Rental: prohibited clauses (residential lease)
Prohibited clauses in the lease
Whether it is a residential lease, empty or furnished, or a commercial lease, the law has provided for prohibited clauses or practices. It is best to be aware of them when planning to rent out a property. These unfair clauses are deemed to be unwritten, but some of them can have serious consequences (particularly in the case of a discriminatory clause). To avoid any mistakes, your bailiff is at your disposal for the drafting of the lease and the property management of your property.
Prohibited clauses or discriminatory practices :
Regarding possible discrimination, you should know that it is obviously prohibited (whether it is discrimination on the grounds of sex, race, nationality, sexual orientation, political, philosophical or religious beliefs, etc.) and that it is punishable by 3 years' imprisonment and a fine of €45,000.
Cases of discrimination :
It goes without saying that certain criteria should not be taken into account when choosing a tenant, for example :
- Geographical origin
- Last name or place of residence
- Membership or non-membership, real or assumed, of an ethnic group or nation
- Spoken Language
- Sex or gender identity
- Marital status, pregnancy or maternity
- Sexual orientation or morals
- Physical appearance,
- Health status, disability, loss of autonomy
- Genetic characteristics
- Religion, political beliefs or trade union activities
- Precariousness of its social precariousness
While the first cases listed above are obvious, the last one (the prohibition of discrimination due to the precarious economic situation of the prospective tenant) requires some attention.
It goes without saying that if the tenant does not have the means to rent your property, you can of course refuse the rental. This refusal, which does not need to be motivated, must be based on concrete elements, taken from the documents you have collected from the prospective tenant.
That is not what is forbidden. On the other hand, since Law 2016-832 of 24 June 2016, discrimination is prohibited "on account of the particular vulnerability resulting from the economic situation, apparent or known to the perpetrator".
This means that if the economic analysis of the file, including social aid, presented does not show a risk of non-payment of rent, this cannot be the reason for a refusal to rent.
As a reminder, the different housing subsidies that co-exist (without being cumulative) are :
- Personalized Housing Assistance (APL)
- Family Housing Allowance (ALF)
- Social Housing Allowance (ALS)
The difference between these three social housing subsidies is as follows:
the APL is paid because of the housing situation (in particular rented accommodation), whereas the ALF is paid because of the beneficiary's social or family situation.
The ALS is paid only to people who are not eligible for the first aid (APL and ALF), subject to ceilings; its maximum amount is around €200.
It should be noted that the year 2020 should see a transformation of these aid schemes.
Let's now look at the specific cases of each type of lease (commercial lease, empty or furnished residential lease)
Prohibited clauses in the empty residential lease:
We can group the prohibited clauses into five themes, which are:
- clauses relating to the payment of rents
- clauses relating to the life of the lease
- financial covenants
- restrictive covenants as to the use of the dwelling
Prohibited clauses relating to the payment of rent :
The landlord may not impose on the tenant, for example, to :
- pay rent by direct debit
- sign several cheques in advance for future rents
- deducting the rent from the salary (not to be confused with the provision of accommodation as a benefit in kind)
The case of cash payment :
Furthermore, if cash payment is allowed, please note that it is limited to €1,000. Furthermore, I strongly advise against encouraging this method of payment for two reasons.
First of all, the cash payment is likely to come from an unreported activity, even criminal activity, and you may be suspected of concealing this activity.
On the other hand, a tenant who stops paying his rent after having paid it for several months in cash could argue before a court that he continued to pay it but that his landlord simply stopped providing him with receipts.
Therefore, if your tenant wishes to pay in cash, you should be aware that Tracfin (the intelligence service under the authority of the Ministry of Action and Public Accounts, in charge of analysing suspicions of money laundering, terrorist financing, etc.) has a special department for the analysis of suspicions of money laundering. ) is reserved for professionals.
Also, you will not be able to file a suspicious transaction report.
This is why I advise you first of all to file a handrail at the police station or an information report at a gendarmerie with reservations as to the source of the funds.
In addition, it is useful to have your tenant sign a document, which you in turn will sign, in which both of you acknowledge that at the tenant's request a payment of the rent in cash will be made, and that a receipt will be given to the tenant immediately.
So the idea is:
- do your duty as a citizen by notifying the police station or gendarmerie, which can be useful if you are suspected of handling stolen goods.
- provide for a process of compulsory receipt delivery, in order to cut short the bad faith of the tenant who claims to have paid in cash without receiving a receipt.
- The clauses relating to the life of the lease:
Certain clauses relating to the life of the lease are purely and simply prohibited.
This is the case, for example, of the clause requiring a multi-risk home insurance policy to be taken out with a company chosen by the owner.
Nor may the landlord reduce or cancel benefits provided for in the lease contract.
Nor can it prohibit the tacit renewal of the lease. On this subject, you should know that the lease is renewed by tacit agreement for its initial duration, i.e., for empty dwellings, for 3 years (or 6 years in the case of a lease for a legal entity).
Cases of lease cancellation are strictly limited. These are non-payment of rent or charges, non-payment of the security deposit, failure to take out rental risk insurance or neighbourhood disturbances recognised by a court of law.
No other case of termination of the lease may be inserted in the lease.
- The financial clauses:
As a landlord, you cannot claim a lump-sum reimbursement for rental repairs from the tenant based on an estimate on your part. You must, when the tenant leaves, make an estimate, present it to the tenant and carry out the repairs.
Of course, any clause in the lease providing for a lump-sum restoration indemnity (si, si! I've already seen it!) is prohibited.
Nor may the lessor impose charges in addition to the payment of rent and charges, such as for example :
* compensation in the event of a breach of the co-ownership regulations
* a penalty clause in the event of non-payment of rent
* the cost of sending a receipt or a rent call
* a lease of furniture in addition to the real estate lease
- Clauses to limit the use of the property :
When I show a property for rent, I am always surprised to hear visitors ask if they can have a pet.
Please note: the owner has no right to prohibit the keeping of a pet, with the exception of 1st category dogs (1st category dogs are attack dogs, such as Staffordshire terriers (the pit bulls), Mastiffs without pedigree (the boer-bulls) or Tosa without pedigree.
The landlord also has no right to prohibit the tenant from engaging in political, trade union, associative or religious activity.
The tenant may not be forbidden to receive guests (or even to accommodate them) in his home.
Nor can you provide for clauses that derogate from the law, such as, for example, providing that the tenant must accept more than two hours of visits for the sale or rental of the rented accommodation, or that he must accept these visits on Sundays or public holidays.
Furnished residential lease :
In addition to the prohibitions previously seen for empty dwellings, certain clauses specifically relating to leases of furnished dwellings are prohibited.
The most frequent case is the clause providing for a rental period of less than one year.
If you wish to rent your property for less than one year, you should know that the only solution available to you is to offer the property for rent to a student. In this case, the law allows you to limit the rental period to nine months.
For a shorter period, only seasonal rentals are available.
In this case, the Hoguet law provides that the seasonal rental of a dwelling may not exceed 90 days and may not be renewed.
|1 day to 90 days||Seasonal Lease|
|9 months minimum||Student Lease|
|12 months minimum||Classic Furnished Lease|
Don't forget that your best ally for the drafting of a lease without litigious clauses remains the bailiff, and that we manage your properties in the Ile de France, but also in Marseille, Grenoble, Nantes, Bordeaux, Lyon ...