BODYGUARD

June - 2014

This is a 1992 movie staring Kevin Costner and Whitney Houston. She plays the threatened pop singer and he plays the bodyguard trained to protect presidents who becomes frustrated by the singer’s lack of understanding that her behavior is dangerous; she thinks that she is supposed to live a normal life and that he was hired to deliver just that. Eventually she understands that being safe requires changing her lifestyle and adapting to the new environment.

Several different plot elements illustrate aspects of the foreigner’s struggle to feel safe in a foreign country - the search for a protector, the need for « bodyguard » type of help, and the realization that a complete adaptation to the new environment would get rid of most of the fear. An example of this is the following exchange:

  • – Professional: You are acting as if you fear that every new day brings another catastrophe.
  • – Client: Yes, this has been my experience since I moved to France.
  • – Professional: Do you feel the same way in your home country?
  • – Client: Absolutely not, there I know that I am not in danger.

It is rare that it is expressed in such a candid way, but countless foreigners end up being crippled by this fear that is much bigger than what the issues should generate. In a society where security is getting to be one of the main concerns of people worldwide and particularly in the Western world, losing this sense of safety feels absolutely unacceptable.

Without opening the philosophical debate of what brings inner peace to people so that they feel safe, it is clear that the foreigner must have a much more objective evaluation of the situation and therefore must realize that he is facing nothing more than the same problems that he had in his country. The difference is simply that he knew how to fix them in his own country and, in the new country, he needs to learn new ways of fixing them. Seeking the ultimate bodyguard is a dangerous thing, and the professionals who help foreigners are often confronted by this impossible expectation.

VISITING OSLO AND THE SECURITY IN THE CITY
I would like to share the experience of visiting the capital city of Norway a few weeks ago. I was there about 30 years ago and a lot had changed since then, but the historical downtown, which extends from the Royal Castle to the Central train station and is several centuries old, has remained pretty much the same.

The Scandinavian way of life is visible and very poignant, even though the country has changed in three decades. The complete absence of visible security checks, including the fact that uniformed police do not bear arms, is the one thing struck me more than any other. No public buildings, including the castle, the parliament, museums or the city hall, seem to have visible built-in security. The only building in the downtown area that does is the old American Embassy! In short, in our day and age there was a place in the Western world where the shift to omnipresent security has not occurred.

People asked me if I felt safe in this environment, and YES, it felt good not to be surrounded by security personnel and devices. I could see cameras so I knew the security was monitored this way, and it did not interfere with our wandering and visits. Has Oslo made an unusual choice? Considering how many countries have gone the opposite direction, the answer is yes. This is especially true when one remembers the horrific attack by Anders Behring Breivik that killed 77 people in 2011. It is not up to me to decide whether their choice was right or wrong; clearly it was their choice and they stand by it.

ALUR - THE NEW LAW ON REAL ESTATE IN FRANCE
The loi pour l’Accès au Logement et à l’Urbanisme Rénové (law for improving access to housing and updating town planning), sponsored by the former minister for housing, Cécile Duflot, has ended up being a lot more pervasive that most people had anticipated. It changes a lot of things regarding renting and purchasing, including the notaire’s obligations, the duties of the syndic and how the French condominium association, la copropriété, now works.

For now I will just deal with some aspects of the landlord-tenant relationship. The ALUR law makes the rules for furnished and unfurnished apartments (location meublée vs. location murs nus) even more similar. It also attempts to put more limitations on the landlord regarding the contents of the lease and the amount of rent sought.

This change, which can be seen as counterproductive, took place because of a long history of abuse in the furnished-apartment rental market, which dates back to a time when short-term rentals barely existed.

In those days, the legal definition of a furnished apartment was one provided with a table, a chair and a bed. The law did not specify what kind of condition the furniture should be in. Landlords benefited because the protection given to tenants of unfurnished apartments did not exist for tenants of furnished ones. The critical issue was that landlords had the right to ask tenants to leave at the end of the lease, for any reason. Furthermore, protective clauses linked to the French concept of domicile did not exist for furnished flats. The logic was that anyone renting a furnished place had a true, stable domicile elsewhere. And yet, from the late 1970s on, almost all furnished apartment rentals were long term and the people living there considered them their home.

Law 2009-323 of March 2009, the so-called Loi Boutin (mobilisation pour le logement et la lutte contre l’exclusion), changed the situation radically. Among other things, it extended domicile-related protection to whatever address a person used to declare his/her income to the tax office. In addition, the requirement that landlords could give notice to a tenant of an unfurnished apartment only for very limited reasons was also applied to furnished apartments, as long as the rental length made it a residential lease and not a vacation rental.

