Key Benefits:
Mr. President,
Act No. 2005-32 of 18 January 2005 on social cohesion programming, in its section 122, authorized the Government to take, by order, the necessary measures to combat the various forms of housing that can be termed "indigns", because contrary to human dignity, whose treatment falls under the powers of administrative police exercised by the mayors and prefects, and that are insalubre dwellings,
The measures proposed in this order meet the objectives set at 1°, 2°, 3°, 4°, 6°, 7° and 8° of Article 122. The 5th of this article, relating to the creation of a special property sequester system, will be the subject of a second order, the time limit set to the Government being four additional months.
The objectives of this first order are thus recalled:
1° Simplify and harmonize the various administrative police regimes;
2° Facilitate the realization of the work as well as the accommodation and relocation of the occupants and specify in this regard the respective responsibilities of the State authorities and local authorities or their groupings;
3° Better preserve the rights of occupants and owners of good faith;
4° Complete the criminal sanctions regime provided for in Article L. 1336-4 of the Public Health Code and Articles L. 511-6 and L. 521-4 of the Construction and Housing Code and harmonize them with the provisions of the current Penal Code;
6° Facilitating the emergency treatment of unhealthy situations;
7° Allow the mayor of the municipality concerned to apply the emergency measures taken by the prefect pursuant to Article L. 1311-4 of the Public Health Code, and the recovery of the amounts thus incurred;
8° To amend Act No. 70-612 of 10 July 1970 to facilitate the removal of unhealthy housing, in particular to accelerate the expropriation of immovable immovables.
The territorial scope of this order is identical to that of Act No. 2005-32 of 18 January 2005 on social cohesion programming and includes the metropolis, overseas departments and regions.
The order is made up of four principal titles, respectively relating to unhealthy buildings, buildings threatening ruins, rehousing of the occupants and expropriation of the unsanitary buildings, and a fifth, including various provisions.
This title deals with habitat hygiene, unhealthy premises, facilities, buildings or islets and amends sections of the Public Health Code.
Article 1
This complete article in terms of habitat section L. 1311-4, which concerns the imminent punctual danger due to non-compliance with hygiene rules. It provides for the ex officio realization of the measures prescribed by the mayor and the recovery of the debt.
If the person responsible for the obligation to comply with the hygiene measures cannot be identified, the measures carried out ex officio shall be the responsibility of the State.
Article 2
This article is related to administrative measures to put an end to the unwelcomeness of premises, unfit for housing or buildings, groups of immovable buildings, totally or partially. On the one hand, it clarifies the organization of the articles of the Public Health Code relating to the unwelcomeness of the premises or buildings while amending the numbering and, on the other hand, specifies the provisions applicable to facilitate the work out of unsafety and intervene in the event of an emergency. It harmonizes the provisions applicable in all procedures (the right of the occupants, carrying out ex officio work, recovery of claims, etc.).
The logic of this reorganization is to treat in the first articles, rewritten, the situations "points", unfit for housing, uninhabitable by nature, unadapted premises, or made available under conditions clearly leading to their overoccupation, which justify rapid and simple procedures. The two procedures for declaration of insalubrity are then developed which correspond to different realities and whose procedure is more formalized: perimeter delimited by decree of the prefect, procedure of insalubrity on a building or group of buildings, with the introduction, in the latter, of emergency measures.
I is a coordination measure that announces the new organization of the articles, moving the article L. 1331-25 which becomes article L. 1331-17 and repeals article L. 1331-32.
II is related to uninhabitable premises by nature. It inserts a new article L. 1331-22, which reproduces and supplements the former article L. 1337-3, then included in the penal provisions, without altering the device. It extends the current list of premises that cannot be made available for residential purposes to all unfit premises by nature to the dwelling.
The prefect maintains the person who has made these premises available for the purpose of housing to terminate the premises within the time it sets.
The various legal consequences related to the rights of the occupants are specified (harmonization with existing provisions).
Criminal incrimination is deferred in the new criminal provisions, which are the subject of Article 3.
The III is related to premises whose conditions of use or overoccupancy are not compatible with safety and which may give rise to injunction or stay by the prefect, after the advice of the competent departmental commission in the field of environment, health or technological risks.
The two articles, L. 1331-23 and L. 1331-24, are updated rewritings of L. 1331-24.
The new scope of application of L. 1331-23 covers premises made available under conditions that clearly result in overcrowding. This provision applies to "sleeping merchants" who rent over-occupied premises and knowingly. It does not apply to dwellings whose overoccupation is the cause of the occupants, whose owner cannot be held responsible.
