LANDLORD’S OBLIGATION TO ISSUE
       

THE COURT OF APPEALS, THIRD CIVIL DIVISION. Training section.

January 31, 2001. Decision No. 187. Partial Cassation.

Appeal No. 97-16814.

On the appeal brought by the estate management company Clichy-Wattignies (Igcw), headquartered 24, rue Saint-Antoine, 75004 Paris,

to quash a decision of 30 May 1997 by the Court of Appeal of Paris (16th Chamber, Section B), for: 1 / the Union of co-owners of the building at 13 rue de Clichy, 75009 Paris , represented by its trustee company Property Paris-Nord, whose head is 4, rue du Lieutenant Colonel Deport, 75016 Paris,

2 ° / of the French Society of Management Studies and investment (sofregit), limited liability company, whose headquarters is 13, rue de Clichy, 75009 Paris,

defendants to appeal;

The plaintiff relies in support of its appeal, the four grounds of appeal annexed to this Order;

Means products appeal No. 97-16814 E by CPC Waquet, Farge and Hazan, a lawyer for Tips Real Estate management company Clichy-Wattignies (IGCW).

FIRST grounds of appeal:

IT complains that the decision invalidating attacked HAVE ordered the termination, the wrongs of society IGCW, lease of 16 April 1984, and that with effect from October 20, 1994, date of assignment,

The grounds that it can not be criticized for the company sofregit of trying to exploit one of the activities authorized by the lease more completely than did the previous tenant, it had no obligation to use the funds as it had been transferred, and vis-à-vis the landlord’s only obligations were not to exceed the intended contractual obligation to the leased premises in the state in which they are , to comply with laws, and the statement that the tenant has taken all necessary information in order to have the right to practice in the rented premises specified in the lease can not be applied unless there has been issuance one thing in accordance with contractual specifications; a rented space for a restaurant business must have all basic amenities to allow this activity, physically and legally, in praising the local use restoration without being equipped with air duct required by regulation, the company IGCW has not fulfilled the obligations imposed upon it by section 1719 of the Civil Code, that the fact that the tenant may have about the defect can not erase the fact that the thing could be brought into line, that the lessor has failed in its obligation to deliver, it is therefore necessary to terminate on the date of the summons;

Then, firstly, that acting in this way, disregarding whether the stipulation in the lease of the restaurant business, not a restaurant, and what with those of tea, sales of herbs and natural products, gifts, crafts and art gallery, did not show that, with the intention of the parties to lease the restaurant business should be understood as an accessory light restoration does not require the installation of a duct ventilation, the Court of Appeals denied his decision as a legal basis under Article 1134 of the Civil Code;

THEN ON THE OTHER HAND, THAT the lease expressly put the tenant’s obligation to comply with laws and that, moreover, the tenant, a real estate professional and had rented the premises in knowledge case, claimed to have previously taken all necessary information for the right to practice in places, so that the lease the lessor discharged from any obligation to deliver on administrative authorizations necessary for the performance of the business of restaurant , thus stopping the attack violated Article 1134 of the Civil Code;

THEN, finally, that the issuance of the termination of a lease that takes effect the day of the court, the appellate judge who decides on the issuance of the termination of a lease must assess the situation on the day of its decision that the company IGCW argued that, by general meeting of October 5, 1995, co-owners had authorized the installation of a ventilation duct, so the restaurant business could be conducted; in determining the date of termination on the date of the summons, and refusing to consider approval of the condominium to install a ventilation duct, obtained after the assignment, but before the ruling, the Court of Appeals violated Article 1741 of the Civil Code and 561 of the New Code of Civil Procedure.

SECOND grounds of appeal:

IT complains that the decision invalidating attacked for saying that the cancellation will take effect October 20, 1994, date of assignment, and have therefore limited the conviction of the company sofregit in respect of rent arrears to only rent due until that date,

REASONS TO no rent can be claimed after the date of termination of the lease;

WHILE the issuance of the termination of a lease takes effect the day of the court, thus the judgment violated Articles 1741 of the Civil Code and 561 of the New Code of Civil Procedure.

THIRD grounds of appeal:

IT complains that the decision invalidating attacked for saying that the company sofregit is entitled to claim compensation for damage caused by the failure to deliver the thing, and as a result of ordering an expert on interlocutory the amount of such compensation,

The grounds that the company sofregit seeks compensation for the damage on the basis of Article 1721 of the Civil Code relating to faults or defects of the thing and repair the resulting loss, citing the loss of his funds, however, that the damage does not result in the outright loss of funds but rather the inability to turn it into a restaurant, in fact the tenant could take over the activity of light meals as exercised before, or exercise the activities authorized by contract, that the damage is therefore limited to the loss of an opportunity to extend the previous operation;

THEN, ON THE ONE HAND, as a result, the provisions of the lease under which the tenant claims to have taken all the information needed to practice his profession in the rented premises, an exception to the warranty by the landlord of the defects of the thing leased when the vice preventing the use of the leased premises consists of an administrative requirement, thus the decision under appeal, which has the responsibility of the landlord compensation for alleged damage resulting from the administrative requirements for the operation a restaurant, violated Article 1134 of the Civil Code;

THEN ON THE OTHER HAND, the lessor is not liable for defects that the tenant knew or must have known, that in acting this way after admitting that, as argued IGCW society, the lessee, which is realtor who visited the site before the lease, knew perfectly well that they were not equipped with ventilation duct required by the Authority for the proposed restaurant activity, the Court of Appeals violated Article 1721 of the Civil Code;

SO, again, that, acting in this way without even characterize the fault of the lessor who, on the contrary, has multiplied the proceedings against the condo to get permission to install the ductwork required by the Administration, the Court of Appeals denied his decision as a legal basis under Article 1147 of the Civil Code;

THEN, finally, that the approval of the condominium to install a ventilation duct was, as argued the lessor, obtained in October 1995, before shutting down, when the situation should be assessed, the company sofregit , which at that time could still proceed with the operation of a restaurant, has lost no chance to extend the operation earlier, and did not suffer any loss resulting from a defect in the rented, but preferred to give up the lease and can not claim compensation for damage would have resulted for her the judgment thus violated Articles 561 of the New Code of Civil Procedure, 1721 and 1147 of the Civil Code.

