FRENCH LAW AND ITS BLIND EYE

THE FRENCH UNDERSTANDING OF WHAT IS LEGAL, ILLEGAL, AND "TOLERATED!"
One of my readers asked me the question below and I must say that the answer is much more complicated than meets the eye. The usual understanding is that what is not clearly defined as "illegal" is considered to be "legal.” This is as black and white as it gets and is true in most countries, but not in France. Here is the story I would like to share with you.

THE QUESTION
As an American, I find a bit puzzling the difference that must exist between what is autorisé (authorized), toléré (tolerated), and interdit (forbidden). American law, or at least, American tradition, seems to have no nuanced grey area such as toléré. Either something is permitted or it is prohibited.

I was once told by the president of my condominium in Paris that parking my bicycle in the courtyard was "only tolerated." Then recently a friend mentioned that she lives in a residence where smoking is "only tolerated," and if she moved out, it might become a residence where smoking is "prohibited." So I have been ruminating on the notion of toléré.

MY ANSWER
You are facing one of the most challenging aspects of living in France. In the Anglo-Saxon world, life is binary - black or white, right or wrong, legal or illegal, and so on. The lines are pretty clear in the American nation and not too many people challenge them. This acceptance unites the country despite the huge diversity of backgrounds and races.

1 – TOO MANY LAWS IN FRANCE
France functions with a very large grey area; moreover, French society cannot handle a binary mode. It starts with witnessing one simple fact:

If everyone were to comply with the entire existing French legislation all the time, my guess would then be that this could only be achieved if everyone in France were to stay in bed all the time.

There are so many laws and so many of them are incompatible with each other that it is almost impossible to comply with the law. One of the crucial missions of the French court system is to interpret a situation and to determine which laws supersede the others, thereby creating precedents for future use.

This is the first piece of the puzzle, which in itself creates a rather complex, confusing situation for a foreigner, since it gives the impression that nothing is allowed and the only answer you will get from your legitimate query is "NO."

2 – THE WARNING MESSAGE LAWS
Secondly, laws are passed that legislators know will never be enforced, or at least, not for a long time in the future. This is what I call "the warning signal." One of the best examples of this situation is the non-smoking law passed in the late 1980s and which was never seriously enforced until the early 2000s. This gave the French people time to accept the new law and change their habits gradually.

At the same time, laws are passed that are meant to be liberally enforced, in a general consensus from the government and the parliament which lasts long after the law has been passed. So this is the second piece of the puzzle, which makes the situation very confusing since such interpretation in itself defeats the normal purpose for passing a law.

3 – DISCRIMINATION DONE AT THE LOCAL LEVEL
Lastly, there is the way the person in authority interprets the law, sees the situation, and makes a ruling. For example, about half (or at least it feels that way!) of the immigration code is not applied to American citizens by the Paris préfecture because, as the civil servants say, “The law is not meant for them anyway."

So this is the third and final piece of the puzzle, which increases the confusion since the individual, especially if he is a foreigner, does not understand why the civil servants do not want to apply the law in a specific case. Furthermore, he will not be given the reason even when he asks why. The most common answer is, "it is my prerogative!”

Now I would like to go back to the two situations mentioned at the beginning, parking a bicycle in a courtyard and smoking being tolerated in a residence, and I will show how they relate to what I have just outlined above concerning French law.

THE COURTYARD SITUATION
A courtyard in a building is a common area and can only be used for the better good of all the tenants that live there; it is not intended for private use. By a strict application of this rule, leaving a bicycle there is defined as "private usage of the common area" and is therefore illegal. However, the syndic and the board of the condominium are trying to use common sense to fix the situation while protecting the interests of the tenants.

Should the tenants of this building indicate that they are not bothered by the presence of a few bicycles in the courtyard, these two authorities may determine that this private use is less damaging to the wellbeing of the condominium than the strict application of the rule. In this case, leaving the bicycle there becomes proper usage by the bicycle owners, and furthermore, the rule is the same for everybody. In other words, it is "toléré."

