Select Page

The health pass: a headache for employers: between the obligation of prevention and the prohibition of dismissal, what to do?

 

 

 

 

 

When will employees be required to show a health pass?

 As already indicated in previous legal weeklies, employees will be obliged to present a health pass to go to the places mentioned in the Law of 6 August 2021 as from 30 August 2021. For trainees and apprentices, this date is extended to 30 September 2021. For carers and people working with vulnerable people, they will have to be vaccinated by 15 September 2021.

Can the employer impose vaccination against COVID-19 as part of his obligation of prevention and safety towards his employees?

 The implementation of this obligation cannot be applied to this type of vaccination until it is made compulsory by the Labour Code, as is the case for the tetanus vaccine.

 This would be a breach of the Labour Code. but also an attack on the integrity of the human body and the right to work. the right to freely dispose of one's body, as set out in the French Civil Code.

 The Government has attempted to strike a balanced balance between the constitutional objective of health protection and the rights and freedoms of employees likely to be affected by emergency health measures.

 The possibility of dismissal in the absence of vaccination was ruled out by the Health Crisis Management Act.

 For employees on permanent contracts, the dismissal of employees who do not have a vaccination passport has been made impossible.

 These employees would be subject to a suspension of their employment contract with an indefinite interruption of salary.

 Will employers then be able to invoke other grounds for dismissal that will be considered real and serious?

 With regard to employees on fixed-term contracts, the Constitutional Council censured the law's amendment providing for the possibility of early termination of a fixed-term contract for failure to submit a health pass. The Council based its decision on a breach of equality between employees on permanent and fixed-term contracts: 

 " 78. Accordingly, by providing that failure to present a "health pass" constitutes grounds for terminating only fixed-term or assignment contracts, the legislator has instituted a difference in treatment between employees depending on the type of contract. nature of their employment contract which is unrelated to the objective pursued (Recital 78 of Constitutional Council Decision no. 2021-824 DC of 5 August 2021).

 

It is therefore the renewal of the fixed-term contract that will pose difficulties.  

 

Furthermore, the conclusion of a permanent contract following a fixed-term contract will not be possible if the employee does not have a health pass.

 Other grounds for dismissal which the employer may use without the dismissal being characterised as unfair:

 

  • the employer may invoke the reason for dismissal linked to repeated absences disrupting the operation and organisation of the company, while checking that the company's dysfunctions are real and concrete.

 

  • dismissal for unfitness for work does not appear to be a very safe solution for the employer. In fact, unfitness for work is defined as a lack of the physical or mental abilities and/or qualities required to perform one's duties. Assessed according to the workstation The absence of a vaccination passport does not call into question the employee's physical and mental fitness for the job. However, the absence of a vaccination passport does not call into question the employee's physical and mental fitness to carry out his duties.

 It remains to be seen how the occupational medicine and labour courts will react to this question, which seems to be arising. 

 

Finally, it is questionable whether the issue of health pass is related to the issue of discrimination on the basis of health status.  

 

While Article L.1132-1 of the French Labour Code states that "no person may be [...] dismissed or subjected to a discriminatory measureby reason of [...] his morals, [...] by reason of his state of health", the vaccination passport is not directly linked to the employee's state of health. 

 

It is not a question of creating inequality of treatment between employees who have a health pass and those who do not, for reasons related to their health. It is a question of establishing this distinction in treatment based on the protection of public health and the very high risk of the virus spreading on the national territory. Thus, as in the case of unfitness, it is not directly a question of the employee's state of health, so that the provisions of the Labour Code prohibiting all forms of discrimination could not, in the end, apply to this new situation.

 

What remains to be seen is how the labour courts will rule on disputes arising from the Law of 6 August 2021. 

 

Cécile ZAKINE will accompany you from the beginning of the school year on these issues and will assist you in court in the event of a dispute

 

The Legal Weekly  

 

Encroachment and neighbourhood disputes

Any encroachment on another's land is punishable by law because it is an infringement of the right to property, constitutionally recognised and characterised as inviolable and sacred since the Declaration of the Rights of Man and the Citizen.

Encroachment on another person's land is an abuse of right. the right to extend a building on a neighbouring plot of land belonging to another person, without the latter's consent.

