Ihen a tenant in the private sector dies, his lease contract must automatically be transferred to his descendants, if they have lived with him for at least one year. When a tenant of social housing dies, the same principle of automaticity is supposed to apply, although, in addition to the duration of cohabitation, the children must meet certain conditions of resources and number, as set out in articles 14 and 40 (I) of the law of 6 July 1989 tending to improve rental relations. Therefore, when and how should the transfer of the lease of an HLM take place?
Although this is not provided for by law, Paris Habitat, the public housing office of the capital, requires that the applicant for the transfer make the “express request”, within three years after the tenant’s death. He thus intends to check that people with high incomes do not replace his tenants or that single people do not occupy housing intended for families.
When, in January 2018, he learned from the tax authorities that one of his residents, Ms.me X, has been dead for four years, and that her son has concealed it, by continuing to pay the rent of 350 euros for his four-room apartment, he is undertaking eviction proceedings. He considers that Mr. X occupies the accommodation without right, the lease having been terminated on the day of the death of the tenant in title.
Mr. X, who had cohabited with his mother since 2003, then asked to benefit from the lease, the transfer of which, underlines his lawyer, should have been automatic. Paris Habitat replies that its request is time-barred, since it was not submitted before June 24, 2017, i.e. within three years after the death of Mr.me X. To set this deadline, Paris Habitat relies on article 7-1 of the law of 1989, according to which the “actions deriving from a lease contract are prescribed by three years from the day on which the holder of a right knew or should have known the facts allowing him to exercise this right”.
The Paris Court of Appeal agreed with him on January 12, 2021: it judges that, if the “right to transfer”on the day of the tenant’s death, is ” automatique “as required by law, “exercise of this right” imposes an action, subject to the rules of prescription. Mr. X is appealing in cassation, and his lawyer, Mr.e Dominique Foussard, underlines the contradiction of this reasoning: either the transfer of the lease is automatic and it does not require any action from the beneficiary, or it requires an action, and in this case it is not automatic.
Me Foussard maintains that the court violated articles 14 and 40 (I) of the law of July 6, 1989, by ruling as it did: even informed late of the death, the lessor should have accepted the principle of the transfer, then check whether Mr. X met the conditions required to remain in the premises.
The Court of Cassation approves it, on September 28, 2022 (21-11.533): it overturns the judgment and refers the parties to another court of appeal of the Paris Court of Appeal. This will have to say if Mr. X – meanwhile expelled and housed in a home – should have stayed in his mother’s four-room apartment, where he received his two children, in joint custody.