The new law goes even further in this direction, defining what a tenant should be able to expect from a furnished apartment: « un logement décent équipé d'un mobilier en nombre et en qualité suffisants pour permettre au locataire d'y dormir, manger et vivre convenablement au regard des exigences de la vie courante. » Translation: « a decent lodging equipped with enough furniture in good condition to allow the tenant to sleep, eat and live there properly in terms of the expectations of daily life. »

As you can see, France has come a long way from its original definition of « furnished » as « containing a table, a chair and a bed. » Nevertheless, I am sure it will still be a long time before French landlords renting to local people realize that times have changed, and that they owe their tenants a decent place and some customer satisfaction.

Just as an aside, without going into a topic which is still a nasty can of worms, I believe that the spread of short-term or vacation rentals in Paris targeting foreigners, tourists who expect things to work perfectly to get their money’s worth showed that there were some benefits to requiring quality service.

Another change in the law, which has been described as minor but in reality is huge, is that the walk-through (état des lieux) at the beginning and end of a tenancy must now follow a strict procedure involving the filling out of a special new form. This is an effort to eliminate the classic speedy walk-through when the tenant moves in, where everything is described as in perfect or good condition without really examining the state of the rooms. The change will not eliminate complete bad faith on the part of landlords, but since it forces the use of a detailed form signed by both parties, it offers as a starting point an opportunity to go down the list and look at the condition of the floors, ceilings and walls. With the new walk-through form comes an even longer list of mandatory tests, les diagnostics, also applied to furnished rentals.

One last thing to mention, one that came from a purely political decision, is an attempt to monitor the amount of rent paid in an effort to regulate this in terms of market price. We are all waiting to see what the procedure will be, and many have expressed serious doubt that it will actually work. As a Frenchman, I am not automatically against government regulation, since this is the way France functions, but I do not see how a new monitoring body can have more power than the law of supply and demand. So I just hope it will facilitate catching the most unscrupulous landlords, which would be an improvement.

In a next issue, I will address the new rules that the law imposes regarding buying real estate.

A NEW NUMBER FOR THE PARIS PREFECTURE
Foreigners living in Paris who want to change their immigration status can only get an appointment by making a telephone call. The complaint I hear very often is that getting anyone to pick up is virtually impossible. I find it very hard myself, even when I hit the redial button as soon as I hear the busy signal. In May, the Paris préfecture made the system more difficult still, combining the information and appointment services with only one number for both. I have not tried the new number yet, but my guess is that the office is still vastly understaffed for the volume of calls received. Here is the new number: 01.56.95.26.80. Be very patient, and equally stubborn, if you need to call in the near future.

SOME OF MY SERVICE FEES WILL GO UP IN SEPTEMBER
My fee structure involves more than just the initial retainer and an hourly rate. It includes other fees for specific services, and I have not increased their rates for about 10 years. When I first started, I calculated how much time the tasks would take, on average, but the correlation no longer exists. Therefore I will increase the following fees starting on September 1st:

– Handling mail in my office: from 20 to 30 euros per month.

– Handling mail received at my home: from 30 to 40 euros per month

– Surcharge for out-of-office meetings: from 20 to 30 euros.

I am also raising the only flat fee I charge, for obtaining full residency status as an employee in France. In such cases the employer pays me to do the complete procedure, so the prospective employee gets the right to work as an employee, then the long-term visa and finally the carte de séjour. My fee for this procedure will rise from 800€ HT/1.000€ TTC to 1,167€ HT/1,400€ TTC.

OFFICE TO CLOSE FOR SUMMER VACATION
My office will be closed from the evening of Friday July 25th until 9AM on Monday August 25th. As always, I will be reachable by email for emergencies and important matters. The service I offer of receiving mail for clients will continue while the office is closed. I will let individual clients know how to receive or retrieve their mail during this period.

As usual, there will be no August issue.


Best regards,
Jean Taquet

FIGHTING NOTICE GIVEN BY THE LANDLORD

QUESTION

I have been a tenant in my Parisian apartment for decades and have been enjoying it. The building has changed ownership several times, from being owned by a single old man then by an S.C.I. Société Civile Immobilière. Recently my apartment changed owners again and it now belongs to the son of the initial owner.
About three years ago, the son, as the manager of the S.C.I., gave notice for the apartment just above mine so that his son, the grandson of the original owner, could move in. I told the tenant that such a notice done by an S.C.I. was illegal, but nothing was done. This young adult moved in and stayed no more than a couple of months. Then a new tenant came in. Now the place is empty. I recently received a similar notice, stating that the same son wants to move into my apartment. Clearly this is a scam.