Initially, the Court of Cassation sanctioned encroachment by qualifying it as an abuse of right even when it was minimal and could order the destruction of a structure even when a piece of roof protruded onto the neighbouring property or when a single centimetre of encroachment was noted.

Indeed, the victim of the encroachment is entitled to claim the destruction of the building, the restoration of the site and damages. The compensation for damages will vary according to the situation.

What legal actions are available to the litigant?

In order to obtain the demolition of the neighbouring construction that encroaches on his property, the litigant must first be able to prove the limits of his property and initiate a boundary marking action, which will allow him, through the intermediary of a judicial expert appointed by the Court (a surveyor), to mark the limits of his property.

It is perfectly possible to have an amicable boundary demarcation. when the parties agree to move in this direction.

The demarcation may thus enable the judge to establish the encroachment, order the demolition of the structure built on the neighbour's property and order the payment of damages.

However, it should be noted that the case law is no longer as strict as the first rulings in this area. The judges verify the encroachment and check for proportionality to avoid ordering the demolition of an entire structure if the encroachment is minimal and has lasted for many years. The rights of each of the parties are in fact analysed in a sovereign manner by the judges to avoid situations that would not take into account the reality of the facts for too strict an application of the law.

The Cécile ZAKINE's office accompanies you in all matters relating to neighbourhood disputes, encroachment, boundary actions and easements. These are all issues that generate neighbourhood disputes that could be avoided.

 

Your title goes here

Your content goes here. Edit or remove this text inline or in the module Content settings. You can also style every aspect of this content in the module Design settings and even apply custom CSS to this text in the module Advanced settings.

The legal weekly

Listening to the customer

 

It is important to ask the question: did I listen to him or just hear him?

 

The first consultation is crucial because the first obligation is to listen to the client.

 

Peter Drucker said: "The most important thing in communication is to hear what is not said".

 

Let's put our prejudices aside, let's not think in the customer's shoes and really listen to them to understand their needs.

 

Does he want to take legal action directly or would he prefer to try a settlement?

 

Will he be the directive client or will he allow himself to be guided and accompanied by a competent professional?

 

The Cécile ZAKINE's office will be able to understand what you are talking about and will advise you in the best possible way according to your objectives, your expectations and your needs.

Me Zakine works all over France: Antibes, Grasse, Paris, Bordeaux, Lyon, Marseille, Toulouse, Ile de France, Neuilly sur Seine, Boulogne, Villepinte, Bezons, Pontoise, Toulon, Dijon, Bordeaux, Saint Tropez, PerpignanMont de Marsan, Rennes, Nantes, Nancy, Metz and Thionville.

Don't hesitate to contact Me Zakine, who will be able to advise you on all these issues.

Ms Zakine will also be available to you by videoconference, which you can arrange at your convenience via her website: https://calendly.com/maitre-zakine

RIGHTS OF WAY: A COMPLETE QUESTION-AND-ANSWER GUIDE

 

1: What is a right of way?

In short: A right of way is a real right that allows the owner of land to access his property by crossing that of a neighbor.

In detail: The easement of right of way is governed by Articles 637 et seq. of the Civil Code. Article 637 defines it as "a charge imposed on an inheritance for the use and benefit of an inheritance belonging to another owner." It creates a legal relationship between two properties: the dominant property (which benefits from the right of way) and the servient property (which supports it). This easement may be established by law, by agreement between the owners, or by court decision depending on the circumstances.

2: In what cases can you legally cross your neighbor's land?

In short: Mainly in two situations: when your property is landlocked (without access to the public highway) or by contractual agreement with your neighbor.

In detail: The two main situations are:

  1. The landlocked property : According to Article 682 of the Civil Code, the owner of land whose land has no access to the public highway or has an insufficient access route may claim passage over neighboring land. This easement is called "legal" because it applies even without agreement.
  2. Difficult or expensive access : A property that has technically usable access but is difficult to use (steep slope, prohibitive development costs, etc.) may benefit from a "conventional" easement, established with the neighbor's agreement in accordance with Article 686 of the Civil Code. Unlike a legal easement, this cannot be imposed without consent.

3: How is a right of way established due to an enclave?

– In brief: The easement is established either by amicable agreement formalized with a notary, or by court decision if no agreement is possible.

