First of all, and it’s important to point this out, the landlord can take action as soon as the first rent arrears.
Landlords are advised to take action from the very first unpaid rent, because the more the tenant’s debt increases, the less chance the landlord will have of fully recovering the sums owed.
In addition, waiting for the debt to worsen has another consequence for the landlord: that of the extinctive effect of prescription on the debt. In other words, the landlord loses his right to recover arrears of rent and service charges on a residential lease through inaction. The statute of limitations is 3 years, whether the tenant is still in the premises or has left.
When it comes to unpaid rent, the idea is for the landlord to take progressive steps. This gradation has two aims: the first is to get the tenant to react, and the second is to multiply the evidence of information and reminders to the tenant with a view to possible legal proceedings.
Having made this bold assumption, let’s get back to basics: what to do in the event of unpaid rent?
There are several solutions available to landlords.
Sommaire
Amicable collection of unpaid rent
Putting the tenant on formal notice
Regardless of the type of lease used, in the event of late payment of rent, the landlord can first send a simple reminder by post. If the tenant still fails to pay, the landlord must send a letter of formal notice to pay the rent within a week, by registered letter with acknowledgement of receipt.
If these steps are only indicative and non-binding, the judge may decide that the landlord is willing to collect his debt amicably before taking legal action.
The owner can also call on the services of a conciliator, free of charge, to find an amicable solution to the dispute. A list of conciliators is available from the cour d’appel.
By using the security deposit or unpaid rent insurance
To recover unpaid rent, the landlord must contact :
- Either the person who guaranteed the tenant, if there is one,
- or their insurer, if they have taken out insurance to cover unpaid rent,
- or Action Logement, if the tenant has taken out the Visale guarantee.
Find out more about the difference between security deposit and unpaid rent insurance.
In addition, if the tenant is in receipt of housing assistance, the landlord must notify the Caisse d’Allocations Familiales (CAF).
The CAF considers a tenant to be in arrears as soon as his or her debt equals twice the amount of the rent excluding charges. You therefore have to “wait” for the debt to increase before taking this step.
Lease termination as a consequence of unpaid rent
Termination of the residential lease
In the second stage, the landlord can invoke the resolutory clause in the rental contract. This clause stipulates that the lease will be automatically terminated in the event of non-payment of rent and/or service charges on the agreed due dates. The “anti-squat” law of June 2023 makes this clause automatic in residential leases.
The landlord must instruct a commissaire de justice to issue the tenant with a summons to pay the sums due.
The tenant then has 2 months to pay the sums due, plus the bailiff’s fees.
At this point, the tenant can apply to the judge for an extension of the payment deadline, by taking the matter to the tribunal d’instance.
If the tenant still fails to pay the sums due, the landlord can refer the matter to the juge de contentieux de la protection to declare the lease terminated and order the tenant’s eviction. The minimum period between the summons to pay and the writ of summons – which starts the proceedings – is 6 weeks.
If the judge considers that the tenant is in a position to pay the unpaid rent, he may grant him a deferment of payment. The effects of the resolutory clause in the lease contract will then be suspended. In other words, the clause under which the lease could be terminated in the event of unpaid rent will be frozen.
Legal termination of the lease
If the lease contract does not contain a resolutory clause and was signed before the “anti-squat” law of June 2023, or if the contract is verbal, the landlord must summon his tenant before the juge des contentieux de la protection to obtain termination of the lease, eviction of the tenant and an order to pay the landlord the unpaid rent.
The judge may either decide to grant a deferment of payment if he considers that the rental debt can be cleared, or order the termination of the lease and eviction of the tenant.
In the case of unpaid rent, the eviction procedure must be carried out by a bailiff. Please note: there are strict deadlines for evicting tenants, and no rental evictions can take place during the winter truce period, which runs from November 1 to March 31 in mainland France.
Condemnation of the tenant to pay unpaid rent
In addition to terminating the lease and evicting the tenant, the judge will order the tenant, and any guarantor, to pay all sums due to the landlord, including unpaid rent, arrears of service charges and the costs of the proceedings.
On the strength of this judgment, the landlord can call in a bailiff, who, if the tenant and/or guarantor fail to pay, can seize bank accounts, wages, furniture, vehicles, and so on.
We therefore understand the particular care that needs to be taken when compiling the tenant’s file, so as to have the information required for seizure by a bailiff in the event of legal proceedings.
This also means that the real estate agency may be held liable for any unpaid rent if it has chosen the wrong tenant or put together the wrong file.
Caution: all steps taken by the landlord to recover the sums owed to him may be jeopardized by the over-indebtedness commission (commission de surendettement) which, if seized by the tenant, may propose a repayment plan, or even the cancellation of the debt.