Article L. 1331-24 new deals with premises that may be hazardous to occupants because of the use made of it. These premises are not in themselves unfit for housing, contrary to those covered by Article L. 1331-22. Also, injunctions by the prefect can help to end the hazards identified, including by remediation of the premises.
These articles include measures in other articles of the Public Health Code, in particular relating to the recovery of public claims and the rights of the occupants.
The IV further codifies the former article L. 1331-23 on unhealthy perimeters. The regime of this declaration of insalubrity, whose field is not modified, is aligned with that of the declaration governed by the following article L. 1331-26, for the purpose of harmonization.
The V is related to Article L. 1331-26, which sets out the principles of the initiative and the commitment of the procedure for the declaration of the unwelcomeness of buildings and groups of buildings.
It is inserted in this article, whose writing is unchanged, the definition of irremediable insanity.
The legal qualification of remediable or irremediable is often difficult and a source of contentious, sometimes contentious interpretation. In order to ensure a better legal security of the acts, this article clearly defines irremédiability, which is a legal and non-technical concept, taking as references the technical impossibility of carrying out the work necessary to resorb the insalubrity of the building concerned, or their cost, when it is more expensive than that of the reconstruction of the building. No reference to considerations of value or rental income is included in this definition. This provision implies that the irremediable character of the building is appreciated for the entire building. It is indeed necessary to avoid that different parts of the same building can be declared, one unhealthy remediable and the others, irremediable unhealthy.
In terms of public policy, this leads to the promotion of rehabilitation work, to specify the obligations of owners who sometimes let their property deteriorate while benefiting from an important rental profit. This also leads to the maintenance of the occupants' places, or their return, and to avoid systematic, always difficult rehousing, when not justified. Finally, this clarification makes it possible to better circumscribe the field of derogatory expropriation of common law, pursuant to Act No. 70-612 of 10 July 1970, to facilitate the removal of insalubre habitat, which is the subject of title IV below.
In accordance with the 6th of section 122 of the Social Cohesion Programming Act, the VI establishes, in the new article L. 1331-26-1, a device intended to facilitate the emergency treatment of situations of unsafety.
This mechanism is not a new procedure, but is part of the procedure that is pursued under articles L. 1331-26 et seq. The latter has a partially contradictory character, protecting the rights of the owner, imposes precise deadlines, and may be relatively long to implement before reaching the order of insalubrity, which does not allow urgent action, to intervene to guarantee minimum hygiene and security conditions to the occupants, or their occupancy rights. For these reasons, an emergency response mechanism is planned, similar to what may be the imminent threat to ruinous buildings, prior to the review of the situation by the competent departmental commission in the field of environment, health or technological risks.
This article authorizes the prefect, seized by the reasoned report of the departmental director of health and social affairs or the director of the municipal health and hygiene service, to put in place an owner to carry out the necessary measures to ensure the minimum conditions of hygiene or safety of the habitat within a time limit that he or she determines, without prejudging the continuation of the procedure for declaration of insalubrity of articles L. 1331-26 et seq.
If the emergency work has not been carried out or if additional measures are necessary to resolve the unsafety, the order will be taken by the prefect after the advice of the competent departmental commission in the field of environment, health or technological risks; if the work carried out by the owner, especially those that he would have done in addition to the prescribed emergency measures, has put an end to any unhealthy work, the prefect will take note of it and the procedure will not be continued.
The VII rewrites Article L. 1331-28 on declarations of remediable and irremediable unhealthyness and specifies their main effects.
The I of this article concerns the declaration of irremediable insanity. The maximum effective period of the final ban to live from six months to one year. This new period must allow for real housing, taking into account local and social difficulties, since the six-month period has often proved too short, which has led to the maintenance of occupants without right or title in premises permanently prohibited from housing.
A new paragraph states that the prefect may prescribe the necessary measures to prevent the use of premises declared irremediable insalubres. It also provides, and is an important innovation, that the mayor, on behalf of the State, may, if necessary, decide them, whether they have been previously prescribed or not; in any case, executing of office is planned. This measure allows the mayors to urgently take the necessary measures, including to prevent the squat, including on vacant buildings that have been declared unhealthy for a long time.