In detail: The establishment of a right of way due to an enclave follows several principles:

  • According to Article 683 of the Civil Code, the passage must normally be taken on the side where the route is shortest to the public highway.
  • However, it must be fixed in the least damaging place for the owner who suffers it.
  • Compensation proportional to the damage caused is generally due to the owner of the land crossed (article 682, paragraph 3).
  • Article 682-1 specifies that the owner of the servient land may request, at any time, the relocation of the passage to another location on his land, provided that this relocation does not affect the use or make it more inconvenient.
  • The document establishing the easement must specify the exact location of the passage, its width, and the terms of use.

4: Can a right of way be cancelled if the neighbor is no longer landlocked?

In short: Yes, the right of way due to an enclave legally ceases as soon as the enclave disappears.

In detail: Article 703 of the Civil Code clearly states that "easements cease when things are in such a state that they can no longer be used." Thus, when an owner benefiting from a right of way acquires a plot of land giving him direct access to the public highway, or when a new public highway is created along the edge of his property, the easement due to enclave no longer has any legal reason to exist. The owner of the servient tenement can then request the declaration of this extinction and the removal of the right of way.

5: Can an owner refuse to terminate an easement if he acquires new access?

In short: He can only object if the new access is insufficient, dangerous or difficult to use.

In detail: The owner of the dominant land may contest the extinction of the easement by demonstrating that:

  • The new access presents a danger (poor visibility on the public highway, steep slope)
  • Its development would require work disproportionate to the value of the property
  • Technical, administrative or urban planning constraints prevent the normal use of this new access
  • Its configuration does not allow a use corresponding to the purpose of the fund (for example, unsuitable for the passage of agricultural vehicles if the property is a farm)

It is therefore not enough for a new access to exist materially: it must be actually practicable and adapted to the legitimate needs of the owner.

6: What is the procedure for canceling a right of way that has become useless?

In short: Attempt at amicable agreement, then notarized formalization in the event of agreement, or legal action in the event of refusal.

In detail: The recommended procedure involves several steps:

  1. Attempt at amicable settlement : Contact the beneficiary to demonstrate that the easement no longer exists and offer to formally waive it.
  2. Notarized report : In the event of agreement, have a notarial deed drawn up confirming the termination of the easement and publish it in the land registry office for enforceability against third parties.
  3. Mediation or conciliation : In the event of disagreement, request the intervention of a mediator or conciliator before any legal action.
  4. Legal action : As a last resort, refer the matter to the territorially competent court (that of the location of the building) to request the declaration of the extinction of the easement.
  5. Legal expertise possible : The court may order an expert opinion to assess whether the new access is actually sufficient.

7: Is the conventional easement subject to the same extinction rules?

In short: No, an easement established by agreement does not automatically expire if the enclave disappears, unless otherwise stipulated in the deed.

In detail: Unlike the legal easement due to enclave, the conventional easement (established by agreement) obeys different rules:

  • It persists even if the enclave disappears, unless the act explicitly specifies that it will cease in this case.
  • It can be extinguished by:
    • Mutual agreement of the parties (amendment of the initial act)
    • Non-use for thirty years (article 706 of the Civil Code)
    • Confusion (when the dominant and servient properties belong to the same owner)
    • Permanent inability to exercise (material destruction)

It is therefore essential to check the exact nature of the easement (legal or conventional) and the precise terms of the act establishing it to determine under what conditions it can end.

 
Make an appointment €45 30 minutes

8: What are the rights and obligations related to the maintenance of the passage?

In short: By default, maintenance is the responsibility of the beneficiary of the easement, but the constitutive act may provide for other terms.

In detail: Article 697 of the Civil Code provides that "the person to whom an easement is owed has the right to carry out all the works necessary to use it and to preserve it." Consequently:

  • The owner of the dominant land must generally bear the costs of maintaining the passage
  • He cannot aggravate the easement (widen the passage, modify its route unilaterally)
  • The owner of the servient tenement cannot do anything that reduces the use of the easement (build on the passage, plant trees obstructing it)
  • The constitutive act may provide for a different distribution of maintenance costs
  • In the event of abnormal deterioration, a sharing of costs may be requested.

Good faith and the search for concerted solutions are generally preferred to avoid conflicts related to maintenance.

9: Are the heirs or new owners bound by existing easements?

In short: Yes, easements are attached to properties and not to people, so they are transferred automatically.

