Burden Of Proof
LexInter | March 17, 2003 | 0 Comments

Burden Of Proof

THE COURT OF CASSATION, THIRD CIVIL CHAMBER.

March 1, 2000. Judgment n ° 340. Cassation.

Appeal No. 98-18.787.

CIVIL BULLETIN – INFORMATION BULLETIN.

 Texier, Jean-Luc ,         The small posters, n ° 209, October 19, 2001, pp. 16-18  

On the appeal brought by Mrs. Djemila Nasseur, wife Ladjal, domiciled in restaurant ‘la Félouque’, 165 Boulevard du Montparnasse, 75006 Paris, in cassation of a judgment rendered on April 30, 1998 by the Paris Court of Appeal (16th chamber, section B), in favor of Mrs. Jeanne Touluch, wife Valat Madaule, residing at 27, rue Campagne Première, 75014 Paris, defendant at the cassation;

The plaintiff invokes, in support of its appeal, the two grounds of cassation annexed to this judgment;

Means produced by SCP Delaporte and Briard, lawyer with the Councils, for Mrs. Djemila Nasseur, divorced Ladjal.

FIRST MEANS OF TERMINATION

The judgment criticized for having ruled that the price of the renewed lease for the premises rented by Mrs. VALAT MADAULE to Mrs. NASSEUR-LADJAL (the court wrote NADJAL by mistake) to 165, is criticized. bd Montparnasse,

FOR THE REASONS THAT the designation of places contained in the expired lease is:

‘On the ground floor: a shop on boulevard Montparnasse, to the right of this shop a corridor with door to the left of the shop; a WC: at the end of the corridor.

In the basement which is accessed by a trap door in the shop and by a staircase, 2 cellars and a basement giving access to rue Notre-Dame-des-Champs.

Following the shop and at the back, small staircase leading to an apartment made up of three rooms, storage kitchen, overlooking rue Notre-Dame-des-Champs’

that the designation of the places as it results from the expert report is:

‘on the ground floor :

. a showcase restaurant room on the street, with a covered terrace on the sidewalk, authorized by the City of Paris,

. a back store with window on Notre-Dame-des-Champs street,

. a kitchen,

. a small room,

in the basement :

. a bar and a restaurant room, on paved floors, not in use, with kitchen,

. male and female health group,

. cement floor cellar

that under the terms of article 23-6 of the decree of September 30, 1953, a significant modification of the elements mentioned in articles 23-1 to 23-4, justifies an uncapping of the price of the rent; that it is the lessor who invokes it as a reason for uncapping to report proof of a modification;

in the present case, the proof of the modification results from the comparison of the description contained in the lease and findings of the expert;

that concerning the date of the work, the leases of 1964 and 1984 (effective July 1, 1982) authorize the lessee to carry out all development and modernization work, even by removing the existing partitions, provided that they are not not a common part of the building and that this work does not affect the solidity of the building; that the leases also provide that for this work, the lessee must first obtain the approval of the building manager and, in the event of authorization, that they must be carried out under the supervision of the architect of the lessors whose fees will be the responsibility of the lessee;

that if Mrs. LADJAL produces a certificate from Mrs. LOISON which indicates: ‘I bought in 1964 a business’ café wood charcoal’ that I completely transformed to create the restaurant ‘Les Arêtes’. I sold this business in 1985 in the state of its creation ‘, it does not contribute to the debates any evidence that the authorization of the trustee was requested, nor the intervention of the architect of the lessor; that no element is given as to the extent of the work which was carried out by Mrs. LOISON;

that Mrs. LADJAL produces six customer certificates which certify that they have known for a very long time (1966, 1967, 1982) the dining room going from the rue du Montparnasse to the rue Notre-Dame-des-Champs; that however these certificates, which relate only to the dining room of the ground floor, are insufficient to demonstrate that all the development work were carried out prior to the lease expired;

that it should be remembered that the basement, for which no certificate is produced, has been completely overhauled, since what was qualified as ‘basement’ in the lease and ‘reserve’ on the co-ownership plan, is become a bar and a dining room; such a modification can not be that notable, the part accessible to customers having been considerably enlarged, even if at the time of the visit of the expert, this part of the premises seemed not to be exploited;

that Mrs. LADJAL argues that in any event, the lessor can not avail itself of the modification of places, except to prove that it has assumed the load of work; that such an argument is irrelevant insofar as the tenant does not itself provide proof of the date of this work, since the only consequence would be to postpone the effect of this work on the removal of the ceiling at the end of the lease according to the lease during which the work was carried out;

that Mrs. NADJAL thus proves neither that all the work of modification of the premises were carried out prior to the expired lease, nor that the lessors would have been aware of these works, in particular by the authorizations to be requested;

that all of the leased places is now assigned to commercial use while the contractual destination is the home of the taker; that this is again a significant change in the allocation of premises;

