(Cass. 3rd civ., 15 September 2010)

In a decision dated 15 September 2010, the 3rd Civil Chamber of the Court of Cassation stated that the invalidity of a notice to leave issued by means of a registered letter with request for acknowledgement of receipt is a relative nullity which only the evicted tenant may cite in its favour.

In this case, the landlord had issued a notice to leave to his tenant, without an offer of renewal, by registered letter with return receipt requested.

However, under article L 145-9, paragraph 4 of the Commercial Code "the notice must be given by extra-judicial means" (which refers to notice delivered by a court officer – “huissier de justice”).

The tenant, after leaving the premises, therefore challenged the legality of the process and claimed to be entitled to an eviction indemnity.

In reply, the landlord argued that, given the error, the notice to leave was void and the lease should be continued by tacit agreement.

The Court of cassation held, in stating a basic rule of law applicable to the case, that "a lessor who has notified his tenant to leave by registered letter with return receipt requested cannot rely on the invalidity of the notice he has himself issued."

The Court of Cassation thus upholds the decision of the trial court, which considered that while the tenant had a right to challenge the validity of the notice to leave and to stay in the premises, the mere fact that he did not exercise the right did not authorise the lessor to reverse the situation by claiming that the tenant had voluntarily terminated the lease and thus waived his rights to an eviction indemnity.