In detail: Article 700 of the Civil Code specifies that "if the inheritance for which the servitude was established is divided, the servitude remains due for each portion." Similarly:

  • In the event of sale, donation or inheritance, the new owner inherits the active and passive easements
  • The seller has a legal obligation to inform the buyer of the existence of easements
  • These easements must be mentioned in notarial deeds
  • When purchasing real estate, it is crucial to consult:
    • The title deed and its annexes
    • The mortgage status of the property
    • Urban planning documents
    • Existing plans and boundaries

Even an easement not mentioned in the deed of sale remains enforceable if it is published in the land registry service.

10: Can the location of a right of way be modified?

In short: Yes, either by agreement between the parties or at the initiative of the owner of the land crossed if the movement does not make use more difficult.

In detail: Article 701 of the Civil Code specifies that "the owner of the subject land may not do anything that tends to diminish the use of the easement or make it more inconvenient." However, Article 682-1 allows the owner of the servient land to request the relocation of the passage at his own expense if he can demonstrate a legitimate interest.

To be accepted, this trip must:

  • Do not reduce the convenience of use for the beneficiary
  • Be fully funded by the applicant
  • Present an objective interest (land consolidation, construction project, etc.)
  • Be the subject of a new notarial deed if the parties agree

In the event of disagreement, the court will assess whether the conditions for the move are met.

11: Can a right of way be subject to acquisitive prescription?

In short: No, a right of way can never be acquired simply by prolonged use, even after several decades.

In detail: Article 691 of the Civil Code clearly states that "continuous non-apparent easements and discontinuous easements, whether apparent or not, can only be established by title." Since a passage is considered a discontinuous easement (which is only exercised by human action), it cannot be acquired by prescription.

This rule has important consequences:

  • Merely using a passage on someone else's land for 30 years or more does not create any rights
  • The owner's tolerance never amounts to recognition of a right of way.
  • Only a written act (agreement or judgment) can create a valid right of way
  • The owner of the land can, in theory, prohibit passage at any time in the absence of a title

To secure a passage that has been used for a long time, it is therefore essential to formalize it with a notarial deed.

12: What are the consequences of the aggravation of a right of way?

In short: Unauthorized aggravation may be contested by the owner of the land crossed, resulting in restrictions or compensation.

In detail: According to Article 702 of the Civil Code, "a person who has a right of servitude can only use it according to his title, without being able to make any change which worsens the condition of the former."

Worsening can result from several factors:

  • Significant increase in frequency of use
  • Widening or modification of the route without authorization
  • Change of destination (pedestrian crossing becoming passable)
  • Use by persons not provided for in the constitutive act
  • Extension to new constructions not initially planned

In the event of a deterioration, the owner of the servient tenement may:

  • Request a return to the original use in accordance with the title
  • Request additional compensation
  • Obtain adjustments to limit nuisances
  • In the event of a serious violation, have the abuse of rights noted through legal means

13: How is the compensation due for a right of way calculated?

In short: The compensation is proportional to the damage suffered, taking into account the depreciation of the property and the nuisances caused.

In detail: According to Article 682, paragraph 3 of the Civil Code, the passage must be established "in return for compensation proportionate to the damage it may cause." This compensation is not a purchase price but rather compensation.

The elements generally taken into account for its calculation include:

  • The area of land impacted by the passage
  • Depreciation in property value
  • The nuisances generated (noise, dust, loss of privacy)
  • Necessary maintenance of the passage
  • The consequences for the development of the rest of the property
  • The expected intensity of use of the passage

The compensation may be set in the form of a single lump sum or an annual annuity. It may be revised in the event of a significant change in the conditions of exercise of the easement.

14: Are rights of way applicable to rural and forest roads?

R14 – In brief: Rural and forest properties benefit from specific rules for easements, with special provisions for exploitation.

In detail: Rural roads, belonging to municipalities, are covered by the Rural and Maritime Fishing Code. Article L. 161-5 states that "the municipal authority is responsible for the policing and conservation of rural roads."

For forest properties, the Forest Code provides specific provisions:

  • Article L. 155-1 establishes specific rules concerning trees on the edge
  • Article L. 155-2 specifies that any landlocked forest property benefits from the right of way, not only for current exploitation, but also to ensure its service for the purpose of fighting fires.
  • Special easements may be imposed for the defense of forests against fires (DFCI)

Agricultural properties also benefit from special provisions in the Rural Code concerning the opening up of operating plots, with special attention paid to the passage of agricultural machinery.