On the other hand, in the case of a very small courtyard, what could be a good solution for two tenants becomes unmanageable if twenty tenants leave their bicycles there. This is why it can only be "toléré" – this way, the agreement can be nullified if at anytime the situation gets out of hand.

THE SMOKING SITUATION
Here the residence is a private space within a complex for elderly people, rather than a privately owned apartment. The smoker was living there before the enforcement of the non-smoking law and the space was considered a smoking area since the tenant smoked. When it became illegal to have enclosed smoking areas, the administration decided to not enforce the law but to take into consideration this particular person and her circumstances. When she moves out, the next tenant will not have the same right.

In both cases, it is clear to me that this is a matter of the authorities not enforcing rules for specific reasons, hence actions normally not authorized are toléré.

I hope that I have been clear with a matter that is not clear and cannot be!

AUTO-ENTREPRENEUR & IMMIGRATION STATUS
I was in a position to ask the civil servant at the préfecture in Paris about the issue that I had regarding a new status that has become very popular. As I explained in my February 2009 newsletter, the issue was that the Ministry of Labor had stated to me that the status of auto-entrepreneur is not to have any bearing on the immigration status of an applicant. The status of auto-entrepreneur was originally created in order to allow salaried persons to also be self-employed at the same time. This is, at least, the logic behind creating this new status. Therefore, by definition, auto-entrepreneur is a secondary activity and the préfecture should just ignore it when it is time for foreigners to renew their cartes de séjour. In fact, this new status will appear only on the income tax form as a different means to earn money. Even if the applicant says absolutely nothing, the tax declaration will reveal the new registration.

The reality is that the préfecture issues residency permits based on very strict guidelines. The key element here is that the auto-entrepreneur status enables someone to have a secondary activity working as a craftsman (artisan), a merchant (commerçant), or a professional (profession libérale). The problem arises when a person with a carte de séjour and the status of auto-entrepreneur goes to the préfecture to renew their immigration card.

This civil servant in charge of issuing cartes de séjour explained very simply that she enters a code that identifies the legal nature of the requested immigration status. She also enters the type of work the person does. The status Private Life (i.e., mention Vie Privée) awards all the different rights to work mentioned above. Someone with this kind of residency permit runs no risk of losing his or her immigration status when applying for auto-entrepreneur status. For all the other types of cartes de séjour, there would be a immediate conflict between the two different codes to enter, one for the type of carte de séjour, and one for the type of work that the auto-entrepreneur does. The immediate result is a denial of the renewal of the immigration status. Regardless of the choice of the two professional activities, the result is that for the préfecture, one excludes the other.

I also discovered an unforeseen development during our conversation. It appears that the préfecture would accept a foreigner who chooses this new professional status as his sole activity mainly because of the fact that the préfecture would simply issue a carte de séjour based on that single activity. According to the civil servant, there is absolutely no discrimination between the old self-employed status and the new one. The usual guidelines are applied which include the obligation of making minimum wage as quickly as possible, i.e., 11,000 euros net per year, net. The bottom line is that the préfecture does not verify if this is a secondary activity.

Now another interesting twist has come from URSSAF, the authority that registers the declaration of the starting of a business. Asked quite bluntly about their ability to monitor whether the work done as an auto-entrepreneur constitutes a secondary activity, the answer is that there is no monitoring - none whatsoever. If you put all this together, this means that a certain loophole exists and people can register for this status as their primary source of revenue and their sole business/job. There is nothing to hinder this. It is much too soon to predict what will happen when the French administration recognizes this. It could very well be that this aspect of the law, which was so crucial when it was discussed and passed, will never be enforced, possibly because of the economic crisis. The more people there are who are registered with this program, the fewer people there are who are registered as unemployed. This looks very good for the government, statistically, financially, and therefore, politically.

OFFICE CLOSED FOR SUMMER VACATION
Summer is coming up and I would like to let my readers know that the office will be closed from Friday, July 17th until 9 AM Monday, August 31st. As always, I can be reached during this time by email for emergencies and important matters. The service I offer, that of receiving mail for clients, will continue while the office is closed. In due time, I will give individual clients the information necessary to receive or retrieve their mail during this period.

