Loss of enjoyment (perte de jouissance)

Perte de jouissance (loss of enjoyment) is the loss suffered by someone who cannot use their property as they should: a flat uninhabitable during remedial works, a room condemned by damp, a garden unusable because of a neighbouring building site, a house delivered late. It does not concern the value of the property but its use, for a limited time. Once the defect is repaired, the loss of enjoyment ceases; the loss of value, for its part, may remain.

This head of loss is recognised in every kind of property dispute: builders’ liability, hidden defects, neighbourhood disturbance, co-ownership, leases. It is often claimed without being quantified with any method, which leads to lump-sum awards. A valuation report gives it an objective basis.

Where the rule comes from

The principle of full compensation, applied under article 1240 of the French Civil Code in tort and article 1231-1 in contract, requires every certain loss to be compensated, including deprivation of use. In neighbourhood matters, article 1253 compensates the damage resulting from an abnormal disturbance, which includes the inconvenience suffered while it lasts. Trial judges assess the amount at their discretion, provided they give reasons.

There is no scale. Judicial practice consists in relating the inconvenience to the rental value of the property: total deprivation of use is worth the rent the property would have produced, partial deprivation a fraction of that rent, in proportion to the part of the property or of the time concerned.

In a valuation report

I begin by establishing the market rental value of the property, as defined by the Charte de l’expertise en évaluation immobilière (the French property valuation charter, Title III, § 1.4), as if it were let vacant and in good condition. I then describe the disturbance and its duration, with supporting documents: bailiff’s reports, technical reports, dates of works. I estimate the fraction of enjoyment lost: one bedroom out of three unusable, a living room deprived of light for part of the day, a dwelling wholly uninhabitable. The product of the rental value, the fraction and the duration gives the amount. The report presents any loss of value separately, to avoid double counting.

Example

A 70 m² flat in RENNES, with a rental value of €850 a month, suffers water ingress that makes a bedroom and part of the living room unusable for twenty-two months, the time it takes the co-ownership to have the roof repaired. I adopt a fraction of enjoyment lost of 35 %. The loss of enjoyment comes to 850 × 35 % × 22, that is €6,545. If the ingress has left lasting marks that will weigh on resale, a loss of value is quantified separately.

Not to be confused with

Loss of value, which measures a lasting fall in value, and the occupation indemnity, owed by someone who occupies a property without entitlement.