15: What are the remedies if a neighbor illegally blocks a right of way?

In short: You can send a formal notice, then request a judicial referral to put an end to the disturbance quickly, and possibly claim damages.

In detail: Obstruction of a legally established right of way constitutes a disturbance that is punishable by law. The possible remedies are:

  1. Amicable approach and formal notice : Article 56 of the Code of Civil Procedure encourages the attempt to reach an amicable resolution. A registered letter with acknowledgment of receipt formally requiring the neighbor to restore the right of way constitutes a first formal step.
  2. Summary proceedings : In an emergency, Article 835 of the Code of Civil Procedure allows for referral to the interim relief judge to quickly obtain an order ordering the cessation of the disturbance. This procedure is particularly appropriate when the blockage prevents access to the home or a professional activity.
  3. Action at the bottom : A full action before the judicial court makes it possible to have the right definitively recognized and to obtain compensation for the damage suffered.
  4. Penalty and forced execution : The judge may attach a financial penalty to his decision (amount to be paid per day of delay) in accordance with Article L. 131-1 of the Code of Civil Enforcement Procedures.

In the event of prolonged obstruction, damages may cover the costs incurred to otherwise access the property, as well as the moral prejudice linked to this situation.

Make an appointment €45 30 minutes

The Lawyer must appear as an available interlocutor and answer the client's questions throughout the processing of the file. The firm operates in the Alpes Maritimes region (Antibes, Cannes Grasse, Nice) but also throughout France (Bordeaux, Lyon, Marseille, Paris, Paris region, Strasbourg, Nantes, Nancy, PerpignanToulouse, Bezons, Villepinte, Pontoise, Rennes). 

Behind the scenes of the 2024 Olympic Games, a social conflict is brewing. At the heart of the controversy: the controversial use of the daily package system. This system, supposed to offer more flexibility to independent workers, seems to have been diverted from its initial objective, leaving thousands of workers in a precarious and potentially illegal situation.

The daily package: a poorly implemented system?

The daily package, governed by article L. 3121-58 of the Labor Code, is a system for calculating working time in days rather than hours over a year. Initially designed for managers, it can also be applied to "autonomous employees" under certain strict conditions.

Ms. Sarah Zakine, labor law attorney, explains: "To be eligible for the daily package, an employee must benefit from real autonomy in organizing their schedule. This is the sine qua non condition of this system."

However, according to the testimonies collected, the employees of the 2024 Olympic Games seem far from this promised autonomy.

Imposed schedules, fictitious autonomy

"We were made to sign contracts for a flat rate per day, but we are forced to work strict hours, from 1:30 p.m. to 11 p.m.," an airport employee testified anonymously. "Where is our freedom of organization?"

This situation raises serious legal questions. Article L. 3121-59 of the Labor Code clearly states that the daily package can only apply to employees "who have autonomy in organizing their schedule.

Risks for the Olympic Games Organizing Committee (OCOG)

The COJO is exposed to heavy sanctions. "In the event of a dispute, the courts could reclassify these fixed-day contracts as standard contracts," warns Mr. Zakine. "This would imply the retroactive payment of all overtime worked, increased as appropriate."

The case law is clear on this point. In a judgment of 2 July 2014 (no. 13-11940), the Court of Cassation recalled that the lack of autonomy of the employee nullifies the flat-rate days agreement.

A call to action for employees

The employees concerned have every interest in acting quickly. Article L. 3245-1 of the Labor Code provides for a limitation period of 3 years for actions for payment of salary. “Every day that passes is one day less to assert one’s rights,” insists Me Zakine.

Difference between Individual House Construction Contract (CCMI) and Sale in Perfectly Completed Condition (VEFA)
by Me Zakine

 

In real estate matters, two eminently important contracts dictate the relationship between a builder and a buyer: the individual house construction contract (CCMI) and the sale in a state of perfect completion (VEFA).

Although these two modalities are often equated, they have crucial distinctions that require special attention.

Definitions of CCMI and VEFA :

  1. Individual House Construction Contract (CCMI) :

The CCMI is a contract governed by law no. 90-1129 of December 19, 1990, known as the "Spinetta law". It commits a builder to carry out the construction of an individual house on behalf of a purchaser. This contract provides for a completion guarantee as well as a perfect completion guarantee.

