awarded.

In the present case, the company is seeking an order that PV-CP City, the successor in title to Lamy Résidences, pay it a provision of 6,597 euros in respect of unpaid rent and a provision of 5,000 euros in respect of undue resistance, by way of damages.

damages.

Firstly, with regard to the claim for unpaid rent, the company maintains that the defendant company has an obligation that is not seriously disputable to pay the rent in full under the terms of the commercial lease between the parties. In this regard, it submitted to the court the commercial leases for lots 101 and 158 covering the period from 1 October 2007 to 30 September 2016, as well as a breakdown of the rent due and the rent received from 1 October 2007 to 30 September 2016.

rents collected from the 1st quarter of 2020 to 2022, showing total unpaid rent of 5,131.98 euros.

In its defence, Adagio SAS argues that there is a serious dispute as to whether it should be ordered to pay rent on account of the possibility of invoking the defence of non-performance, given the impossibility of using the rented premises in accordance with their intended purpose and the partial loss of the rented property, which temporarily releases the lessee from its obligation to pay rent.

As a preliminary point, it should be noted that although no renewal of a commercial lease has been produced for the period concerned by the alleged unpaid rents, the defendant company in no way disputes the existence of a binding lease between the parties. In addition, although it objects to the principle of its obligation to pay the unpaid rent, it acknowledges that the amount of the unpaid rent is that shown in the statement of account produced by the company.

On the one hand, with regard to the plea of non-performance, it should be remembered that the administrative measures taken in the context of the health crisis are not attributable to the lessor, so that it cannot be accused of failing in its obligation to deliver. Accordingly, the

plea will be rejected.

On the other hand, with regard to the partial loss of the property, the administrative measures taken in the context of the health crisis did not result in the loss of the property within the meaning of article 1722 of the Civil Code, as the lessee could still physically access the premises, and the limitation or impossibility of using them did not amount to destruction.

It follows from the foregoing that PV-CP City has a non-seriously disputable obligation to pay the outstanding rent, even for the period covered by the administrative measures relating to the health crisis.

The amount of unpaid rent should therefore be determined.

In the present case, the company, which is seeking an order against the defendant company to pay the sum of 6,597 euros in respect of unpaid rent, has submitted a statement to the court showing a lower total amount of unpaid rent, namely the sum of 5,131.98 euros, and has not produced any supporting documents in respect of the surplus it is seeking.

In its defence, the defendant company stated orally at the hearing that it agreed with the amount of unpaid rent shown on the aforementioned statement, and contested the amount claimed of 6,597 euros.

It therefore appears that the provision of 5,131.98 euros requested by the company in respect of unpaid rent is not seriously disputable.

Secondly, with regard to the claim for damages for undue resistance, the company merely includes such a claim in its operative part, without justifying it in its grounds.

As PV-CP City validly submits, in the absence of justification of the principle and extent of the loss that it is claiming, the company will be dismissed from its provisional claim for damages for undue resistance.

Costs

Article 696 of the Code of Civil Procedure provides that the losing party is in principle ordered to pay the costs. PV-CP City should therefore be ordered to pay the costs.

Compensation claimed under Article 700 of the Code of Civil Procedure

Article 700 of the Code of Civil Procedure provides that the court shall order the party required to pay the costs or who loses the case to pay to the other party the sum it determines, in respect of the costs incurred and not included in the costs. The court must take into account the fairness or economic situation of the party ordered to pay costs and may set aside the order for the same reasons.

In this case, the application for an order against the company, which is neither liable for costs nor a losing party, should be rejected.

Taking into account the economic situation of the parties and equity, PV-CP City should be ordered to pay the company the sum of 1,200 euros under Article 700 of the Code of Civil Procedure.

Provisional enforcement

In accordance with articles 514 and 514-1 of the Code of Civil Procedure, it should be noted that

this decision is enforceable on a provisional basis.

FOR THESE REASONS

ORDER PV-CP City to pay the Company the provisional sum of 5,131.98 euros in respect of unpaid rent,

FIND that there are no grounds for summary proceedings in respect of PV-CP City’s request to be ordered to pay the company a provisional sum in respect of undue resistance,

ORDER PV-CP City to pay the costs,

ORDER PV-CP City to pay the company the sum of 1,200 euros in accordance with Article 700 of the French Code of Civil Procedure,

REJECT PV-CP City’s claim under Article 700 of the French Code of Civil Procedure,

REJECT the remainder of the claims,

RECALL that this order is provisionally enforceable.

DATED AT NANTERRE, this 18th day of January 2023.

THE REGISTRAR,

Pierre CHAUSSONNAUD

THE PRESIDENT.

Quentin SIEGRIST, Vice-Chairman

Adagio Val d’Europe Leaseback

adagio val d'europe

On 5 May 2022, 8 lessors of the Adagio Val d’Europe tourist residence succeeded in having the Meaux court order PV RESIDENCES & RESORTS France (PV CP CITY), part of the PIERRE ET VACANCES group, to pay €124,508 (Covid rents: €121,628 and €2,880 under article 700 of the French Criminal Procedure Code).

The Cour de Cassation confirmed this solution in its two rulings and its press release of 30 June 2022.

No “partial loss of the rented property

The operator, a company in the PIERRE ET VACANCES group, claimed that the confinements resulting from an administrative decision could be likened to a partial destruction of the rented property.

The aim was to avoid having to pay arrears of commercial rent for this tourist residence.

The Meaux court rejected this argument in the following terms:

“Temporary unavailability of the leased property, as a result of an administrative decision, is in no way comparable to partial destruction. The very nature of destruction is that it is definitive.

However, in the case in point, what is involved is a temporary administrative closure that cannot be equated with partial destruction of the rented property.

The plea alleging “partial loss of the rented property

Temporary unavailability of the leased property as a result of an administrative decision cannot in any way be equated with partial destruction. In fact, the very nature of destruction is that it is definitive.

However, in the case in point, what is involved is an administrative closure of a temporary nature that cannot be equated with partial destruction of the leased property.

The plea will be rejected.

Judgement of the Meaux judicial court of 5 May 2022, 1st chamber, No. RG 21/01536

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