Commercial leases, fundamental rights, ECHR, EDHS, Court of Cassation, legislative balance, rent control, property rights
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Abstract
Overview of the compatibility of commercial leases with fundamental rights under ECHR and EDHS, and the role of the Court of Cassation in ensuring legislative balance.
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[...] Principle : the rent fixation is free. ? Targeted exception (DPE F or : when renting out a property classified F or G for the first time (CCH L.173-1-1), the rent for the new lease cannot exceed the last rent applied to the previous tenant (freeze at the last rent). To remember (practice/exam) The OLLs are approved statistical infrastructures, with guaranteed methodology and bipartite governance, serving as a public reference on rents. In tense areas, the existence of an OLL is mandatory (perimeter decree). [...]
[...] The Court of Appeal has violated the relevant texts. European Court of Human Rights, Grand Chamber June 2006, Hutten-Czapska, case n° 35014/97 Owner of a house in Poland subject to a a legal regime of rent control and to certain restrictions on the termination of leases (tenants imposed, practical impossibility of taking back the property). Rents fixed by law at a at a very low level, lower at the costs ofinterview ; impossibility of obtaining a minimal income ; degradation of the good. [...]
[...] ECHR Visa: art + art (horizontal scope). 8. Method: proportionality ? concrete weighing of interests (proportionate sanction). 9. Practice: in lease, beware of automatic sanctions (termination) in the face of a conventionally invoked right. Fabien Marchadier, « The control of the contract in the light of fundamental rights: a question that does not arise and whose answer is obvious?", RDC sept n° 113h8, p Summary Object & thesis. The author criticizes the silence of the ordinance of 10 Feb. 2016: the final version of art C. [...]
[...] In matters of leasing, the ECHR admits the regulation of the use of property if a fair balance is maintained; it does not require the physical recovery of the property by the lessor and does not guarantee a "market rent". On the other hand, it condemns regimes that annihilate any profit for the owner (rents [...]
[...] Discrepancy with national solutions where aesthetic interest has been able to prevail (e.g. 'Cabanes case', Cass. 3e civ June 2006): the ECHR revalues the cultural/informational interest of the tenant. Practical scope (residential leases). 5. Clauses limiting equipment/use (antennas, etc.) are not null in principle, but their implementation may become unlawful if the sanction (e.g. termination) is disproportionate in view of a fundamental right (art. 10). 6. National courts must justify the balance of interests (security, aesthetics, landlord's liability vs effective access to information/culture of tenants). Key message of the article. [...]