Section II of the Act provides for coordination with the provisions of the Public Health Code relating to the fight against the presence of lead from Act No. 2004-806 of 9 August 2004 on public health policy: the necessary measures to remedy unsafety include, as appropriate, the work necessary to remove lead accessibility. This provision exempts two separate procedures, one for unsafety, the other for lead, and allows for the initiation of possible ex officio work, including lead palliative work, while ensuring full treatment of the building.
The same II specifies the contents of the appropriate measures to end unhealthyness. No text defines the nature of the work that can be imposed on the owner when the unhealthyness is described as remediable: this concerns, in particular, the nature of the sanitary equipment or, more broadly, elements allowing the use of housing, which can be provided by the order of unwelcome. In addition to being safe after work, housing should also include elements that conform to the use of housing, such as sanitary, bathroom, heating and cooking corner, so as to ensure the conditions of hygiene and housing security, equipment defined by reference to those provided for in Decree No. 2002-120 of 30 January 2002 relating to the characteristics of decent housing taken for the purposes of Article 187 of Act No. 2000-1208 It is thus a question of avoiding the situation where a housing could be "legally" safe without having the equipment under decency. As a result, such a situation was to leave a lessor to relocate non-decent housing, while the law also imposes a decent housing rent. This also led the tenant who reintegrated his home after work to have to file with the trial judge for the installation of missing basic equipment, which introduced a procedural complication difficult to understand and specifically analyzed himself as an infringement of the tenant's right to enjoy decent housing, a right recognized as constitutional value by the Constitutional Council.
Therefore, for reasons of legal, political and social legibility, it is specified that the measures prescribed to resorb the remediable insalubrity of housing may include, as appropriate, equipment corresponding to the decency of housing, without transferring to the administrative authority and administrative judge the control of the entire decency, which falls under the jurisdiction of the judicial judge, competent to hear legal reports.
The III of the same article supplements the contents of the decrees of unwelcome, in the event of a definitive or provisional ban on dwelling. The provision provides to include in the order the period in which the owner must have made known to the prefect the precise offer of relocation or accommodation that he made to the occupant; Without this, the public authorities are in the practical inability to ensure the relocation of the occupants before the expiry of the period of prohibition to live, except to risk litigation with the owner or to leave the occupants without right or title.
The VIII refers to Article L. 1331-28-1, relating to advertising formalities, to the particular regime of land advertising in the departments of Moselle, Upper Rhine and Lower Rhine.
The IX is related to articles L. 1331-28-2 to L. 1331-31, which are partially rewritten.
Article L. 1331-28-2 new relates to the rights of the occupants.
In I it refers to the provisions of articles L. 521-1 et seq. of the Construction and Housing Code in respect of the right to rehousing and lease law (former article L. 1331-31).
II extends to new emergency measures (Article L. 1331-26-1) the rules set out in Article L. 521-2 of the Construction and Housing Code in respect of residential leases. It further states that vacant premises may not be rented or made available for any use in an immovable declared unsanitary, without a prohibition of residence.
The purpose of the III is to explicitly condition the possibility for the prefect, in the event of a failure of the owner, to request the expulsion of the occupants of a building under a prohibition order to live, whose time limit for the departure of the occupants has expired, the effective existence of an offer of accommodation or relocation.
The new article L. 1331-28-3 is related to the lifting of the unsafety orders when the prescribed work has been carried out or the work done has put an end to any unhealthy work, when it was deemed irremediable: in fact, nothing is opposed to an owner performing such work. This article incorporates existing provisions with slight editorial changes.
Insalubrity release is notified, displayed and transmitted under the conditions set out in section L. 1331-28-1.
The new article L. 1331-29 is related to the completion of the works of office, when the owner is failing.
The I of this article allows the administrative authority, i.e. the prefect or mayor acting on behalf of the State, to carry out urgent work for the health and safety of the occupants in homes declared irremediable and still occupied, before relocation.
In the event of a demolition prescribed by the order and not executed, the order may only be carried out by the administrative authority on its own motion after an order of the judicial judge in the form of the references. The demolition regime is thus clarified.
When the unhealthyness is remedial, the II of this article recalls that if, after a stay whose deadline is reduced to one month, the owner did not perform the work, they will be carried out by the administrative authority, that is, by the prefect or the mayor acting on behalf of the State. The mention that, in the event of a difficulty, the referees' judge had to be seized prior to the appointment of office work was deleted as superfluous, with respect to a general procedural provision provided for in the Civil Procedure Code.
