Contractual transfer terms of a contract authorizing occupation of the public domain
In this case, the Council of State considers that a contract by which the owner of a dependency of the public domain entrusts the management of this dependence to a third party is not opposable to the public person to whom this property was rented to perform a public service mission without the latter having consented.
The rule is now clear: a contract by which the owner of a public domain dependence entrusts the management of this dependence to a third party is not opposable to the public person to whom this property was rented to carry out a mission of public service without the latter having consented.
Case of a municipality renting to the State a gendarmerie barracks and having concluded a convention to this effect. A third company can not argue that the emphyteutic lease agreement it has concluded with the municipality has had the effect of making the substitution of the municipality as enforceable against the State. The services of the domain and the gendarmerie refused to sign on behalf of the State the rider transferring from the commune to this company the lease contract of the gendarmerie barracks. If the agreement concluded between the commune and the State for the provision of the gendarmerie did not contain any stipulation imposing the agreement of the State in case of transfer of this agreement, such an agreement was nevertheless necessary for the society to to replace the municipality in the execution of the lease that it had concluded with the State. The company is therefore unfounded, in any event, to claim from the State, on the contractual field, rents.
It is therefore necessary to remain very vigilant considering the financial consequences that may be the lack of information and authorization of the owner of the dependence of the public domain.
Board of state
N ° 375643
8th / 3rd SSR
Mr Mathieu Herondart, rapporteur
Ms Nathalie Escaut, public rapporteur
SCP PIWNICA, MOLINIE, lawyer (s)
Reading of Monday, December 7th, 2015
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
The national real estate company asked the Administrative Court of Orleans to annul the implicit decision by which the State rejected its request of January 13, 2011 for him to be paid the rents due from June 11, 2009 for the occupation of the Gendarmerie barracks at Montbazon, to condemn the State to pay these rents, with interest at the legal rate, and to order the State to pay him directly the rents to come.
By a judgment n ° 1101057 of February 2nd, 2012, the administrative court of Orléans rejected this request.
By a judgment n ° 12NT00898 of December 20, 2013, the administrative court of appeal of Nantes rejected the appeal formed against this judgment by the national real estate company.
By a summary appeal, two supplementary pleadings and a reply, registered on February 20 and May 19, 2014, and on February 3 and May 7, 2015 in the litigation secretariat of the Conseil d'Etat, the national real estate company asks the Conseil d'Etat State:
- to annul that judgment;
- settling the case on the merits, to grant his appeal;
- to charge the State the sum of 5,000 euros under Article L. 761-1 code administrative justice.
Considering the other parts of the file;
- the general code of local authorities;
- Law n ° 2011-267 of March 14, 2011;
- the code of administrative justice.
After hearing in open session:
- the report of Mr. Mathieu Herondart, State Councilor,
- the conclusions of Ms Nathalie Escaut, public rapporteur;
The word having been given, before and after the conclusions, to the SCP Piwnica, Molinié, lawyer of the national real estate company;
1. Considering that it appears from the documents in the file submitted to the judges of the merits that the municipality of Montbazon built, for the national gendarmerie, a housing complex consisting of premises of service and techniques of a territorial brigade and sixteen dwellings intended for the gendarmes; that a contract concluded between the municipality and the State on January 5, 2006 gave this property to rent to the State for a period of nine years, in return for an annual rent of 148 325,10 euros; that the municipality concluded with the national real estate company, on June 11, 2009, an emphyteutic lease of a duration of fifty years, relating to this set of real estate and specifying that the contract concluded by the commune with the State would be transferred for this purpose from the municipality to the national real estate company, mentioning that this transfer would give rise to an amendment to this contract; that the State, which refused to sign the amendment to the contract of January 5, 2006 providing for the substitution of the national real estate company to the municipality as lessor, implicitly rejected the request of the company that the rents owed as of June 11, 2009, be paid directly to the latter; that the national real estate company appeals in cassation against the judgment of December 20, 2013 by which the administrative court of appeal of Nantes rejected his appeal against the judgment of the administrative court of Orleans of February 2, 2012 rejecting his requests tending to the annulment of this decision of refusal, that the State is condemned to pay him the amount of the rents expired since June 11, 2009 and that it is enjoined to the State to pay him directly rers to come ;
