Payability of the Domestic Waste Removal Tax?

If it is now accepted that the lessor can only invoice its lessee for the charges and taxes expressly provided for in the lease, what about the Domestic Waste Removal Tax when the lease refers to the law of September 1, 1948? 

It is now well established case law that the lessor can only invoice its lessee for the charges and taxes expressly provided for in the lease. 

These clauses for the transfer of charges or taxes must be sufficiently precise to be charged to the lessee, failing which they must be borne by the lessor, as recalled in the most recent case law. 

As an illustration, it has been held that a general clause placing all maintenance costs on the Lessee without detail or precision as to their nature, cannot be considered as constituting an express clause of the lease placing the identified costs on the Lessee. 

The High Court reiterated this principle in a judgment dated 30 May 2024:

 “To reject the tenant’s request for restitution of charges, the judgment states that the costs of rodent control, disinfection, wiring, maintenance of the lifts and the road tax have been charged to the tenant for its share of the building’s expenses. 

In so determining, without investigating, as it was invited to do, whether the sums disputed by the tenant had been charged to it by an express stipulation of the lease agreement, the Court of Appeal did not give any legal basis to its decision ”(Cass. 3rd civ., 30 May 2024, No. 22-22.981). 

With regard to the tax on the collection of household waste, it is held that this tax can only be validly charged to the lessee by virtue of a contractual stipulation providing for it within the contract (Cass. 3rd civ., 13 June 2012, No. 11-17114; CA Toulouse, 2nd ch., 19 Nov. 2017, No. 16/04864; Cass. 3rd civ., 19 Nov. 2020, No. 19-17197). 

The question of the chargeability of this tax may arise when the lease refers, for charges and taxes, expressly to the law of September 1, 1948, law relating to the residential lease. 

However, the Paris Court of Justice considered that such a referral did not allow the lessor to be reimbursed the household waste removal tax. 

If the following reasoning is severe, it must be approved taking into account the position of the High Court in the matter

 “In this case, under the terms of the article” Rent ”of each of the leases concluded on December 18, 2012, it is stipulated that” In addition to the rent fixed above, the lessee will reimburse the lessor for the taxes, services and individual supplies, as defined by the law of September 1, 1948 ”. 

Law No. 48-1360 of 1 September 1948 relates to relations between landlords and tenants of residential or professional premises. According to Article 38 of this law, “Tenants or occupants are required, in addition to the main rent, to reimburse the rental charges defined in Article 23 of Law No. 89-462 of 6 July 1989, under the conditions provided for in this article.” 

Article 23 of Law No. 89-462 of 6 July 1989 defines the conditions under which recoverable charges may be required from the lessee. It is specified that the list of recoverable charges is defined by decree in the Council of State. Decree No. 87-713 of 26 August 1987 in its version applicable to the disputed contracts lists the taxes recoverable from the tenant in its annex, including the tax for the removal of household waste. 

If reference to the residential lease regime is possible in a commercial lease, for this regime to be applicable, the lease must expressly refer to it. In the absence of a specific mention of the charges defined in the decree of 26 August 1987, this regime, which does not automatically apply to commercial leases, cannot be considered as applying in this case ”. 

The rent judge further specified that:

 “In addition, SCI Foncière [Address 18] waited until January 2021 to send a reminder invoice for the household waste removal tax for the years 2015 to 2020 while it had acquired the property in 2014 and had never claimed this tax, so that it cannot be detected in practice of the parties an agreement for the charging of the lessee of the household waste removal tax“,

 Even though the Court considers that the payment for several years of taxes by the occupant who is not bound by the agreement, does not characterize the will to nov (Cass. 3rd civ., 24 Sept. 2020, No. 19-21303). 

Tenants are therefore invited to check the charges and taxes they are called upon to pay!Judicial  

Court, Paris, 18th Chamber, 1st Section, 11 February 2025, No. 21/04695