  1. Sale in Perfectly Completed Condition (VEFA):

The VEFA, for its part, is governed by articles L. 261-1 and following of the Construction and Housing Code. It consists of the sale of a property under construction or to be built. The real estate developer then sells a property that he undertakes to be built on time and conditions agreed with the purchaser.

Key Distinctions:

  1. Nature of the Contract:

The CCMI is a construction contract where the builder agrees to build an individual house according to the specifications agreed with the purchaser. The VEFA is a sales contract relating to a property under construction or to be built.

  1. Responsibilities:

As part of the CCMI, the manufacturer is responsible of the entire construction process, from design to delivery. The purchaser is the project owner and the construction site is supervised by the builder's site manager. In VEFA, the developer is responsible for the construction of the property sold, but also for its marketing. The developer is the project owner. The construction site is supervised by a project manager or an architect.

  1. The delivery dateison of the bien : 

In the context of a CCMI, the delivery date is usually fixed in a precise and detailed manner in the contract. This date constitutes a contractual commitment on the part of the manufacturer towards the purchaser. In the event of a delay in delivery, the manufacturer is required to pay the purchaser late payment penalties, except in the event of force majeure or fault on the part of the purchaser.

Unlike the CCMI, the delivery date in VEFA is often less precise and may be subject to uncertainties related to the progress of the work. The VEFA contract generally sets an estimated delivery period, rather than an exact date. The parties then agree on a time range within which delivery should take place.

  1. Compensation or penalties in cas late : 

 

In terms of CCMI, late payment penalties are generally calculated on a daily basis: 1/3000th of the construction amount per day of delay (set by Law).

This amount due as late payment penalties may be added to any other damage suffered, in particular moral damage or financial damage linked to rent paid unduly (rental damage) or linked to the rental of a box or a parking space.

These are damages awarded in addition to late payment penalties.

The VEFA contract does not does not provide for late payment penalties as in the CCMI unless the contract provides otherwise. In this case, it is appropriate to calculate them differently and take into account all the damages suffered. Here are the main losses that the purchaser may suffer in the event of late delivery in VEFA also applicable to the CCMI:

  • Financial loss :

Delays in delivery of the property may result in additional costs for the purchaser, such as rent or mortgage payments for the purchaser's current home. The purchaser may also suffer financial loss if the delay in delivery impacts their real estate projects or investments, particularly in the event of resale or rental of the property.

  • Moral damage :

Delays in delivery can generate stress, anxiety and uncertainty for the buyer, who sees his real estate project delayed. The buyer may also be forced to extend his current housing situation, which can be a source of discomfort and insecurity.

  • Material damage :

In the event of a significant delay, the purchaser may be forced to find a temporary accommodation solution, which may result in additional costs. The delay in delivery may also cause logistical and organizational inconveniences for the purchaser, particularly with regard to moving and the management of their property.

  • Loss of enjoyment :

The purchaser may be deprived of the peaceful enjoyment of his real estate during the period of delay, which constitutes a loss in itself. In the event of a significant delay, the purchaser may be deprived of the advantages and specific features of the real estate he has chosen, which may affect his comfort and satisfaction.

  • Project damage :

Delay in delivery may jeopardize the buyer's life projects and future plans, particularly with regard to planning their move, interior design or professional projects related to the property. It is important to note that the damages suffered in the event of a delay in delivery in VEFA or CCMI may vary depending on the length and extent of the delay, as well as the specific circumstances of each case.

 

  1. Guarantees:

The CCMI and the VEFA provide a completion guarantee and a perfect completion guarantee for the benefit of the purchaser, offering extensive protection against construction defects. In VEFA as in CCMI, the purchaser benefits from the legal guarantees of perfect completion, proper functioning and ten-year, which respectively cover defects, equipment and damage affecting the solidity of the work.

In short, although the CCMI and the VEFA are intended to build a property, their characteristics and legal regimes differ significantly. It is essential for the parties involved to understand these distinctions in order to best secure their rights and obligations in the context of their real estate transactions. Thus, a specialized legal consultation often remains recommended to avoid any subsequent dispute and ensure perfect execution of contracts.