I saw a lawyer, who told me that it is impossible to stop a landlord from evicting in this situation since everything is being done legally this time. I want to fight this crook big time. Can French lawyers fight this kind of case in court?


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ANSWER

This is a very complex issue indeed, and only a lawyer specialized in tenant law can take this kind of case and give you a reasonable chance of success.
The very nature of what a lawyer does, anywhere in the world, is to fight for the client’s best interest. But clearly the way lawyers fight is very different from one country to the next. Also, the understanding of the best interest of the client varies enormously around the world. Thus, the first thing to realize is that such a court case would be very different in France from anything you have experienced in the USA, so avoid comparisons as much as possible.

Now I would like to review the situation from the lawyer’s point of view, because this is where the entire case starts and you could be very disappointed by the outcome of the procedure if you overlook how French law sees your situation.

My first point is that French private individual landlords have only three legal grounds to give notice six months before the end of the lease to a tenant who is in compliance with the terms of the lease. The reasons are:

– wishing to sell the property, in which case the tenant has the first right of refusal,

– wishing to use the place for himself or herself and spouse or children,

– wishing to undertake a major renovation of the apartment.

As long as the procedure is scrupulously followed and all the needed documents are valid, the landlord has the absolute right to end a tenancy in such cases. Because the procedure is nothing more than pushing papers, the lawyer you spoke to is right; at this level, there are no grounds to dispute this demand for you to move out.

My second point concerns your description of the landlord as a crook. You do not have a case there, because his actions do not match the legal definition of being a crook, in French un escroc. Indeed, none of what you describe meets the French definition of escroquerie (a swindle). So although you feel that you are the victim of a crook, the matter would never make it in a criminal court. Again, your lawyer is right: you are strictly bound by the rules defining the procedure in question.

Now to address what I know you are trying to say by using the word « crook. » Clearly this landlord is abusing the law, using the letter of the law to deny you the ability to exercise your rights as a lawful tenant. After you move out, if you can prove that the subsequent rental use violates the terms of the notice, you will win the right to move back into the apartment, but that probably will not be what you will want then as compensation for the abuse you will have suffered. This is why so few people fight this situation, even when they sense « but cannot prove »  that the landlord does not intend to comply with the terms of the notice and therefore is not complying with the law.

In your case, you might have some solid grounds to prove the existence of his illegal scheme, and therefore prevent it from happening. Your key to success would be to get documentation from your former neighbor upstairs, who moved out, and include them in a file to be submitted to the court on your behalf. Then, if you could document, in the French legal way, the fact that the son never established his true residence in the apartment upstairs, you would have a reasonable chance of proving un abus de droit (abuse of the law).

Keep in mind what the lawyer said: it is almost a « mission impossible » under normal circumstances. In your situation, it would be very difficult since you would have to rely on a third party, the former upstairs tenant, who might not want to get involved, even to help you. You would also need tax documents proving who paid the taxe d’habitation in recent years on the upstairs apartment, as well as the address the son uses to declare his income in France. One possible drawback is that, if he is young enough, he may be included in the parents income declaration as part of the household, called in French, le foyer fiscal.

If in addition you shift from going after a « crook » to pursuing an « abuser », then you will be in the right frame of mind to give yourself the best chance to stay. I am sure that if the lawyer sees proof of what happened previously, he will change his analysis.

Good luck.

A THIRD WAY TO DISMISS AN EMPLOYEE - RUPTURE CONVENTIONNELLE

QUESTION

After obtaining a French master’s in marketing, I accepted a low position as a junior graphic designer in an advertisement agency, for lack of better offers. I quickly hit it off with my immediate boss and I was allowed to work on more sophisticated projects, and I put in some very long hours at the office. He told me that he would ask senior management and HR to upgrade my position to cadre (management) status and redesign my job description.
I took a three-week vacation earlier this year, and when I came back, my immediate boss had been fired. So I went to see his boss, and the discussion turned very sour very quickly. All I got was a cold thank you for the passionate work I did, but my job description was never changed and I do not qualify for the so-called promised promotion. I hate them now. Even worse, they turned my workmates against me. I call this being harassed and persecuted. So I complained to my new boss, who hates me, and to HR, which answered that my disappointment created all this and I should fix my attitude. About a week ago, I told HR that I wanted a rupture conventionnelle, and therefore they should start the paperwork. They answered that this was not on offer but I could resign any time and they would accept it.

Now I want to report them to the authorities for harassment on the job, to get them to realize that what are doing is illegal. Do you think it is a good idea?


