A tenant of a building brought under an agreement with the State stops answering the annual income survey. The landlord applies a solidarity rent surcharge, has the lease terminated for non-payment and obtains an occupation indemnity. The Cour de cassation (the French supreme court for civil and commercial matters), in a reported decision of 16 October 2025, upholds the termination and the method of calculating the indemnity, but quashes the order to pay €32,345.48 because the Court of Appeal did not answer the argument based on the tenant’s modest income. An opportunity to recall what occupation without a right to be there costs, and how the sum due is calculated.
An indemnité d’occupation (occupation indemnity) is the sum owed by a person who occupies a property without a right to do so, for instance after the termination of a lease. The surloyer, formally the supplément de loyer de solidarité, is the rent surcharge payable by tenants of social or State-subsidised housing whose income exceeds the eligibility ceilings.
The facts
On 22 June 2010, a town acquired a building in which a tenant occupied a flat under a lease governed by the law of 6 July 1989 on residential tenancies. On 5 August 2010, the town granted a fifty-five-year long lease (bail emphytéotique) to a property management company, which later became a social landlord and which, on 6 December 2010, signed an agreement with the State within the meaning of article L. 351-2, 3°, of the Construction and Housing Code.
As the tenant had not answered the annual income survey since 2017, the landlord served on him, on 19 July 2018, a formal demand for payment of the rent increased by the solidarity rent surcharge. The Paris Court of Appeal, on 25 May 2023, terminated the lease as of 19 September 2018, ordered the eviction and ordered the tenant to pay €32,345.48 for rent, charges, solidarity rent surcharges and occupation indemnities up to 31 March 2020, then a monthly occupation indemnity “equal to the amount of the revised rent, increased by the charges and the solidarity rent surcharges, that would have been due had the lease continued” (translated from the French).
The tenant, born in 1950, argued that he had no income in 2018 and €2,335 in 2019, and that the surcharge, added to the rent, cannot exceed 30 % of the household’s income (article L. 441-4 of the same code).
The decision
The Cour de cassation dismissed the grounds directed against the termination and the application of the surcharge, but quashed the monetary order (Cass. 3e civ., 16 October 2025, appeal no. 24-11.047, reported decision).
On termination, the loss of the right to remain in the premises for failing to answer two consecutive surveys is a mechanism distinct from the claim for termination for non-payment, which remains open to the landlord. On the surcharge, the provisions of the law of 23 November 2018, which give sitting tenants a choice between the old lease and a new lease in line with the agreement, “are not interpretative in nature so as to justify retroactive application” (translated from the French); the effects of the 2010 agreement had been acquired before they came into force.
On the amount, the quashing rests on article 455 of the Code of Civil Procedure: by ordering the tenant to pay “without answering the submissions of Mr [H], who argued that he could not be held liable for the solidarity rent surcharge in view of his modest income and produced his tax notices for 2018 and 2019”, the Court of Appeal failed to give reasons for its decision. The case was sent back on that point alone.
A reminder: the occupation indemnity compensates a loss until the occupier actually leaves
An earlier ruling, on an agricultural lease including a dwelling house, clarifies the basis and the duration. After notice to quit and a judgment ordering eviction, the landlords claimed an occupation indemnity. The Rennes Court of Appeal had limited it to €44,129, on the basis of an expert report fixing one annual value for the buildings and another for the land, calculated up to 4 May 2021. The Cour de cassation quashed: the occupation indemnity owed by a person who remains in the premises without a right to do so compensates a tortious fault within the meaning of article 1240 of the Civil Code, and the Court of Appeal had to specify the date on which the tenants had actually vacated the premises (Cass. 3e civ., 14 December 2023, appeal no. 22-14.419).
What the expert takes from it
Two methods of calculation coexist. After the termination of a residential lease, the court often adopts, as here, an indemnity modelled on the rent that would have been due, charges and surcharges included: a contractual reference, easy to establish. Where the occupation was never based on a lease, or where the original rent no longer reflects the market, the indemnity compensates a loss and is measured by the market rental value, defined by the Charte de l’expertise en évaluation immobilière (the French property valuation charter) as “the amount for which a property could reasonably be let at the time of the valuation” (6th edition, November 2025, Title III, § 1.4). The report states which of the two bases is claimed and why.
Rental value is supported by comparables and applied to a precise period. The calculation is the product of an annual rental value and a period of occupation, as the expert report cited in the 2023 case shows. The end date is that of the actual vacating of the premises, recorded in a repossession report or a handover of keys, and the report must fix it explicitly, otherwise the order lacks a basis. The expert also documents the condition of the dwelling during the period, since a dilapidated dwelling does not let at the same price.
Statutory ceilings bind the calculation. In State-subsidised housing, the combined rent and solidarity surcharge is capped at a fraction of income; the 2025 ruling reminds us that the judge must answer that argument when it is raised with tax notices in support. A valuation report does not replace these rules: it supplies the rental value, the judge applies the ceilings. Presenting the two separately avoids a correct figure being set aside for want of reasons.
Further reading
The Property loss of value page describes how an occupation indemnity is quantified, the timescale and the fee. On the same theme: Divorce in France: home valued at partition, even if run down and Occupation indemnity after a French commercial lease: two rulings. The rulings are available on Légifrance: 16 October 2025 and 14 December 2023.
What next
An occupier is staying in your property without a right to be there?
I quantify the occupation indemnity from the market rental value of the dwelling, over the exact period of occupation, with the documents that support it. The report can be used by the claimant as well as the defendant.
Free quote, by email or by phone. No commitment before the quote is accepted. Fees are never linked to the value of the property (Charte de l’expertise, Title I, §2.1).
