How can I legally sublet my furnished tourist apartment when I am a tenant?

The rental of furnished tourist accommodation between individuals has grown considerably due to the popularity of seasonal rental platforms. Attracted by this new source of income, a large number of tenants sublet their apartments to passing customers, sometimes without seeking prior authorization from their lessor. So how can you be in compliance and take advantage of this opportunity? Our expert Lorène DERHY, Lawyer expert in seasonal rentals , can enlighten you.

Step 1: Check the co-ownership regulations

If your accommodation is part of a co-ownership, you must ensure that the co-ownership regulations do not oppose or authorize seasonal rental activity.

If you live in a student residence or in social housing, it is prohibited to carry out any subletting activity, otherwise you risk having your lease terminated and liable for damages.

Step 2: Request written authorization from the lessor on the principle of subletting

Subletting occurs when the holder of a rental contract partially or entirely makes his or her accommodation available to a person in exchange for financial compensation.

With regard to empty or furnished rentals constituting the tenant's main residence, article 8 of the law of July 6, 1989 provides that the tenant cannot sublet his accommodation except with the written agreement of the lessor. On this point, it is recalled that the main residence is the accommodation occupied at least 8 months per year, except for professional obligations, reasons of health or force majeure.

In practice, most residential leases expressly provide for a clause prohibiting subletting on pain of termination of the lease. If this is the case, the tenant must request express written authorization from their lessor both on the principle of subletting and on the amount of the rent as explained in Step 3 below.

Step 3: The amount of the sublease rent is capped

Article 8 of the law of July 6, 1989 provides that the amount of sublet rent cannot exceed that paid by the main tenant.

In other words, the tenant cannot receive a sub-rent greater than that which he himself pays to his lessor.

For example, if you rent your accommodation for €1,200/per month, and you wish to sublet it seasonally, you cannot generate more than €1,200 in income per month.

In conclusion: to be able to legally sublet their accommodation, the tenant must obtain express and written agreement from the lessor both on the principle of subletting and on the price of the rent. To do this, the tenant must have previously made an official request to his lessor, explaining in particular the rent he will ask for, or at least explaining to him that it will not exceed the price of the rent for his accommodation.

Step 4: The sublet duration is limited to 120 days/calendar year

Subletting is only possible if it is the tenant's main residence.

In such a case, the tenant can only sublet his accommodation for the legal limit of 120 days during the same calendar year, except for professional obligations, reasons of health or force majeure. (L324-1-1 IV of the Tourism Code).

Exception: the tenant can sublet a room of his accommodation all year round, and not his entire accommodation, without legal limitation of 120 days, if the lessor authorizes him but on the condition that the price of the rent per meter square of habitable space of the sublet premises is greater than that which he pays.

For all purposes, the furnished accommodation must comply with the provisions of article 2 of the Decree of July 31, 2015 n°2015-981, which establishes the list of items of furniture that a furnished accommodation must contain at least , which are listed below -After :

• bedding (with duvet or blanket),
• curtains, shutters, blinds... in the bedrooms,
• hotplate, burner, stove,
• a traditional oven or microwave,
• a refrigerator with at least one freezer,
• enough dishes for occupants to eat meals
• kitchen utensils,
• a table and seats,
• storage shelves,
• lighting fixtures,
• housekeeping equipment (vacuum cleaner if there is carpet, broom and mop, etc.)

Step 5: The formalities to be completed

In addition to this, there are other obligations incumbent on the tenant, namely:

1. Pay the tourist tax
2. Register your furnished accommodation via an online declaration to the town hall of the rented premises, in municipalities with more than 200,000 inhabitants, those in the departments of Hauts-de-Seine, Seine-Saint-Denis and Val-de-Marne, or in certain towns with more than 50,000 inhabitants which have decided to opt for this declaration regime (Art L324-1-1 of the Tourism Code). Under this procedure, the tenant will obtain a number which he must enter on each of his advertisements.
3. Declare rents to taxes from tourist sublets. Since January 1, 2019, platforms are obliged to declare your income to the tax authorities.

Step 6: What sanctions do I face in the event of illegal subletting?

With regard to the Municipality

Article L324-1-1 of the Tourism Code sets out the sanctions to which any furnished rental company is exposed vis-à-vis the Municipality:

• €5,000 in the event of absence of registration of furnished accommodation in municipalities with more than 200,000 inhabitants, or in towns with 50,000 inhabitants having opted for the tele-declaration regime for furnished accommodation

• €10,000 in the event of non-compliance with the legal limit of 120 days/calendar year, except for just cause (professional reason/health/force majeure)
• €50,000 if the accommodation actually constitutes a second home

Towards the lessor

In the absence of express written authorization from the lessor or contrary mention in the lease, the tenant who sublets his accommodation on an Airbnb-type platform commits a breach of his contractual obligations, and is exposed to heavy penalties. consequences in the event of legal action by its lessor.

Indeed, the latter can initiate eviction proceedings against him before the Judge of Disputes for the Protection of the place where the accommodation is located but also request compensation for his moral and financial damage in the event of deterioration, in addition to reimbursement of the all of the sub-rents he will have received.

To note :

Since January 1, 2019, platforms have been required to limit accommodation declared as primary residences to 120 days, so that rental companies can respect this rule. To date, the AIrbnb platform - as well as each member platform of the UNPLV (the National Union for the Promotion of Vacation Rental) - has applied this automatic limit in 18 cities in France, namely: Aix-en Provence, Annecy, Bordeaux, Levallois-Perret, Lille, Lyon, Martigues, Menton, Neuilly-sur-Seine, Nice, Nîmes, Paris, Roquebrune-Cap-Martin, Saint-Cannat, Saint-Paul-de-Vence, Sète, Versailles and Villeneuve-Loubet.

As soon as this maximum threshold has been reached, the tenant will receive an email or an alert on their Internet account informing them that they will no longer be able to receive new reservations.

‍

For more information on this subject, you can consult this video by Me Derhy.

‍

This article was written by Maître Lorène DERHY, founder of the DERHY AVOCAT Cabinet specializing in real estate law and seasonal rentals.

The DERHY AVOCAT Firm is recognized as one of the best specialists in furnished tourist rentals such as Airbnb. As such, Lorène DERHY is regularly called upon in her capacity as an expert in the press and media to comment on legal news in this area.

Main adversary of the City of Paris, the DERHY AVOCAT Firm assists, advises and defends:

- owners or tenants controlled and/or assigned by the City of Paris for their furnished tourist rentals.

- digital platforms and tourist intermediaries (short-term rental concierge / real estate agents)

He also assists and represents:

- landlords who wish to recover civil benefits from their tenant as a result of their illegal subletting activity but also obtain their eviction.

- co-ownership associations which wish to put an end to seasonal rental activity against a co-owner,

- owners who are the subject of a formal notice or legal proceedings with a view to having their activity cease by their trustee.

Finally, the DERHY AVOCAT firm also supports investors wishing to transform their premises into furnished tourist accommodation, advising them on the legality of such a project both from an urban planning point of view and with regard to their co-ownership regulations.