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Furnished tourist rentals and new obligations resulting from the Elan Law. By Ilanit Sagand, Lawyer.

I. Define the furnished tourist accommodation.

Whereas furnished accommodation was only defined in the implementing decree in article D 324-1 and not in the law. The legislator added an article.
Article L 324-1-1 of the tourism code specifies that furnished accommodation is furnished villas, apartments or studios, for the exclusive use of the tenant, offered for rental to passing customers who do not elect not domiciled and who stays there characterized by a daily, weekly or monthly rental.

II. Reinforce the obligations and control measures with regard to the lessor and the intermediaries.

1 / Prior declaration and registration of any rental.

The aforementioned article provides that in municipalities where the change of use of premises intended for housing is subject to prior authorization, this declaration since the Elan law must specify whether the furnished accommodation offered for rental constitutes the main residence of the renter.
Remember that well before the Elan law, a system of declaration to the mayor of the commune in which the building is located had been established, but this declaration was not compulsory when the rented premises constituted the principal residence of the lessor.

However, since Elan law if the property is located on the territory of a municipality where a prior declaration subject to registration is nevertheless imposed by the Municipal Council, the latter must now specify whether the property constitutes the principal residence of the lessor (it resides there as accommodation eight months a year).

Article L 324-1-1 III provides:
By way of derogation from II, in municipalities where the change of use of premises intended for housing is subject to prior authorization within the meaning of articles L. 631-7 to L. 631-9 of the building and construction code. housing, a deliberation of the municipal council may decide to submit to a prior declaration subject to registration with the municipality any rental of a furnished tourist accommodation.
The declaration indicates whether the furnished tourist accommodation offered for rental constitutes the principal residence of the lessor within the meaning of article 2 of the aforementioned law n ° 89-462 of July 6, 1989

The intermediary, namely the site for contacting the lessor and the lessee, must first inform the lessor of a furnished tourist accommodation of the prior declaration or authorization obligations incumbent on the lessor.

In a second step, the intermediary must ensure, and this upstream, since the Elan law is prior to the publication or posting of the advertisement, that the lessor has taken the necessary steps.

The latter must in particular produce a certificate on the honor of the respect of its obligations indicating if the accommodation constitutes or not its principal residence and its number of declaration if necessary [1].

2 / Maximum rental period.

The Elan law which modified article L 124-1-1 of the tourism code adds that in the municipalities where the registration procedure is implemented, the owner of a furnished tourist accommodation which is declared as his residence principal cannot rent beyond 120 days during the same calendar year. The only exception to this maximum number of days: professional reason, health reason or force majeure.

The municipality can now ask the lessor to send him the number of days during which the accommodation has been rented, and this until 31 December of the year following the year in which the furnished accommodation was rented.

However, the Municipality may also within the same period request the owner of the connecting platform for the number of days during which the furnished accommodation was rented through it.

Moreover, if the intermediary becomes aware of the exceeding of the limit of 120 days per calendar year, he must proceed with the withdrawal of the advertisement on his site.

Finally, sworn agents from the municipal or departmental service are empowered to monitor compliance with the obligations of rental companies and intermediaries.

III. Sanction stakeholders.

1 / Non-compliance with obligations by the lessor.

Anyone who has rented their accommodation without having made a prior declaration incurs a civil fine of a maximum amount of € 5,000.
Any lessor who rents tourist accommodation for more than 120 days per calendar year is liable to a civil fine not to exceed € 10,000.
Any lessor who has not responded to the municipality’s transmission request within the time limit is liable to a maximum fine of € 10,000.
Finally, the lessor who has not respected the procedure for changing the use of the premises may be liable to a maximum civil fine of € 50,000 as well as a penalty of € 1,000 maximum per day and square meter of the premises in question and incur the expulsion and execution of work at the expense of the offender.

2 / Non-compliance with obligations by intermediaries.

Intermediaries may also be subject to a civil fine in several cases.

1st case: They do not inform the lessor of his obligations, they do not obtain from the lessor the declaration on honor attesting to the respect of his obligations and indicating if the accommodation constitutes his principal residence or they do not publish the declaration number and in the advertisement.
In this 1st case, the intermediaries incur a fine of € 12,500 maximum.

2nd hypothesis: Failure to transmit to the municipality in the month of the request, the number of rental days for the furnished accommodation that was the subject of a request for information. In this case, the intermediary can be fined up to € 50,000.

3rd case: The intermediary does not withdraw the offer to rent a residence when the limit of 120 days during the calendar year is exceeded and therefore continues to offer the rental of furnished accommodation, the owner’s main residence.
In this case, the intermediary may also be fined a maximum of € 50,000 per advertisement for which there has been a breach.

The fine will be pronounced in the event of prosecution by the President of the Judicial Court (formerly TGI), ruling in the form of summary proceedings, at the request of the municipality, in which the furnished accommodation is located, it being specified that the amount of the fine will be returned to the municipality.

As we have seen, the Elan law has strengthened both the obligations of the lessor and the intermediaries, but also the sanctions against these parties.

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