Sections de l’article
Some information is mandatory through standard clauses, other clauses are left to the discretion of the parties.
But the real estate lease agreement often has to contain other ancillary elements.
Mandatory mentions
First of all, the identity of the signatories must be clearly and with sufficient information about them. Precision is required when, for example, the landlord is an undivided tenant, or when the tenant is in cohabitation and his partner also wishes to have the status of taker.
The purpose of the contract is also a significant element to be specified: it is the housing, its location, its technical characteristics…
Another essential element to include is the rent to be paid by the tenant and the periodicity of his due, as well as possibly the terms of revision.
The determination of the amount of rent at the beginning of the lease was free until August 2012, before the Alur Act came into force.
Today, this faculty has been abolished by the Duflot Act, particularly in geographical areas where the tax on vacant housing is applicable.
From now on, in these areas, it is imperative that the landlord respect a legal ceiling set annually by prefectural decree.
It determines for each year the maximum amount applicable by housing category and geographic area. Apart from the new rentals, the setting of rent during a rental after the departure of a former tenant is also strictly supervised.
Thus, in such situations, the amount set must not be higher than that paid by the former tenant unless the IRL has a tangible increase (the Rent Reference Index). This principle applies as much to the areas affected by the Alur act as those that are not.
The rent review
The principle of rent review can only apply if it was expressly provided for in the lease, once a year, and on the anniversary date of the lease’s conclusion.
This revision is strictly regulated by law. Thus, it cannot be greater than the annual variation in the Rent Reference Index (IRL).
Just apply the following formula:
Amount of current rent (excluding charges) x IRL for the current year/IRL of the previous year.
In the event that the owner has forgotten to apply annual revisions since the lease came into effect, the law allows him to recover only the last 5 years.
The lease also mentions the security deposit paid by the tenant
The security deposit is a sum that is systematically demanded by the lessor before taking possession of the premises, and is a sum that is a guarantee of certain claims that the landlord may have against the tenant, and which must be included in the lease.
These claims may be unpaid rents, or payment of the repair of damages made in the leased property during the term of the lease.
The lessor will reimburse himself on the amount of the security deposit.
This security deposit is due regardless of the type of lease envisaged (empty or furnished rental), however the law allows to provide a security deposit equivalent to two months’ rent (excluding charges) for a furnished tenancy, while it is capped at one month for an empty tenancy
For seasonal rentals, it is left to the free discretion of the parties.
The tenant must pay for it at the signing of the tenancy agreement.
However, given the size of the amounts to be paid at that time, tenants can benefit from the assistance of public entities to pay for it.
In this case, the security deposit can then be paid for example by the Solidarity Housing Fund (FSL) or other similar public entities.
At the end of the tenancy, the security deposit will be returned to the tenant in its entirety if the tenant is not liable for any sum to the lessor.
If, on the other hand, the state of the exit areas reveals damage to the rented property, the lessor is entitled to deduct the amount of repairs to the security deposit, he will then have to return the remainder to the tenant.
The landlord has a maximum of two months from the delivery of the keys by the tenant.
If the parties do not agree on the amount of money to be returned or on the very principle of a refund, they can refer the matter to the departmental conciliation committee.
If this entity does not satisfy them, they may then consider taking legal action.
The ancillary elements to the lease
A real estate lease is the main element of the lease. However, it is almost always accompanied by ancillary elements that act as annexes to the contract.
The state of play
is the first element accompanying the lease agreement.
It is a document to trace the condition of the dwelling and any damage prior to entry into the premises. It must be inventoried in the presence of the tenant and attached to the contract.
Established in principle at two key times: at the time of entry into the premises and then at the end of the lease before leaving the premises, the condition of the premises is a very important procedure in the content of the lease.
Its purpose is to see the general aspect of housing. This is repeated twice for comparative purposes.
Indeed, at the end of the lease, the lessor will be able to check whether the tenant has complied with his legal obligations of maintenance and repair during his stay.
With this in mind, if the final state of the premises reveals damage to the original condition of the dwelling, the lessor will compensate for the security deposit that the tenant had to pay at the beginning of the lease.
Conversely, if the state of the exit area does not reveal any deterioration, the owner will have to reimburse the purchaser the entire deposit advanced.
The establishment of the state of entry and exit is normally the responsibility of the tenant and the lessor, in order to avoid further challenges. Both sides agree on the findings.
Where there is disagreement in the establishment of the state of the premises, the parties may call in a judicial officer.
With this in mind, the findings identified by this public officer will then automatically impose themselves on the parties in the event of litigation.
It is established either on free paper or on a pre-defined form, in as many copies as there are parts, but it can be established in a single copy if the findings have been made in a contradictory manner.
It must be dated and signed by the parties.
Finally, it should be noted that since the adoption of the Alur-Duflot Act, the tenant is allowed to request a change in the state of entry 10 days at the latest, after entering the premises, to allow him to mention undis revealed damage at the time of his establishment. If the lessor refuses to accede to this request, the tenant has the opportunity to refer the matter to the departmental conciliation commission.
If no status has been prepared at the tenant’s entrance, the landlord will be able to avail himself against him of a presumption of receipt in good condition, and the taker may be obliged to compensate the lessor for any pre-existing damage upon entering the premises, unless he can prove the disorder (dated photos), or the owner’s refusal to make this observation.
Real Estate Diagnostics
In addition to the condition of the premises, the lessor must provide the lessor with one or more real estate diagnoses to certify various technical data related to the characteristics of the building. For an empty rented dwelling, the state of the premises and the real estate diagnoses are sufficient to be attached to the contract.
On the other hand, in the case of renting a furnished dwelling, it is necessary to add to this a list of furniture and equipment of the dwelling.
In practice, the signing of the tenancy agreement is not a sufficient guarantee of security for the lessor who thus asks for a joint guarantee, i.e. a third person receiving “incidental” (the surety), in the event that the principal debtor (the tenant) is failing.
Bond contract
The bonding agreement is then attached to the lease agreement.
To pay someone’s deposit is to pay the sums due in their place when they are insolvent or failing.
There are two types of bonding, simple bonding and solidarity bonding.
The simple surety will have the opportunity to require the creditor to sue the principal debtor first in payment of the sums due. He will only be forced to pay these debts if the prosecution has been unsuccessful.
On the contrary, the solidarity bond will be required to settle the sums due by the principal debtor at the creditor’s first request, which means that as soon as the tenant is ordered to pay the rents, the lessor will be able to directly “tax” the amount with the deposit.
After she has paid, the surety will be able to turn against the principal debtor to recover the sum she has advanced for her benefit.