Apollonia affair – June 2024

Posted on April 11, 2024

 

Reminder of the facts of the Appollonia Affair

In 2009, the resounding real estate scandal of the Apollonia affair broke out in France. Involving the eponymous real estate company and hundreds of individuals cheated by its dubious actions, this affair shook the world of real estate and the practice of VEFA

Apollonia's non-regulatory practices were at the heart of the scam:
– sale of off-plan apartments at greatly overvalued prices;
– promises of guaranteed rental returns which never materialized;
– charging large commissions and using aggressive sales techniques. 

With around 700 complainants and fraud estimated at nearly 800 million euros, the extent of the financial and moral damage suffered by the victims is considerable, causing shock waves across the country. " The Apollonia affair and VEFA justice » refers to a real estate scandal that rocked France in the 2000s. The VEFA, or Sale in Future State of Completion, is a contract for the sale of a property still under construction.

The Apollonia Affair, named after the real estate company at the heart of the scandal, came to light when buyers found themselves faced with delays in delivery of their properties, construction quality problems and, in some cases , to pure and simple disappearances of invested funds.

Investors were scammed in connection with real estate programs in VEFA proposed by the Apollonia company, managed by Jean-Claude Mas. 

These programs consisted of the purchase of housing intended for furnished rental, with the promise of attractive returns. However, the housing was not built or was delivered late, and the promised returns were never achieved.

The case sparked numerous complaints from aggrieved investors, who often lost a significant portion of their capital. Investigations revealed fraudulent practices, such as overbilling, complex financial arrangements and concealment of information.

In the often opaque world of real estate, financial scandals are unfortunately not rare. The Apollonia affair, recently brought to the forefront, sadly illustrates this reality.

This affair, which shook the off-plan sale (VEFA) sector, highlights sophisticated fraud practices, leading to colossal financial losses for many investors.

The modus operandi in this affair is as complex as it is scandalous. 

Deeds signed massively “on the corner of a table”, in cafés or luxury Parisian hotels. Everything was done to put customers at ease. One of the most disturbing aspects of this affair is the alleged involvement of certain banks and notaries in validating and facilitating these fraudulent transactions. Falsified documents, non-existent financial guarantees and manipulation of funds have been cited as part of these questionable practices.

 And then everything exploded in 2008.

How does Me Zakine's client intervene in the Appollonia affair?

 Mr. Zakine, Lawyer and Doctor of Law represents his client in this case Apolonia. The latter will learn of the emergence of this case on the radio.

 This is the start of 15 years of legal battle, anxiety and hard work not to be ruined.

 The scale of financial losses suffered by investors is staggering, with estimates reaching almost a billion euros. These losses not only have serious economic repercussions for individual investors, but also undermine public confidence in the financial and real estate system as a whole.

 MDespite the efforts of the authorities to investigate this case and bring those responsible to justice, the road to repairing the harm remains long and uncertain for many victims of the Apollonia affair. Legal disputes are increasing, with accusations brought against several stakeholders, including the real estate company itself, the banks and the notaries involved.

Latest development in the Appollonia affair?

 The Cabinet Zakine would like to inform you of recent developments in the Apollonia affair, concerning allegations of a billion euro fraud involving the sale in the state of future completion (VEFA), banks and notaries.  Me Zakine recently obtained a favorable decision before the Paris Court of Appeal.  The Judge clearly indicated that our clients were perfectly well founded and legitimate to request a suspension of proceedings while the secrecy of the investigation was lifted. This decision marks a significant step forward in our approach to guaranteeing fair justice for our clients.

Despite the lifting of the secrecy of the investigation during the proceedings, the Judge still noted that this request was particularly well-founded.

This decision was welcomed and gave hope to his clients regarding the, we hope, positive outcome of the case which will be definitively pleaded.  

By this decision filled with justice, the Judge considered that the buyers were justified in their request, thus strengthening our position and recognizing the legitimacy of our actions and those of our clients in this long fight.

This case highlights the critical need for stricter regulation and increased oversight in the real estate sector to prevent such disasters in the future. Investors must be able to have confidence in the integrity of real estate transactions and be protected against fraudulent and deceptive practices.

In conclusion, the Apollonia case represents a grim reminder of the dangers inherent in real estate investing and highlights the continuing flaws in the regulation and oversight of the sector. Authorities and market participants must redouble their efforts to ensure transparency, accountability and investor protection in all real estate transactions.

