Dn a building, owners and tenants must, in the same way, respect the obligation to live “Peacefully”, which is written into both the condominium regulations and the lease contracts. If a tenant disturbs the neighborhood, his landlord must call him to order, and, in the event of a repeat offense, ask him to leave. Alas, most often, the lessor, who does not live there, and who does not want to lose the rent money, does not react.
The syndicate of co-owners can then replace it: the civil code (old article 1166) indeed authorizes the “Creditor “Of an obligation to act in place of his” debtor », When the latter neglects to do so; case law applies this principle, says“Oblique action », To the condominium.
The Court of Cassation thus admitted, the November 15, 1985 (n ° 84-15.577), that the syndicate, creditor of the obligation of each co-owner to respect the regulations, may, in the event of “Deficiency »From the lessor, obtain the termination of the lease of the lessee who creates a “Prejudice” to the community.
What if the union does not intervene? Does a co-owner, the only victim of the tenant’s nuisances, have the right to take the place of the lessor? This is, in 2012, what M. and M.me X, owners of an apartment adjacent to the shop of a two-wheel repair company, FMJ Scooter, when they summon him before the Paris Tribunal de Grande Instance (TGI).
Odor and noise nuisance
These architects and their employees complain about the odor and noise pollution generated by the incessant starting of the engines. For several years, they have been asking, with supporting expertise, that the company install an air extraction system.
The Xs also assign the owner of the premises, Mme Y, whose “Deficiency” to make FMJ Scooter stop the “Offenses” to the co-ownership regulations, which prohibit ” the noise ” or ” the smell “ can “Disturb the peace of the other occupants”. The TGI judges that their oblique action is admissible. He announces the termination of the lease, and awards them 5,000 euros in damages, in compensation for their loss of use.
The company and Mme Appeal to it, but lose. They appeal to the Supreme Court and maintain that “ a co-owner may not, without unduly interfering with contractual freedom, act obliquely to terminate the lease ” concluded between two other people.
The Court answers them, April 8 (n ° 20-18.327), than “The co-ownership regulations having the nature of a contract, each co-owner has the right to demand that the others respect it”. And “Any co-owner can, like the syndicate”, obtain the termination of the tenant’s lease. Mr X having died during the trial, only his widow will be able to benefit from the decision.