The III opens the possibility for the State to replace itself only to the faulty co-owners when the work prescribed in the order concerns the common parts of a condominium. The purpose of this new provision is to facilitate unhealthy work in these buildings, often blocked by a few condominiums. This proposal allows to limit the amount of work carried out ex officio - and thus advanced public funds - and to intervene in a private decision-making process - that of co-ownership - which allows to accelerate the work, to empower the union of co-owners and not to penalize co-owners in good faith. In this case, the State is subrogated in the rights and actions of the union to the sums paid by it and will benefit, in particular, from the special real estate privilege enjoyed by the union against the poor co-owner, as a guarantee of the debt.
Article L. 1331-30 is new in relation to the legal regime of office work and claims.
The I recalls that the work carried out by the administrative authority in place of the failed owner is carried out on behalf of the latter and at its own expense.
It also extends the provisions of Article L. 1334-4, which are intended for the prevention of lead-related risks, to work out of unhealthy conditions under which the financial regime of work carried out ex officio in squatted premises is specified. These provisions allow the owners who receive a decision of expulsion, not executed, against occupants who have entered by fact, to request the administrative court that all or part of the work carried out on an ex officio basis be placed at the expense of the State. In order to avoid undue enrichment, this exemption will be deducted from the compensation to which the owner may claim for the financial damage arising from the decision refusing to lend the assistance of the public force.
Existing provisions relating to debts of public authorities are included in these provisions.
The new article L. 1331-31, in its 1st, reproduces the provision of article L. 1331-32, repealed, and provides, in its 2nd, the conditions of application by decree in the Council of State, as necessary for the application of the new texts of the order.
Article 3
This article is related to criminal sanctions on unsafety that are reorganized, completed and clarified.
Sections 1337-2 and 1337-3 are repealed by I.
II rewrites article 1337-4, which defines criminal incriminations in respect of unsafety; applicable criminal sanctions are harmonized with the current provisions of the Penal Code; They are of interest to both natural and legal persons.
Additional penalties are specified.
Coordination is ensured with the provisions provided for in Article L. 651-10 of the Construction and Housing Code, where the prosecution involves trade fund operators.
The system specific to the procedure for threatening buildings codified in articles L. 511-1 et seq. of the Construction and Housing Code dated 1898 and has not been changed since then. Act No. 2000-1208 on Urban Solidarity and Renewal of 13 December 2000 amended land notification and advertising and introduced a regime for the protection of occupants identical to that of occupants of unsanitary habitats, but did not reform the system itself.
However, the procedure has become largely obsolete, in that the order of peril is the only act of a mayor who is not enforceable in full law, since, in the event of the owner's silence, the order must be approved by the administrative court. This approval is essential for the mayor to be allowed to carry out the work on his own and for a temporary or final ban to be taken. The complexity and length of the current procedure of the ordinary peril is inadequate to the reality of the danger and has led the mayors to resort, for operational efficiency reasons, to the device of the imminent peril, including in excess of power - which generates contentious difficulties - or to their general police power, which may be insufficient in this regard. Finally, too often the imminent danger orders are not followed by a "ordinary" hazard order, leaving buildings and occupants in a provisional state incompatible with sound building management or decent habitat conditions. The occupants are forced to remain in places that are difficult to live and see their rights inadequately protected.
Certainly, the mayor, in the event of an emergency, may take an impending, expeditious and effective order of peril, but which only authorizes temporary work of a comfortative type and returns to remove the peril from the normal contradictory procedure.
Finally the current legislative writing is not easy reading and refers for a correct application to a good knowledge of jurisprudence.
In addition, it is unclear why, except historical reasons, there is a dual jurisdiction in the matter (judgment at imminent risk and administrative judge at unimposed risk).
It is therefore proposed that the procedure of the "ordinary" peril be streamlined very significantly, by referring the conflicting phase before the signing of the peril order, by removing the approval by the administrative tribunal and by reintegrating the possible prohibitions of living in the order, so as to allow the relocation of the occupants and clarify their right to the lease.
The mayor is empowered to carry out the work on his or her own behalf, in the event of a failure of the owners and their costs, after the detention and without the authorization of any judge, except in the case of difficulties according to the procedure of the Civil Procedure Code (cases of refusal of the occupants or the owners to allow entry into the premises, for example), namely the referral of the judicial judge to allow the mayor to perform the work on his or her own behalf. The order of risk may be appealed for excess of power before the administrative judge and, where appropriate, a procedure for referring the matter under the conditions of common law (e.g., the suspension procedure that proved its effectiveness).
