Commentary by Robert Boisbouvier, Partner and Sophie Leclerc, Manager

Article 8 of the 1989 Act prohibits subletting unless expressly authorised by the landlord. Judges hearing an application for judicial termination have full discretion to assess the seriousness of the facts.

Impact of this court ruling :

The frequency of the sublets made, accredited by the “super host” status granted on Aibnb, justifies the termination of the lease, in addition to the restitution of the undue sublets.

Agen Court of Appeal,^1st civil chamber 24 November 2021

Article 8 of the law of 6 July 1989 prohibits subletting, unless the lessor expressly agrees. Unlawful subletting may therefore lead to termination of the lease, in addition to a claim by the landlord for restitution of the sublets obtained from the subtenant.

However, it should be emphasised that subletting is not one of the grounds for enforcing a resolutory clause. It is therefore only by means of an application for judicial termination that the lessor can put an end to the lease, an action subject to the judge’s discretion, as demonstrated by this decision.

The court of first instance had refused to terminate the lease, while ordering the tenant spouses jointly and severally to reimburse the landlord for all sublet sums received. In the judge’s view, the subleases did not justify termination, as they were not, in his words, “a breach of contract such as non-payment of rent”.

The seriousness of the situation arose from the frequency of these clandestine sublets via the Airbnb platform. Proof was provided that 15 nights were rented in 2016, 24 in 2017 and 27 in 2018. This frequency had also enabled the tenants to obtain “super host” status . This status is granted via Airbnb when, among other criteria, the host, in this case the tenant, has organised at least 10 stays over the past year or at least 3 stays for a total of at least 100 nights.

In addition to this major infringement of the contractual prohibition on clandestine subletting, this activity had caused significant disturbance to other occupants of the building.

Hence this reversal, which allowed the lease to be terminated.