Illegal “Airbnb” sublease: conviction of the tenant confirmed!

On July 26, 2018, I spoke about an important decision about the Airbnb sublease. Tenants had been ordered to reimburse the rent because they had not asked the landlord for permission. (See article here). It was important for the Supreme Court to examine the subject.

This decision was the subject of an earthquake among investors and tenants.

The Appeal  Court had ordered the tenants to reimburse their landlord for all of the rents from an illegal Airbnb sublet. Indeed, they had not asked the owner for permission to sublet.

The Appeal Court was based on article 546 of the Civil Code: the ownership of a thing gives rights to everything it produces.

The tenants then appealed to the Supreme Court.

The convicted tenants reasoned their appeal on two grounds.

On the one hand, they considered that the subleases received by a tenant in respect of a sublet did not constitute civil fruit belonging to the lessor by accession but the economic equivalent of the right of enjoyment conferred on the lessee.

On the other hand, they considered that an irregular sublet was unenforceable against the owner produced all its effects between the main tenant and the sub-tenant. The tenant would therefore be the creditor of the sub-rents.

Logically, the Supreme Court rejected this argument. It confirmed the position of the Paris Appeal Court

The Court stated that, except when the subletting was authorized by the lessor, the sub-rents received by the lessee constitute civil fruits which belong by accession to the owner. The Court then confirmed the tenants’ order to reimburse the owners of all the rent collected.

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Useful links :

Court of Cassation: judgment of the Court of Cassation 12/09/2019 n ° 18-20.727

Airbnb website: reminder of the importance of checking local and tax regulations