Differentiate between the lease between a principal residence and a secondary residence
Rental: Differentiate the lease primary residence and secondary residence
During his research, it may be common to hear different sounds about the regulation of the lease contract law of July 6, 1989 as well as about the framework of the ALUR law of March 24, 2014. The risk may be to put oneself in danger by signing non-compliant residential leases for both tenants and landlords.
First of all, it is important to identify an important point, any clauses included in the lease that may come out of the law of July 6, 1989 can be canceled by the judge. As a result, tenants who are natural persons can benefit from a lease contract under the 1989 law if they wish to do so in order to rent an empty or furnished or mixed-use main residence.
However, tenants as legal persons cannot benefit from the signing of a lease law 1989 and will therefore have to use a common law lease, a secondary residence lease or a commercial lease.
How is the principal residence defined?
The main residence is defined by the law of 6 July 1989 as "the dwelling occupied at least eight months a year, except professional obligation, health reason or case of force majeure, either by the lessee or his spouse, or by a dependant within the meaning of the Construction and Housing Code." (Article 2).
The lease principal residence
Principal residence taken by a lease contract of principal residence of dwelling constituting the principal residence of the tenant or roommates. The latter can relate indifferently to a furnished rental as to an empty rental . However, differences exist between them with regard to the amount of the security deposit, the payment of rental charges and in particular in terms of duration.
The lease of main residence is in terms of legislation mainly governed by:
Until the decree of 29 May 2015 defining all the mandatory particulars and annexes to appear in a lease of principal residence, decree applicable since 1 August 2015.
The lease principal residence
Principal residence taken by a lease contract of principal residence of dwelling constituting the principal residence of the tenant or roommates. The latter can relate indifferently to a furnished rental as to an empty rental . However, differences exist between them with regard to the amount of the security deposit, the payment of rental charges and in particular in terms of duration.
The lease of main residence is in terms of legislation mainly governed by:
- the provisions of the Construction and Housing Code,
- the general provisions of articles 1713 et seq. of the Civil Code,
- Law No. 89-462 of 6 July 1989,
- Law No. 2014-366 of 24 March 2014, known as the ALUR Law.
Until the decree of 29 May 2015 defining all the mandatory particulars and annexes to appear in a lease of principal residence, decree applicable since 1 August 2015.
How to terminate the lease contract of the 1989 law?
Leave given by the landlord
It is only possible to give leave at the end of the lease, corresponding to 3 or 6 years in bare rentals or each year for furnished rentals. Necessarily by registered mail with acknowledgment of receipt or by bailiff at least 6 months before the end of the lease and 3 months in the case of a furnished lease.
There are 3 reasons for giving leave to the tenant, reasons that must be motivated and valid:
However, some tenants are under a particular status protecting them, preventing them from giving leave without offering an alternative solution of relocation in similar conditions. Tenants benefiting from this immunity are those over 65 years of age and tenants with resources below the income ceiling applicable to the allocation of rental housing under agreement.
It is possible to combine these two attributes, in the event that the tenant combines them it would be impossible to give leave to the latter unless he is himself over 65 years old or has income below the applicable income ceilings.
In the context of a judicial termination it is possible to insert a clause in the lease contract, providing for automatic termination outside normal periods of leave. This clause can only be invoked in the following cases:
Leave given by the tenant
It is possible to give leave at any time during the entire lease without any necessary reason justifying the departure. Nevertheless it remains necessary to notify the leave to the owner by sending a registered mail, under a notice of 3 months under a bare rental and 1 month for a furnished.
In some exceptional cases it is possible to reduce the period from 3 months to 1 month for bare rental:
> When should I give leave to my tenant?
> What reason to give my tenant leave?
It is only possible to give leave at the end of the lease, corresponding to 3 or 6 years in bare rentals or each year for furnished rentals. Necessarily by registered mail with acknowledgment of receipt or by bailiff at least 6 months before the end of the lease and 3 months in the case of a furnished lease.
There are 3 reasons for giving leave to the tenant, reasons that must be motivated and valid:
- Leave for sale (whose right of pre-emption is attributed to the tenant)
- Leave for resumption (housing or housing a family member)
- Leave for serious/legitimate reasons (major work, tenant not respecting his obligations, ...)
However, some tenants are under a particular status protecting them, preventing them from giving leave without offering an alternative solution of relocation in similar conditions. Tenants benefiting from this immunity are those over 65 years of age and tenants with resources below the income ceiling applicable to the allocation of rental housing under agreement.
It is possible to combine these two attributes, in the event that the tenant combines them it would be impossible to give leave to the latter unless he is himself over 65 years old or has income below the applicable income ceilings.
In the context of a judicial termination it is possible to insert a clause in the lease contract, providing for automatic termination outside normal periods of leave. This clause can only be invoked in the following cases:
- Neighbourhood disturbances
- Non-payment of the security deposit
- Non-payment of rent and utilities
- Non-subscription to rental insurance against associated risks
Leave given by the tenant
It is possible to give leave at any time during the entire lease without any necessary reason justifying the departure. Nevertheless it remains necessary to notify the leave to the owner by sending a registered mail, under a notice of 3 months under a bare rental and 1 month for a furnished.
In some exceptional cases it is possible to reduce the period from 3 months to 1 month for bare rental:
- By being a beneficiary of the RSA
- By being allocated social housing
- By being a tenant in a property in a tense area
- In case of health problem justifying a departure
- Loss of employment or transfer or obtaining first job
> When should I give leave to my tenant?
> What reason to give my tenant leave?
What are the premises outside the legislation of the 1989 law?
Certain premises or leases are excluded from the 1989 law, the rental of these dwellings is therefore governed by the lease of common law or by special laws regulating certain situations:
- The commercial lease with commercial and professional premises
- The mobility lease with residential premises
- The seasonal rental lease with the residential premises
- Premises leased by a legal person
- Dwellings rented as a function
- Dwellings rented as a secondary residence of the tenant
Ce qu’il faut retenir :
During his research, it may be frequent to hear different sounds about the regulation of the lease contract law of July 6, 1989 as well as about the supervision of the ALUR loir of March 24, 2014.
The risk may be to put oneself in danger by signing non-compliant residential leases for both tenants and landlords.
Tenants as legal entities cannot benefit from the signing of a lease law 1989 and will therefore have to use a common law lease, a secondary residence lease or a commercial lease.
The risk may be to put oneself in danger by signing non-compliant residential leases for both tenants and landlords.
Tenants as legal entities cannot benefit from the signing of a lease law 1989 and will therefore have to use a common law lease, a secondary residence lease or a commercial lease.
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Posted on 21/10/2021 by
Andy LECUYER
