Analysis of Article 1743 of the Civil Code, focusing on its role in maintaining lease continuity upon property alienation, protecting tenants, landlords, and buyers.
Extract
[...] It has emerged from Article 1743 of the Civil Code, a benefit to the buyer, this provision protects him in particular from acquiring a thing on which a lease resides without being aware of it. However, many abuses have emerged, in fact, the buyer used Article 1743 arguing the absence of knowledge of a lease to allow him not to recognize it. For this reason, jurisprudence has been severe. In fact, the Court does not hesitate to refuse the application of Article 1743 as soon as proof is provided that the buyer was well aware of the existence of the leaseCiv February 2004). [...]
[...] 3e April 1970). Thus the balance sought by Article 1743 of the Civil Code is found. [...]
[...] We recognize in article 1743 a will to establish a certain form of legal security in contractual transactions of sale. It is relevant, in this comment, to question the guarantees that the article 1743 of the Civil Code requires and prescribes on the acts and actors entering its field of application. In the first instance, our reflection will focus on the contractual balance sought in the event of alienation of the leased thing and the value given to the lease contract and the tenant in this operation It will then be necessary to analyze the rights, guarantees, and obligations then induced for each interested party, developing the implications of Article 1743 of the Civil Code and its judicial use. [...]
[...] It then introduces the first article among articles 1743 to 1751 of the Civil Code that concern the alienation of the leased property. One can then interpret this as one of the first conditions to observe in the event of alienation of a property, namely, whether there is a lease contract on it. If a law of May revises the original drafting of the article published in 1946, it only serves to update it, substituting 'sharecropper' for 'colon partiaire' in the old version. [...]
[...] A joint protection of the landlord, the tenant and the buyer « The buyer cannot evict the tenant, the sharecropper or the tenant who has a genuine lease or whose date is certain. The provision and its jurisprudential contributions have a real value in the coherence and proportionality of the reciprocal protections provided to all the actors who fall within its scope. In fact, although one can observe gaps in practice, in theory, both protect the landlord, who, if he regularly respects his obligations, can no longer be attacked, the tenant, who cannot be evicted by surprise in the event of the sale of the rented thing, and the buyer, who avoids any hidden lease on the thing he buys. [...]