As usual there will be no August issue. I wish everybody a nice summer and happy holidays.

Best regards,

Q & A

THE REQUIRED AMOUNT OF INCOME TO RENEW A CARTE DE SEJOUR

QUESTION
Right now I am dealing with the renewal of my carte de séjour as a professional and I am under the impression that I need to prove that I make 20,000 Euros a year in order to have it renewed. Since I make much less, I need to know how to convince the authorities to renew it so that I can continue to work.
A civil servant that I saw two months ago at the préfecture told me to come back with documentation of my earnings: my income tax declarations, proof of my billing, etc. She also stated that I needed to earn around 20,000 euros for the year. I had initially understood this to mean net income rather than billings. Since I have only netted 6,500 euros from teaching and 2,500 euros from a book, I hope to be OK if the minimum wage is 11,000 euros.

ANSWER
Your question illustrates the difficulties that foreigners have in dealing with the French administration. The civil servants often state requirements that are quite different from the ones mentioned in the application forms issued by the administration, so your initial reflex is to wonder who to trust.

I am now going to review all the aspects of your question so that you can understand what this amount, 20,000 euros, really reflects and why the civil servant mentioned it.

From a legal point of view, I have no idea where the civil servant got the amount of 20,000 euros as a requirement for renewing a carte de séjour for a self-employed person in Paris.

Although the policy of earning 20,000 euros in not written down anywhere, I will explain how the préfecture arrived at this figure and how they interpret it. Unfortunately, their interpretation is becoming more and more narrow as time passes.

The only legally required minimum amount of income that needs be earned during one year is minimum wage, which equals about 11,000 euros in profit.

During the first renewal of a carte de séjour, you are asked to produce copies of your bills for work done and to show a significant effort in finding clients. In my experience, this has been the minimum requirement as long as you are able to document your efforts to find and retain clients during the first year.

For the second renewal, the préfecture officially asks you to produce billing that reflects the SMIC, the French minimum wage, but they will accept lesser amounts equal to 6,000/7,000 euros or more, provided that your billing has significantly grown from the previous year. This in effect proves your continuing efforts to have your business grow.

For the third renewal, the préfecture again officially demands that you earn the SMIC, and, if you do not, it threatens not to renew your card. In reality, if you come up short and can prove that this will not happen the next year, and if you also explain that you do not have the usual profile or are able to give other valid reasons for not attaining the SMIC, then you can get through that year, too, provided you have a very well documented file, even though you are actually failing to meet the requirements.

Starting with the fourth renewal, it becomes almost impossible to get approval if you earn below the SMIC level, since the préfecture now expects you to make at least this minimum and ideally about 40% more, which equals 15,000 euros. Indeed, this business is your sole reason for obtaining French immigration status and you need to show some significant success to really secure this renewal.

I would like to return to the question of the 20,000-euro requirement that the civil servant had told you that you must earn. The rule of thumb for professionals in France is that about a third of your gross income goes to pay taxes (everything that is paid to the government and SÉCU), another third goes to pay your professional expenses (the costs incurred for the business as well as the deductions you are authorized to make), and the last third is your profit (your net income). Based on this understanding, I can then presume that the civil servant was trying to be helpful to you by stating that you should shoot for 20,000 euros in gross income for the year so you can meet the unwritten requirement of 6,000/7,000 euros net, which would be your profit. As often happens in these situations, the civil servant was trying to be helpful, but she confused the issue because she did not give the complete explanation.

THE LANDLORD’S RESPONSIBILITY REGARDING A TENANT’S DEEDS

QUESTION
Some time now I have owned for a rather unique apartment near the Seine in the 6th arrondissement. It is on the ground floor and has the private usage of the garden of the building. When I moved out of France, a few years ago, I found a tenant who wanted a very long lease, 99 years in fact, called in French “un bail amphythéotique” and I accepted this transaction. We officially legalized the purchase of this lease at a notaire's office. As the owner, I pay the condo charges and I also get the minutes of the General Meetings. In the last two meetings, the last provision was about the damage done in the garden and the nuisance it created for the other tenants. There was a motion to summon the owner of this apartment (me!) regarding this gross misuse.
I really feel like I am caught between a rock and a hard place. Why are they going after me when I have not done anything wrong and am quite powerless in regards to my tenant?