ALORS ON THE ONE HAND THAT the significant modification of the characteristics of the premises mentioned in article 23-1 of the decree of September 30, 1953 can only concern the course of the lease to be renewed until the effective date of the new lease; that it is the lessor who requests the uncapping for the rent of the renewed lease to prove that the alleged modification has intervened during the course of the lease expired and not during a previous lease; that by pronouncing the removal of the limit on the rent of the renewed lease, after noting that the tenant proved neither that all the work to modify the premises had been carried out prior to the expired lease, nor that the lessor had knowledge of it, the Court of appeal reversed the burden of proof and therefore violated articles 1351 of the Civil Code,

ON THE OTHER HAND AND SUBSIDIARY THAT once the Court of Appeal admitted the existence of a significant modification of the premises likely to justify a removal of the capping, it necessarily considered that these modifications had been made during the expired lease ; that it follows from article 23-6 of the decree of September 30, 1953 that the improvements made to the leased premises can only justify an uncapping of the rent during the renewal of the lease on condition that the owner has assumed the responsibility, directly or indirectly; that by rejecting the subsidiary plea of ​​Mrs NASSEUR-LADJAL based on the fact that, in any event, the lessor had not assumed the charge of the improvement work on which it relied,

THEN FINALLY AND IN ANY CASE THAT the significant modifications made to the leased premises, when they constitute improvements, can only justify the removal of the rent ceiling during the second renewal following the lease during which the work was carried out, unless that the lessor proves having directly or indirectly assumed the cost of the work; that in the presence of such improvements, it is the lessor who claims the uncapping of the rent to prove either that he has assumed the load or that they were made during the lease preceding the lease expired; that in her conclusions duly served on December 17, 1996, Mrs. NASSEUR-LADJAL had argued in the alternative, in the event that it would be judged that the premises had been modified during the expired lease, that the modifications alleged by the lessor constituted improvements of the places rented and that they could not justify the decapping of the rent since the lessor did not prove to have assumed the load directly or indirectly; that to authorize the removal of the limit on the rent of the renewed lease, the Court of Appeal found that the leased premises had been the subject of significant modifications, the basement in particular having been transformed into a bar and a dining room from which it resulted that it had been the object of an improvement; that nevertheless ordering the removal of the limit on the rent of the renewed lease after having only noted that Ms. NASSEUR-LADJAL did not prove that the contested work had been carried out during the expired lease, the Court of

SECOND SUBMISSION OF TERMINATION (subsidiary)

The judgment criticized is criticized for having judged that the assignment of the leased premises had been the subject of a significant modification and for having consequently granted the request to remove the cap from the price of the renewed lease for premises rented by Mrs. VALAT MADAULE to Mrs. NASSEUR-LADJAL (the court writes NADJAL by mistake) at 165, bd Montparnasse,

FOR THE REASONS THAT the designation of places contained in the expired lease is:

‘On the ground floor: a shop on Boulevard Montparnasse, to the right of this shop a corridor with a door to the left of the shop; a WC: at the end of the corridor.

In the basement which is accessed by a trap door in the shop and by a staircase, 2 cellars and a basement giving access to rue Notre-Dame-des-Champs.

Following the shop and at the back, small staircase leading to an apartment made up of three rooms, storage kitchen, overlooking rue Notre-Dame-des-Champs’

that the designation of the places as it results from the expert report is:

‘on the ground floor :

. a showcase restaurant room on the street, with a covered terrace on the sidewalk, authorized by the City of Paris,

. a back store with window on Notre-Dame-des-Champs street,

. a kitchen,

. a small room,

in the basement :

. a bar and a restaurant room, on paved floors, not in use, with kitchen,

. male and female health group,

. cement floor cellar

that under the terms of article 23-6 of the decree of September 30, 1953, a significant modification of the elements mentioned in articles 23-1 to 23-4, justifies an uncapping of the price of the rent; that it is the lessor who invokes it as a reason for uncapping to report proof of a modification;

in the present case, the proof of the modification results from the comparison of the description contained in the lease and findings of the expert;

that concerning the date of the work, the leases of 1964 and 1984 (effective July 1, 1982) authorize the lessee to carry out all development and modernization work, even by removing the existing partitions, provided that they are not not a common part of the building and that this work does not affect the solidity of the building; that the leases also provide that for this work, the lessee must first obtain the approval of the building manager and, in the event of authorization, that they must be carried out under the supervision of the architect of the lessors whose fees will be the responsibility of the lessee;

that if Mrs. LADJAL produces a certificate from Mrs. LOISON which indicates: ‘I bought in 1964 a business’ café wood charcoal’ that I completely transformed to create the restaurant ‘Les Arêtes’. I sold this business in 1985 in the state of its creation ‘, it does not contribute to the debates any evidence that the authorization of the trustee was requested, nor the intervention of the architect of the lessor; that no element is given as to the extent of the work which was carried out by Mrs. LOISON;

