What is a lease?
According to the Civil Code. art. 1709: The hiring of things is a contract by which one of the parties obliges himself to make the other enjoy a certain time, and for a certain price which the latter obliges to pay him. The person who obliges himself to confer the enjoyment of the thing is called “lessor”, while the person who takes the thing in rental is called “lessee” or “tenant”.
- The lease is a contract:
- For a fee. This is essential. In the absence of a price, there is no lease.
- Synallagmatic. The lease gives rise to rights and obligations on the part of each party.
- With successive services. The fulfillment of the obligations arising from the lease is staggered over time.
- Temporary. The lease cannot be concluded on a perpetual basis. The parties may
nevertheless agree that the duration of the lease will be equivalent to the “survival” of the tenant.
This type of lease is governed by the provisions of the law of April 13, 1997.
- Non intuitu personae.
Unless otherwise stipulated, the lease is not concluded according to the person of the lessor or the lessee. The consequence of this principle is in particular that the tenant can assign his right (unless otherwise stipulated) and that the death of one of the parties does not terminate the contract.
Oral or written lease
Article 1714 C.C. states succinctly: “You can praise in writing or verbally”
The written lease
If written there is, it can be either authentic or under private signature. It is imperative to comply with the requirements of Article 1325 C.C.
It is necessary :
- as many copies as there are parts
- mention of the number of copies drafted and signed
- issue of a copy to each party
Warning: The following leases must be written:
- Principal residence lease (law of April 12, 2007)
- Lease for rooms intended for the accommodation of one or more students (article 1714bis of the C.C. inserted by the law of April 12, 2007)
The verbal lease
A verbal lease is a lease made without writing, but also a writing that does not meet the conditions of article 1325 C.C.
Any written lease must be presented for registration within 4 months of its conclusion. This compulsory tax formality is jointly and severally incumbent on all parties. However, conventionally, the charge and the cost of this registration can be attributed to one or the other party, without however that this charge can not be opposed to the tax authorities who in turn have a joint action against all the parties. signatories of said written lease.
The registration fee is generally set at 2/1000 (0.2%) of the gross amount of the rent over the entire lease period. Beyond the strictly fiscal aspect of this obligation, the indirect civil consequences of registration should be emphasized. On the one hand, registration is a way of giving a certain date to the written lease, thus making this document enforceable against third parties. On the other hand, the lessor also has a fiscal interest in registering the written lease agreement, in the event of a mixed rental (partially professional, partially private), because the breakdown of the rent for tax purposes will not be taken into consideration by the tax authorities, only on the express condition that a written and registered lease expressly reproducing this breakdown in figures has been established by the parties.
It should also be noted that the enforceability of a lease of more than 9 years or containing a receipt of at least three years of rent is subject to the transcription of said written lease, at the mortgage conservation office. In the absence of transcription, the said lease, which remains perfectly valid between the parties, will nevertheless see its duration reduced to 9 years vis-à-vis protected third parties.