FOURTH grounds of appeal:

IT complains that the decision invalidating attacked HAVE IGCW rejected the company’s warranty claim against the condominium of 13, rue de Clichy,

The grounds that it appears from the evidence provided to discussions, including the minutes of general meeting and the reasons for the decision of October 12, 1994, until that date at least IGCW the company had at no time provided precise description of the work that needed to be given permission effective, whether from the condominium or a judicial authority that, under these circumstances, the refusal of the union had no fault;

THEN, ON THE ONE HAND, THAT the co-ownership has never justified its refusal to allow the installation of the exhaust duct by the lack of production of detailed estimate of the work; it to first decided to ban the restaurant business in the building, and postponed its decision on the removal of odors, pending a meeting organized by the trustee on the scene with an expert, and then refused authorization sought after canceling the first resolution, arguing that the small courtyard in which the sheath had to pass is the property owners; that, therefore, based, to exclude wrongful refusal of the union, on the fact that ineffective IGCW society has not produced detailed estimate, the Court of Appeal violated Article 1382 of the Civil Code;

THEN ON THE OTHER HAND, THAT the union, by refusing to allow the offending work required by the Administration forced the company to enter the IGCW judge of a judicial authorization, not to escape compensation for the harmful consequences of his fault, take advantage of the fact that the company has not IGCW, for the judicial authorization, produced before the judge detailed estimate, in deciding the contrary, the Court of Appeals violated Article 1382 of the Civil Code;

THEN, finally, that the decision of 12 October 1994 had to cancel the resolution of the general meeting of owners, was found to constitute an abuse of majority and that, excluding the fault and definitely characterized by the union the decision cited above, the Court of Appeal disregarded the authority of res judicata by the decision, in violation of section 1351 of the Civil Code.

THE COURT

The first plea, made its first two branches and the third way, meeting:

Whereas, having found that he could be criticized for the company sofregit of trying to exploit one of the activities authorized by this lease more completely than did the previous tenant, and that, notwithstanding the provision that the requirement for tenant to the premises in the state and comply with laws governing the exercise of its commerce, the lessor was required to deliver the leased premises for a restaurant business with all the amenities for to exercise This activity physically and legally, the Court of Appeal decided, rightly, that the inability to put the local in accordance with the laws characterized a failure of society Igcw its obligation to issue and justify the termination of lease to be delivered at his wrongs;

Hence it follows that the appeal is unfounded;

The fourth plea, the following appended:

Whereas, having held that the company had at no time Igcw provided the description of the work that needed to be given permission, whether from the condominium or a judicial authority, the Court of Appeal, these grounds alone, without violating the rule of res judicata, legally justified its decision on that ground;

But on the first ground of appeal, taken in its third branch:

Having regard to Articles 1741 and 1184 of the Civil Code;

Whereas, according to the judgment (Paris, May 30, 1997), the company estate management Wattignies Clichy (Igcw) was leased to Ms. Duboc, human rights, which is the French Society of Management Studies and investment (sofregit) premises located in a condominium for use as food, tea, sales of herbs and natural products, gifts, crafts and art gallery in September 1994, the restaurant operated in the premises by the company sofregit has been an administrative closure to install a vent line with the regulations and that, not having obtained permission to install this equipment, the tenant has assigned the lessor to terminate the lease and compensation for damages;

Whereas the Court of Appeal declared the termination of the lease to the damage of the lessor at the date of the assignment, or October 20, 1994;

That in so holding, while the termination of a lease is not effective the date of the decision pronounced, the Court of Appeal violated the above documents;

FOR THESE REASONS, and without any need to rule on the second plea:

Quashed, but only in that it has set October 20, 1994 effective date of termination of the lease and ordered the company to pay sofregit society Igcw the $ 161,564, 07 francs for rent and expenses due to the October 20, 1994, the decision of May 30, 1997, between the parties, the Court of Appeal of Paris shall, therefore, as to what the cause and the parties in the state where they were before the judgment and to be granted, the returns to the Court of Appeal of Versailles;

Gives each party the burden of its costs;

Having regard to Article 700 of the new Code of Civil Procedure, rejected the demands of the condominium of 13, rue de Clichy, 75009 Paris sofregit and society;

Said that the audit of the Attorney General at the Court of Cassation, the above will be sent to be transcribed in the margin or as a result of the partially broken off;

On the report of Mr. Betoulle, Commissioner of the observations of SCP Waquet, Farge and Hazan, lawyer for the estate management company Wattignies Clichy (Igcw) of Me Nervo, lawyer of the French Society of Management Studies and investment (sofregit) of Me White, counsel for the co-owners of the building at 13 rue de Clichy, 75009 Paris, represented by its trustee company Property Paris-Nord, the conclusions of Mr. Baechlin, lawyer General, Mr. BEAUVOIS, President.

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