that Mrs. LADJAL produces six customer certificates which certify that they have known for a very long time (1966, 1967, 1982) the dining room going from the rue du Montparnasse to the rue Notre-Dame-des-Champs; that however these certificates, which relate only to the dining room of the ground floor, are insufficient to demonstrate that all the development work were carried out prior to the lease expired;

that it should be remembered that the basement, for which no certificate is produced, has been completely overhauled, since what was qualified as ‘basement’ in the lease and ‘reserve’ on the co-ownership plan, is become a bar and a dining room; such a modification can not be that notable, the part accessible to customers having been considerably enlarged, even if at the time of the visit of the expert, this part of the premises seemed not to be exploited;

that all of the leased places is now assigned to commercial use while the contractual destination is the home of the taker; that this is again a significant change in the allocation of premises;

ALORS ON THE ONE HAND THAT in her certificate of June 8, 1994, duly communicated and produced before the Court of Appeal, Mrs BOUDAN, who lives at 167 Bd du Montparnasse, certifies that no modification has been made in the restaurant ‘La Felouque’ since January 1967 bearing the sign ‘Les Arêtes’; that results from the clear and precise terms of this certificate that it relates to all the premises in question and not only on the dining room of the ground floor; that by affirming that the certificates produced relate only to the dining room on the ground floor and that none is produced concerning the basement, the Court of Appeal distorted the clear and precise terms of the certificate of Mrs. BOUDAN and therefore violated article 1134 of the Civil Code;

ALSO ON THE OTHER HAND THAT the Court of Appeal expressly noted that Mrs. NASSEUR-LADJAL produced six customer certificates which certify that they have known for a very long time (1966, 1967 and 1982) the dining room going from the rue du Montparnasse at rue Notre-Dame-des-Champs, that is to say the dining room on the ground floor, where, according to the statements of the first lease, taken over by the Court of Appeal, the residential part of the premises was located; that Mrs. NASSEUR had thus proved that the modification of the assignment of this part of the premises went back to the sixties and could not therefore justify the uncapping of the rent of the renewed lease of Mrs. NASSEUR; that by nevertheless retaining this modification to justify the removal of the cap on the rent of the renewed lease, the Court of Appeal violated the

THE COURT, in the public hearing of January 26, 2000, where were present: Mr. Beauvois, president, Mrs. Fossaert-Sabatier, referendum adviser rapporteur, Miss Fossereau, MM. Boscheron, Toitot, Mrs. Di Marino, Mr. Bourrelly, Mrs. Stéphan, MM. Peyrat, Guerrini, Dupertuys, Philippot, advisers, Mr. Pronier, referendum advisor, Mr. Sodini, advocate general, Miss Jacomy, chamber clerk;

On the first plea:

Having regard to article 1315 of the Civil Code;

Whereas, according to the judgment under appeal (Paris, April 30, 1998), that Ms. Valat Madaule, owner of commercial premises leased since 1964, granted her tenant Ms. Ladjal a leave with an offer of renewal for July 1 1991 at an increased rent; that Mrs. Ladjal assigned the lessor in fixing the rent in application of the indices;

Whereas to reject this request and accept the request for fixing the rent to the rental value, the judgment retains that the basement, originally appearing as a reserve, has been completely redesigned and has become a bar and a bathroom. restaurant, that such a modification can not be that notable, the part accessible to the customers having been considerably enlarged and that Mrs. Ladjal does not prove that all the works were carried out prior to the expired lease;

That by ruling thus, the Court of Appeal, which reversed the burden of proof, violated the aforementioned text;

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

BREAK AND ANNUL, in all its provisions, the judgment rendered on April 30, 1998, between the parties, by the Paris Court of Appeal; returns, consequently, the cause and the parts in the state where they were before the aforementioned judgment and, to be done right, returns them before the court of appeal of Versailles;

Orders Ms. Valat Madaule to pay the costs;

Considering article 700 of the new Code of Civil Procedure, condemns Ms. Valat Madaule to pay Ms. Nasseur the sum of 9,000 francs;

Considering article 700 of the new Code of Civil Procedure, rejects the request of Mrs. Valat Madaule;

Said that on the due diligence of the Attorney General near the Court of Cassation, this judgment will be transmitted to be transcribed in the margin or following the quashed judgment.

On the report by Ms. Fossaert-Sabatier, referendum advisor, the observations of SCP Delaporte and Briard, lawyer for Ms. Ladjal, Me Boullez, lawyer for Ms. Valat Madaule, the conclusions of Mr. Sodini, Advocate General, and after having deliberated in accordance with the law; M. BEAUVOIS president.

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