In the event of demolition, the authorization of the judicial judge in the form of the referees, traditional custodian of private property, remains required (as in unhealthy).
Article 4
I is related to Article L. 511-1, which defines the hazard, and specifies the measures to be taken, particularly in the event of imminent danger. It clarifies the respective fields of the two Orders of Peril, as well as their necessary relations: an imminent Order of Peril should normally be followed by an ordinary Order of Peril.
The II provides editorial clarifications and harmonizations to Article L. 511-1-1 and specifies all publicity measures common to imminent and non-immediate hazard orders.
Article 5
This article relates to the two procedures of the peril, rewritten in articles L. 511-2 and L. 511-3.
Article L. 511-2 new specifies the new procedure of the non-immediate peril, i.e. the "ordinary" peril.
I is related to the procedure for the committal of the Order of Peril.
It is anticipated that a contradictory procedure, the terms of which will be defined by decree in the Council of State, will precede the decree of peril.
The hazard order should specify, as the case may be, whether the work is either repair or demolition, the current text left the choice to the owner, which is no longer compatible with the fact that the legal effects are different in both cases, especially in relation to the rights of the occupants.
The necessary measures to preserve the adjacent buildings may be included in the Order.
The order will include, in the event of danger, the prohibitions to live or use the premises, as well as the date on which the owner must have notified the mayor of the offer of accommodation or rehousing made to the occupants so as to allow the municipality to ensure, in the event of a failure of the owner, their accommodation or rehousing within the time limits provided by the order.
II incorporates an existing provision that provides for the conditions under which the owner may free himself from his or her obligation to perform the prescribed work.
The III incorporates the existing provisions relating to the lifting of the Order of Peril and its advertisement, which is identical to that of the Order itself.
The IV is related to ex officio work.
The regime of ex officio work is simplified, since the mayor will be able to carry out the prescribed work, without prior recourse to a judge. In case of difficulty in carrying out this work, the mayor may, under the conditions of the common law of civil proceedings, address the judicial judge who shall rule in reference. The authorization of the judicial judge in the form of the referees remains required prior to the demolition of office.
Finally, as with the State in the event of unwelcome, the possibility for the commune to replace only the co-owners who fail when the work prescribed in the order is on the common parts of a condominium is planned. Similarly, where work will be carried out on an ex officio basis in squatted premises, the final financial charge will be deferred to the State, with the provisions of Article L. 1334-4 of the Public Health Code being made applicable.
The new article L. 511-3 is relative, like the old, to the imminent danger, of which it resumes the general provisions.
However, an important amendment is made: the appointment of the expert to report on the state of danger will no longer be made by the judge of the proceeding but by the administrative judge, deciding on the reference. Indeed, only historical reasons explain this role of the trial judge, who does not intervene at any other time in the proceedings. In order to ensure consistency, it appears justified to operate a unification of the relevant jurisdictional order, since the administrative judge has to know the contentiousness of the decrees of peril.
The expert will be able to identify the state of the adjoining buildings in order to prevent possible subsequent disorders. The report will be able to propose technical measures to end the imminence of the peril, so as to guide the mayors in the exercise and limits of their police power.
The mayor decides the necessary interim measures and can carry out them on his own.
This article explains the fact that an imminent order of peril, unless the work carried out by the owner has put an end to any peril, which leads to an order of release of the peril, must be followed by an ordinary order of peril, allowing, alone, to end the peril.
Article 6
Article L. 511-5 is intended to recall the rights to accommodation or rehousing of the occupants, to clarify and unify the regime of the rights of the occupants for all the decrees of peril, whether ordinary or imminent, with the current wording being imprecise on this important point.
It is also specified that vacant premises under an order of danger, ordinary or imminent, cannot be rented.
Article 7
This article is related to the criminal penalties set out in Article L. 511-6. In addition to harmonizing the provisions of the Penal Code, it further redefines the offences of ruinous buildings and the sanctions applicable to natural and legal persons. The device is similar to the one planned for insalubre habitat.
The right of occupants of unhealthy dwellings, threatening ruin or in hazardous accommodation establishments, is contained in the code of construction and housing, in book V relating to buildings threatening ruin or unhealthy, in articles L. 521-1, L. 521-2 and L. 521-3; Penal sanctions are provided for in Article L. 521-4.
In experience and as a result of some ambiguities in the texts, in some litigations, there was a need to clarify a number of issues relating to the rights of the occupants.
