If you are dealing with a bad faith tenant or property owner benefiting from the “1948 lease act”, a private investigator can assist you !
In terms of real estate rental, the specific lease known as the “1948 lease” is unique, particularly in its conditions, its regime and also its possibilities of termination. What are its specific characteristics and why is it useful to call on a private detective agency?
The conditions of validity of the 1948 lease and its special regime
The 1948 lease is subject to these two main conditions:
- This lease must first concern a building built before September 1, 1948 and be located in a municipality of at least 10,000 inhabitants or bordering.
- Tenants who have benefited from a 1948 lease since at least December 23, 1986, can continue to enjoy it.
Leases entered into after this date no longer benefit from this regime.
The 1948 lease regime is also specific in various aspects.
Low rents and an unlimited term!
First of all, rents are subject to a very low regulatory ceiling which benefits tenants more.
Then, the other specificity in the 1948 lease regime lies above all in its duration.
On paper, the lease can be for a limited period or for an unlimited period. However, even for a time-limited lease, tenants are protected and can stay in the apartment without any time limit and without the need to write a new lease.
The obligation to really live in the housing at least 8 months in the calendar year
The tenant must live in the apartment for at least 8 months in the calendar year (except exceptions related for example to professional activity or health) under penalty of termination. The lessor may therefore exercise his right to leave to take over the accommodation by offering new accommodation for the tenants under the same conditions.
Our intervention as a private detective in the context of litigation related to a 1948 lease.
2 types of litigations that will need assistance :
- In case of abuse by the tenant.
- Or in case of abuse by the owner.
Abuse by the tenant of his right to remain in the premises
The 1948 lease being by nature in favor of the tenant, in particular at the level of capped prices, the latter may thus be tempted to exercise his right to remain in the premises without even respecting the conditions.
Indeed, the tenant has the obligation to live there at least eight months of the year, except for exceptions related to professional activity and health.
Termination by the lessor is then done by providing proof of insufficient occupancy and the intervention of a detective can thus be decisive.
The detective will then find out if the accommodation is regularly inhabited by the tenant.
What the law says:
Indeed, Article 10 of No. 48-1360 of September 1, 1948 provides: “The persons defined in Articles 4, 5, 6, 7 and 8 are not entitled to remain in the premises. Who did not actually occupy the rented premises themselves or did not have them occupied by the people who usually lived with them and who are either members of their family or dependent on them. The occupation must have lasted eight months during a rental year, unless the profession, the health condition of the tenant or any other legitimate reason justifies an occupation of a lesser duration…”
Abuse by the owner of his right to leave
On the other side , the intervention of the detective can also be beneficial for the tenant in the event a landlord abuses his right to leave.
An owner might want to recover his property in this way without even respecting the conditions.
The detective’s intervention will therefore determine whether this owner is indeed using his right to justify his notice to use the property as a residence for himself one of their ascendants or descendants.
French courts regularly sanction notice to leave when the accommodation in question remains unoccupied for too long after the tenant has left.
Indeed, French case law considers that the beneficiary of notice to leave (i.e. the lessor himself or a member of his family) must necessarily live in the accommodation within a reasonable time and for a period qualified as serious.
The law does not provide a precise deadline and case law assesses it on a case-by-case basis.
It is estimated that this period should range from a few weeks to a few months (see a judgment of the Paris Court of Appeal of January 7, 1998).
On the other hand, a takeover which occurs two years after the tenant’s departure is considered fraudulent but still has to be proven (Court of Appeal of Nîmes, January 15, 2008).
If the takeover is only effective for a very short period, the notice to leave the premises will also be considered fraudulent. Again, there is no minimum time of occupation provided for by law, but case law has already considered that the takeover for residency of five months does meet the legal requirements (see the Court of Appeal decision in Toulouse dated on June 23, 1998).
An appartment that will be sold following a departure of the tenant after a notice to leave also characterizes a fraud (Cass. civ. 3rd, October 12, 2004).
Although scheduled to disappear, the 1948 Rental contract is still the subject of disputes where the intervention of a private detective can be decisive in providing the necessary evidence for your claims, whether you are an owner or a tenant!
Do not hesitate to contact Anthony CAUDAL for more information and details on our intervention possibilities.