The French Civil Supreme Court has just confirmed the Paris Court of Appeal's decision dated June 5, 2018 - already extensively discussed - which had ordered the lessees to reimburse their lessor for the rents that they had collected for the unauthorized sub-lease of their apartment on Airbnb.
Besides the resentment that such a decision shall generate with "entrepreneurial" lessees - which is the judge's intention -, it may also, if its scope is extended, modify the procedural strategy for commercial lease lawyers in the fight against unlawful sub-leasing.
Airbnb and sub-lease: an authorized practice?
The public authorities did not delay in responding to short-term leasing via the Airbnb platforms 1. And also the owners - who were shocked to regularly find on Airbnb the photos of their rented apartments!
They will be able to refer to the case decided by the French Civil Supreme Court on September, 12, 20192. In this case, through a purely technical appreciation of a lease termination by the lessor, it was also discovered that the apartment had been posted on Airbnb for several months and that it had been sub-leased by the current lessees.
Yet, it is unlawful to sub-lease an apartment on Airbnb without the owner's prior authorization. In order to sub-lease his accommodation, a lessee must obtain an express written approval from the lessor, both on the principle and the amount of rent for the sub-lease, which was not the case here.
The owner had requested the reimbursement of the sub-leases by right of accession, which had been granted by the lower Court, then on appeal3.
This poignant issue of the Paris Court of Appeal's decision was unequivocably confirmed by the French Civil Supreme Court.
On the innovative basis of Articles 546 et 547 of the French Civil Code, the owner asserted that the rents collected by the lessees for these sub-leases were due to be reimbursed to him by right of accession.
The lessees, claimants on the appeal before the French Supreme Court, asserted that the sub-leases received were not civil revenues due to the lessor, but were the economic equivalent of a right of enjoyment conferred upon the lessee, entitled to collect such rents.
Approving the Court of Appeal's decision, the French Civil Supreme Court considered that "unless the sub-lease was authorized by the lessor, the sub-leases collected by the lessee constitute civil revenues which belong to the owner by right of accession, that the amounts collected in...