Similarly, the sharing of responsibilities between the mayors and prefects in terms of temporary accommodation and permanent rehousing of the occupants, in the event of a failure of the owners, was not clear and the current drafting of the texts raised many difficulties.
Finally, on certain specific points, the right of good faith occupants is strengthened.
Article 8
This article rewrites articles L. 521-1 to L. 521-4 of the Construction and Housing Code and includes editorial improvements that do not alter the scope of the provisions currently applicable; However, articles L. 521-3-1 and L. 521-3-2 contain new provisions.
The new section L. 521-1 is related to general principles applicable to accommodation or rehousing obligations on owners or operators of accommodation facilities in different situations affected by police measures (unsafety, danger, danger in accommodation facilities).
It is an article of precision that announces the measures set out in the following articles.
Article L. 521-2 reiterates and specifies the provisions relating to the occupancy rights of occupants in all situations covered by a police measure.
I is related to the rent and occupancy royalties regime in premises subject to a police measure.
The principle of suspension from the first day of the month following the publicity of the police orders is recalled. It is clearly extended to accommodation facilities, which includes furnished hotels. In this case, rents and occupancy fees are suspended following the limitation of security measures, on the advice of security commissions, and until such measures are implemented.
When the premises are unfit for the dwelling by nature, the occupancy allowances cease to be due upon notification of the prefect's stay.
In the premises that have been the subject of the new emergency measures instituted in the area of unsafety, the rent will be suspended retroactively at the start of the stay, if a decree of unwelcome is taken subsequently following the proceedings.
The provision that any rent or amount paid in return for the occupation of unduly collected housing by the owner must be returned or deducted from the subsequent rents shall, in particular, apply this situation.
II is related to the occupancy lease regime which is specified: the suspension of the lease will apply following the notification of the police measure - and not only if a temporary prohibition of residence is imposed - and until the completion of the prescribed work or the limit of the final prohibition of residence. This provision applies to unhealthy orders, emergency unwelcome, danger orders and security requirements in accommodation facilities.
III is relative to the length of the lease. In addition to the resumption of existing provisions, two new provisions are made that reinforce the protection of the occupants in two cases that have led to the resiliation of leases and unfair evictions, at the request of donors or operators of furnished, unscrupulous hotels, having made an argument for a relative inaccuracy of the texts.
The first case relates to the situation of the occupants who have no offer of rehousing and who have remained in housing that is prohibited to the dwelling: they are qualified as occupants in good faith and cannot be expelled as a result. Indeed, the ban on living places could have been considered to be of public order and to justify the release of the premises, regardless of the right to rehousing itself of public order.
The second case deals with the legal situation arising out of police measures: it is specified that the police measures - decrees of danger, unwelcome, or security requirements - cannot result in the termination of the full right of a lease or other occupation contract. This provision is intended to put an end to an old case law whereby a decree of peril, for example, constitutes a fortuitous case within the meaning of article 1722 of the Civil Code, resulting in the termination of the lease's right.
The former article L. 521-3 is split into two new articles, L. 521-3-1 and L. 521-3-2, for clarification and readability.
The new section L. 521-3-1 is related to the obligations of the owners and operators of accommodation facilities.
I recalls the obligations of owners or operators when a temporary prohibition of residence is imposed. It is anticipated that when an unhealthy remediable housing is clearly overcrowded the owner is only required to an obligation of accommodation, the actual relocation required must then be provided by the mayor or prefect in the cases referred to in Article L. 521-3-2 new. If rehousing is done, the owner's contribution will be assessed on the basis of the cost of this current accommodation until the unwelcome order is lifted.
II recalls the obligations of the owners or operators when a final prohibition of residence or a final evacuation is imposed.
The new section L. 521-3-2 relates to the obligations of public persons with respect to accommodation and rehousing, in the event of failure of owners and operators.
It significantly alters the provisions of the previous article L. 521-3, clarifying the respectful role of the prefect and the mayor in the various cases of police exercise.
The basic principle is that the mayor makes the necessary arrangements for the accommodation and relocation of the occupants when he is the competent police authority - either at risk and safe accommodation facilities (furnished hotels). The prefect, or the delegate of the State's reservation rights, is competent in matters of unsafety, except for exceptions.
The I states that the mayor provides accommodation or relocation for occupants of premises under a hazard order or under safety requirements, in the event of a failure of the owner or operator.
The II states that the prefect, or the mayor if he is the delegate of all or part of the State's booking rights, shall provide accommodation or relocation of the occupants of the premises declared unhealthy in the event of failure of the owner or operator.