ANSWER
Renting an apartment in a condo creates several legal relationships which I will explain as I go along.

First, I'll resume the facts related to the apartment and the garden; several years ago you purchased an apartment and therefore you hold the title to it and you have certain rights related to it.

I assume that the title mentions that the apartment comes with the right to use the garden and that it is adjacent to the apartment and has only one entrance, through your apartment. The person living in the apartment, you or your tenant, has only the use of the garden, and nothing more. The issue here is defining where normal use stops and misuse starts. Stated differently, sitting in a lounge chair in the garden is probably one of the lowest levels of usage. Planting high trees and building a fence grounded in concrete constitute misuse since they change the nature of a city garden. I believe that it would take an in-depth study of the precedents regarding this matter before I could draw a precise line between proper use and misuse, and before I could determine that the tenant has actually not taken proper care of the garden and that his liability is therefore on the line. An interesting question also arises. At what point is the lack of care of the garden considered to be “abusive”?

Secondly, I would like to clarify the tenant’s personal liability regarding his wrongdoings. One of the fundamental concepts in the existing legal system is the assumption that a sane individual is held accountable for what he does and can be called on to pay for his behavior. Therefore this tenant could be held liable by the condo association for any damages caused in your condo and in the garden. He could also be held responsible for any damages he caused to any of the tenants who have suffered a loss because of his actions. Furthermore, he could be held liable for damages by you, since his conduct constitutes a breech of some of the provisions found in the lease, assuming that the lease spells out the limited prerogatives and the long list of obligations related to the usage and the upkeep of this garden.

The third element to clarify is your relationship with your condo association. All the bylaws related to Parisian buildings that I have reviewed clearly define the apartment owner's obligations when he or she rents their apartment to another person. This means that you, as the landlord, must insist your renter maintain an acceptable lifestyle and behavior so that there is no problem with the other apartment owners or tenants. This obligation creates a legal solidarity among all the owners of the apartments and between you and your tenant, and also colors your dealings with the condo association. Stated differently, you, the owner of the apartment, feel you are being dragged into a lawsuit as the bad guy, when in reality you are also the victim of your tenant. You resent this situation and find it totally unfair, but taking the owner of the apartment to court is the normal application of the bylaws and, from the condo association's perspective, it makes total sense.

This last piece of the puzzle explains why the condo association's general meeting voted the motion to take you to court.

As paradoxical as it seems, in reality, taking you to court is more to your benefit than to your detriment. It seems pretty clear that the apartment owners in your condo association are fed up with your tenant and want this person to move as soon as possible. As the landlord, you can consider the lease to be null and void due to a long breech of contract by your tenant. Taking you to court in effect opens a safe way for you to sue your tenant for breech of contract, and for you to ask for an immediate termination of the lease, declaring it null and void. If you have a good lawyer, you should be able to get the lease annulled before you get a court decision against you.

My advice to you is to file against your tenant and use the condo association as your ally instead of fighting the motion passed against you at the last general meeting.

Furthermore, your situation is complicated by the fact that your tenant purchased from you a "99-year lease" instead of paying you a periodical rent. This has obviously given him the impression that he has bought the apartment with the use of the garden, and that as the "owner" he can do whatever he wants. He is absolutely wrong in believing this, but this is what you are dealing with.

Since he purchased and paid up front for a 99-year lease, instead of signing a simple rental contract with periodic payments, you could be in for bigger and more gruesome problems if the court annuls the lease. Your problems will include calculating the amount of the refund you owe your tenant from the beginning of the lease to its enforced termination, and calculating the amount of damages you can claim because of his wrongdoing. This will be a very complex evaluation.

So prepare well for each step of the process and be sure you make the right decision each time. You may be in for a very long fight.