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ANSWER

First, I would like to point out that being driven by emotion, without any plan or full understanding of the bigger picture, is very bad and you have harmed yourself a lot without having gained a thing. I would advise you to drop this strategy «or lack of strategy »  right away. Next, I would question what you would be able to prove if you reported this case to the authorities. You can tell your story, but are you sure you will be giving an objective account of what happened? More important, can you back up your story with evidence of intentional harassment and not just your huge disappointment over the situation? A complaint of harassment would trigger an investigation, and if your case is not solid the backlash could be traumatic, definitely a lot worse than what you have experienced so far.

So my answer, based on what you have described, is that reporting the company for harassment would be a very bad idea.

Now, I would like to propose an alternative solution, which I believe would be a lot more efficient. It follows the logic that all lawyers use worldwide, which I sum up this way: « Pick your fight. » In other words: Instead of going after what is important to you, go after the legal issues you can nail fair and square. You might not get a court decision in your favor for the things that matter to you, but you can win a different case or maybe force your opponent to settle out of court.

You have completely overlooked a detail in your situation. Should you be financially compensated for the overtime you worked? You have been looking at your situation as having been robbed of a promotion and later ostracized. This, in itself, does not mean the employers did anything wrong; it was simply a business decision as far as they were concerned. On the other hand, French law strictly regulates the amount of time employees can work, both normal hours and overtime. As an example, allowing someone to work the equivalent of two full-time jobs is a criminal offense. As an employee, your normal weekly workload is 35 hours. It is just plain illegal to work for pay for more than 10 hours a day or 48 hours a week (44 hours a week for 12 weeks in a row). As usual, there are a few exceptions, but I very much doubt that your employer complied with them. So, at the very least, given the fact that you worked your normal shift and on top of it you worked on some projects with your former boss, I am absolutely sure that you can claim a substantial amount of overtime, which will translate into a substantial amount of money. The rate is 25% more for the first 8 hours from the 36th hour to the 43rd one, and 50% more from the 44th to the 48th.

It is reasonable to think that you may have worked more than 48 hours in one or more weeks. The employer’s liability could be serious, in that case, and even if your immediate boss at the time did not report this, the responsibility goes up the corporate ladder without fail.

The beauty of your situation is that computers record everything, and that data stays around. If you can, quietly document the situation by printing out evidence of when you were working in the office during the period in question. With luck the data will be accessible from your account without having to go to the central system. Apply the rates mentioned above to the actual hours worked, then retain counsel and prepare a summons to the company to pay the money owed to you. If there is excessive, and therefore illegal, overtime you should mention that the authorities might be very interested in your documentation and could launch an investigation into what is happening at this company.

As for the dismissal procedure called rupture conventionnelle which we might translate as « mutually agreed severance » - this procedure created by law 2008-596 of June 25th 2008 is often misunderstood by employees as an alternative to resigning. You made this error, to your cost, as it further weakened your position since all the employer had to do, was quote the law. If an employee is that dissatisfied with an employer, the normal thing to do « and the only legal one »  is to resign.

There used to be just two ways to dismiss an employee. One required the employee to be guilty of a serious professional offense, having done something either illegal or blatantly against the employer’s interests. The other required proven economic grounds and generally entailed shutting down the operation, downsizing or completely reorganizing.

The main reason for creating the new procedure was that there are many situations where an employer is not satisfied with an employee’s work but lacks either of the above-mentioned grounds for dismissal; French employees jobs are protected by law in many ways. It is interesting to note that the government was very concerned at the prospect that employers would use the new procedure to harass employees until they give in. To prevent this, the procedure includes a review of the terms of the rupture conventionnelle agreement by DIRECCTE, the division of the administration that also includes the inspecteurs du travail, or work inspection officers. They are not police as such, but have many of the same prerogatives as a police inspector (detective). For example, they can enter the premises without any warning as long as they have the equivalent of a search warrant.

I would advise you to do the overtime calculation, then have a lawyer send a summons to the company requesting it to pay the overtime you are owed. At that point the employer may propose a rupture conventionnelle. From your description, I am sure this is what will happen, especially if the overtime has gone significantly over the legal limit.

In short, pick your fight and agree to handle this issue as a junior graphic designer. And it would be in your best interest to adjust your attitude so that you can approach this fight in the right frame of mind.

Believe in your fight!
DISCLAIMER
Please forward this message to all those who would be interested in its contents. The information contained in this newsletter is intended only as general information. I strongly urge readers to seek professional guidance concerning the legal and tax matters mentioned. This newsletter is intended as a general guide and is not to be taken as professional advice.


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