The III makes an exception to the principle set out in the II of this article: where the treatment of unsafety is part of an overall operation that provides for the development or revalorization of a delimited area, such as a scheduled habitat improvement operation (OPAH) or a joint development area management operation, the public person at the initiative of this operation shall ensure that
The IV provides that in the event of a failure the owner, or operator, is liable for compensation, representing his contribution to the relocation. The current amount of EUR 304.90 to EUR 609.80 per relocated person, in addition to having no incentive or deterrent, presented difficulties in applying (to the extent, exceptional, where the municipalities actually recovered this contribution). The representative compensation for rehousing expenses will be assessed within the limit of one year of the anticipated rent. In addition, this allowance will be paid to the public person in which the organization (HLM, SEM or association) has effectively provided this relocation.
The purpose of these provisions is to be at the same time closer to the economic reality of the charge of a rehousing - which allows the owner to have an unoccupied building easier to sell or rehabilitate, through public action - and to encourage the rehousing of these populations, often deprived, by the donor agencies. They also benefit from an enforceable debt and a legal mortgage.
The V provides for the case where the commune has been able to accommodate or relocate occupants of declared unhealthy premises, either on occasion or in the framework of a convention with the State; it recovers the debt owed by the deficient owner by subrogation in the rights of the State.
VI takes up an existing provision on debt recovery.
The VII provides that, in the event of a refusal by the occupant of three rehousing offers made by the competent public person, the competent judge in this matter may have an application for the termination of the lease and expulsion. The purpose of this provision is to avoid abusive rehousing refusals sometimes opposed by some occupants.
Article L. 521-4 new relates to criminal sanctions.
In addition to harmonizing the current provisions of the Penal Code, it further redefines criminal incriminations in respect of non-compliance with the rights of the occupants and the penalties applicable to natural and legal persons. Additional penalties are specified; coordination is ensured with the provisions provided for in Article L. 651-10 of the Construction and Housing Code, where the proceedings relate to operators of furnished hotel trade funds.
Article 9
The purpose of this section is to allow for the temporary accommodation of occupants of unhealthy premises or in a state of danger by organizations subject to HLM regulations, for the period necessary, without the right of occupants to maintain their premises.
I and II relating to articles L. 353-15 and L. 442-6 of the Construction and Housing Code that are intended for the organizations of the CMHLM, which are granted personalized housing assistance (LPA) or not, are amended accordingly to allow this temporary housing.
The expropriation of insalubre buildings is provided under derogatory terms to the expropriation code because of public utility under amended Act No. 70-612 of 10 July 1970 to facilitate the removal of insalubre habitat.
Article 10
This section sets out this law by proceeding, on the one hand, with formal harmonizations with the current provisions of the code of expropriation because of public utility and, on the other hand, by providing for provisions to speed up the procedure, pursuant to Article 122 of the Programming Law for Social Cohesion. Indeed, the provisions of this Act were not updated under Act No. 2000-1208 of 13 December 2000 on urban solidarity and renewal, and some of them are impediments to the final treatment of unhealthy habitat.
I rewrites section 13 of the law, which specifies the field of derogatory expropriation of common law. It is limited, as a principal, to buildings declared unhealthy in an irremediable manner. On an exceptional basis, may be expropriated, in the same forms, the buildings whose expropriation is indispensable for the demolition of unsalubate buildings, a resumed provision of the current section 20 of the law. It is specified the possibility of expropriating, according to the same terms, the lands supporting both unsanitary premises in an irremediable manner and safe premises when their acquisition is necessary for the resorption of the observed unwelcome. On the other hand, the expropriation, according to this derogatory procedure, of "contiguous lands or neighbours where their use is indispensable to the realization of the operations for which the declaration of public utility is pronounced" currently provided for in Article 13.
The new wording of this section 13 entails the repeal of the current section 20 of the Act.
Finally, the new wording repealed the last paragraph of Article 13 in its 1970 version, which provided that the expropriation was intended to be "the construction of housing, or any object of collective interest under an urban planning operation...". This removal is clearly the only removal of irremediable unhealthy premises the object of expropriation carried out under this law.
II, relating to Article 14, is editorial.