2. Considering that pursuant to the provisions of Article L. 1311-2 of the General Code of Local Authorities, previously applicable to the law of 14 March 2011 and issued, before their codification by the law of 21 February 1996, the article 13 of the law of January 5, 1988: "A property belonging to a local authority may be the subject of an emphyteutic lease provided for in Article L. 451-1 of the Rural Code, with a view to the fulfillment on behalf of the local authority, a public service mission or to carry out an operation of general interest falling within its competence (...) ";
3. Considering that it follows from these provisions, in particular from the reference that they contain to the emphyteutic lease provided for in Article L. 451-1 of the Rural Code, that the legislator has thus intended to cover only the contracts in which the lessee is responsible for realizing, on the immovable property that he is thus authorized to occupy, investments that will accrue to the community at the end of the lease, and not to allow the conclusion, under this plan, of contracts by which a local authority entrusts to a third party a mission of day-to-day management of a property belonging to it; that, if it results from the provisions inserted in article L. 1311-2 by article 96 of the law of March 14, 2011 that a emphyteutic lease can from now on be concluded with a view to the restoration, the repair, the the maintenance-servicing or the development of a property belonging to a territorial collectivity, neither this last article nor any other provision of this law results from a retroactive effect;
4. Considering that, to reject the appeal of the national real estate company, the court held that the latter could not claim any real right on the housing complex concerned, on the ground that, on the date of its signature, the agreement concluded between this company and the municipality of Montbazon did not fall within the scope of the provisions of article L. 1311-2 of the general code of local authorities; that it however failed to answer the means, which was not inoperative, drawn from the fact that this convention charged to the company works and important investments, including improvement, exceeding a mere management mission current of this housing complex; that, therefore, without it being necessary to examine the other means of the appeal, the national real estate company is justified in requesting the cancellation of the judgment which it attacks;
5. Considering that it is necessary, in the circumstances of the case, to settle the case on the merits in application of the provisions of Article L. 821-2 code administrative justice;
6. Considering that a contract by which the owner of a dependency of the public domain entrusts the management of this dependence to a third party is not opposable to the public person to whom this good was rented to exercise a mission of service there public without the latter having consented; that the national real estate company can not therefore argue that the emphyteutic lease contract it concluded with the municipality of Montbazon has had the effect of making opposable to the State substituting the municipality as lessor;
7. Considering that it follows from the investigation that, by a decision of 2 July 2009, the services of the domain and the gendarmerie refused to sign on behalf of the State the rider transferring from the commune of Montbazon to the national real estate company the lease of the gendarmerie barracks; that neither the municipality nor the company has appealed against this decision of refusal; that if the agreement concluded between the commune of Montbazon and the State for the provision of the gendarmerie did not contain any stipulation imposing the agreement of the State in case of transfer of this convention, it follows from what comes from be said that such an agreement was nevertheless necessary for the national real estate company to be able to replace the town of Montbazon in the execution of the lease that it had concluded with the State; that the national real estate company is therefore not justified, in any event, to claim from the State, in the contractual field, the rents in dispute; that, consequently, its conclusions tending to the condemnation of the State to pay him the rents due for the execution of this convention can only be rejected;
8. Considering that it follows from the foregoing that the national real estate company is unfounded to maintain that it is wrong that, by the judgment impugned, the Administrative Court of Orléans rejected his request;
9. Considering that the provisions of Article L. 761-1 of the Administrative Justice Code prevent an amount from being charged to the State which is not, in the present case, the losing party ;
Article 1: The judgment of the administrative court of appeal of Nantes of December 20th, 2013 is canceled.
Article 2: The petition filed by the national real estate company before the Nantes Administrative Court of Appeal and the remainder of its appeal are dismissed.
Article 3: This decision will be notified to the National Real Estate Company and the Minister of Finance and Public Accounts.