The III repeals section 16 of the law. The latter stated that the owners could commit themselves to the expropriating to the removal of the unhealthy buildings referred to in the public utility declaration order and the relocation of the occupants. The acceptance of this commitment by the prefect suspended the enforceability of the public utility declaration order for one year, which could be extended for one year. This provision is a brake on the conduct of expropriation in that it creates delays that make the resorption operations of unhealthy habitat, already complex to mount. However, this provision is no longer justified today insofar as the combined provisions of the Public Health Code and the Construction and Housing Code impose on the owner the relocation of the occupants, the work rendering uninhabitable buildings declared irremediable, and, where applicable, the demolition. Finally, nothing opposes that a landlord carries out heavy work to rehabilitate an unhealthy building, which then excludes it from the very field of public utility declaration.
IV, relating to Article 17, is editorial.
The V deals with deletions and clarifications in section 18, relating to the terms and conditions for the determination of the expropriation allowances of unsanitary and unfit property.
The first paragraph, new, first specifies that the procedure provided for in the expropriation code for public utility is applicable to the fixing of the expropriation allowances referred to in this section.
The second paragraph, at the same time, provides for the method of valuation of unhealthy and unfit property to the dwelling according to the so-called "recovery of land" (value of bare land, demolition fee deducted).
The third paragraph specifies the method of valuation of the property occupied by the owner: the current text states that the method of valuation according to the "early recovery" was not applicable to the owners occupying the premises before June 10, 1970. Since this date is now strongly penalizing, the date for this consideration is set at two years before the notification of the irremediable unhealthy order.
This paragraph also reiterates the provision that the assessment of expropriated but non-insalubre property is carried out in accordance with the terms of common law.
The fourth paragraph provides that compensation payable by the owner who has not provided for the relocation of the occupants, pursuant to section L. 521-3 of the Construction and Housing Code, is deducted from the amount of the expropriation allowance.
The fifth preambular paragraph, without amendment, reiterates the current provision that no compensation may be awarded in compensation for the removal of a trade relating to the use of premises that are unfit for that purpose, i.e., in particular, of the commercial funds of furnished hotels, where they are declared unhealthy and prohibited to housing.
The new wording of section 18 repeals the third and fourth paragraphs relating to the refaction of the amount of the expropriation allowance of the rents encumbered since the final prohibition of dwelling or rents collected in the premises unfit by nature to the dwelling, provisions which have become unobjected since, on the one hand, the provisions of article L. 521-2 of the code
The last paragraph of section 18 of the Act respecting the calculation of compensation in respect of the premises referred to in former section L. 43-1, which became L. 1331-23 and L. 1331-24 of the Public Health Code, is repealed as not entering, either, the scope of the expropriation referred to in the law.
VI is in relation to section 19 of the Act which provides that, following the refusal of relocation, the occupants may be expelled. The amendments to this article relate, on the one hand, to the suppression of expulsion by prefectural order and return to common law and, on the other, to the reference to the conditions of relocation to be taken into account; on the latter point, the reference to the conditions of rehousing in development operations seems to be the most relevant (code of urban planning).
The VII repeals Article 20 that has become irrelevant.
Article 11 is related to the prohibitions of land division, provided for in Article L. 111-6-1 of the Construction and Housing Code.
The first paragraph of this article provides that any division by flats of buildings declared unhealthy, struck by a prohibition of residence or a decree of peril. This provision, justified, also prevents any operation aimed at the restoration of the building by several owners or investors, and requires division into shares, especially for fiscal reasons, which constitutes a barrier to the work. Therefore, it is proposed to authorize these operations when they are prescribed under public utility declaration, pursuant to section L. 313-4 of the urban planning code, as made so mandatory, these operations are controlled by the public authority.
Section 12 is related to accommodation facilities receiving the public and subject to the security regulations, which are provided for in section L. 123-3 of the Construction and Housing Code. This article is supplemented by the necessary coordination measures, including work and recovery of claims and occupant law.
Section 13 is related to the procedures for criminal prosecution of accommodation facilities operated in commercial form, as provided for in Article L. 651-10 of the Construction and Housing Code. This article covers cases of prosecution based on section 225-14 of the Criminal Code relating to conditions of accommodation contrary to human dignity. It is proposed to also address cases where prosecutions are initiated on the basis of the Public Health Code and the Construction and Housing Code, by harmonization.
Section 14 is an article relating to the entry into force of section 5 of the order relating to the new procedure of danger. These provisions that require the publication of an implementing decree will come into force on a date fixed by decree and no later than October 1, 2006.
Section 15 is the enforcement article.
This is the subject of this order that we have the honour to submit to your approval.
Please accept, Mr. President, the assurance of our deep respect.