In an area where trust is essential, the Apollonia affair reminds us that vigilance is required and that responsibility must be assumed at all levels to avoid such scandals in the future.

Contact a lawyer who knows the Appollonia case

How does Me Zakine's client intervene in the Appollonia affair?

Cabinet Zakine remains at your side to provide you with all the necessary support in this matter.

We will continue to work tirelessly to assert your rights and get a repair fair for the financial and undoubtedly economic damages suffered.

Do not hesitate to contact us for any questions that could affect the dark Apollonia affair, this vast sales scam in the state of future completion. 

Maître Zakine – Lawyer in the Apollonia affair

5 Things to Know if you want to buy real estate at Grasse Court auctions

Auctions in Grasse constitute an interesting alternative for acquiring real estate and movable property at prices often below the market. Whether you are an investor, a first-time buyer or simply looking for a good deal, this complete guide will allow you to understand the different procedures, the steps to follow and the advice to participate in auctions in Grasse with complete confidence. Only necessity: have the funds or an agreement in principle from your banker! As a reminder, you can find the list of goods to be sold at auction here.

1. What can be found for sale at the Grasse Court auction?

The Grasse court organizes two types of auctions:

  • The real estate auctions : They concern apartments, houses, land, garages, etc. These assets can come from property foreclosures, judicial liquidations or vacant inheritances.
  • Sales to furniture auctions : They concern furniture, jewelry, paintings, works of art, etc.

The Grasse real estate auctions offer all types of property: this ranges from an apartment, a parking space or simply private land which is under the jurisdiction of the Grasse Court.

2. The different procedures

Two distinct procedures govern the auctions:

  • Judicial auctions : They are ordered by a judge and supervised by a lawyer. Most properties put up for sale in Grasse are sold via this procedure.
  • Voluntary auctions : They are organized at the request of the owner of the property, who wishes to sell it quickly. This procedure is less common in Grasse.

3. Steps to follow to participate in the auction

A. Find out about the properties

  • Consult the sale catalog: available online on the website of Grasse court or from the lawyer in charge of the sale.
  • Visit the properties: if possible, to get an idea of their condition and value. This step is essential.
  • Ask for estimates: from real estate experts or auctioneers for movable property. Otherwise, make up your own mind knowing that you will have costs to add (consult our estimated calculator for this).

B. Take contact a lawyer.

  • To be able to respond and bid (push the bids), you must have a lawyer's office (you must be a lawyer). To do this, contact a lawyer who does auctions and ask them if they are already booked for this period.

C. Post a bond

  • A sum of money that guarantees your commitment to pay the hammer price if you win the auction.
  • The amount of the bond is generally 10% of the initial price. Payment by cashier's check must be given to the lawyer who will push the bidding.

D. Cross your fingers

  • The sale takes place in a courtroom at the Grasse court.
  • Instruct your lawyer to push the stakes and hope.

4. Fees to pay

In addition to the hammer price, you will have to pay the following fees:

  • Auction Fees : 14.28% of the hammer price.
  • Recording rights : for real estate sales, vary according to the sale price.
  • Attorney fees : if you use a lawyer to assist you (which is mandatory for real estate).

5. Tips for participating in auctions

  • Set a budget and do not exceed it. (this is why lawyers are necessary)
  • Be careful and don't get carried away by the adrenaline of selling.
  • If in doubt, do not hesitate to call a professional (lawyer, real estate expert, etc.).

Expert Guide to Licitation in Cannes: Strategies and Advice at the Grasse Court

Auction in Cannes represents a key legal procedure for the management and division of co-owned real estate, particularly required in cases of succession or separation. This process, governed by precise legal principles, requires rigorous mastery and preparation to navigate its complexities effectively. Here is a consolidation of essential advice, optimized around the keyword “Cannes solicitation” and associated with relevant long-tail expressions.

Understanding the Auction in Cannes

Auction in Cannes designates the legal process facilitating the cessation of joint ownership of real estate by its put up for sale by public auction. This solution is considered when the holders of shares in a common property cannot reach an agreement on its distribution, thus allowing a fair distribution of the proceeds of the sale in accordance with the rights of each co-owner.

Cannes Auction Process: Essential Steps

The route of the auction in Cannes is structured around strategic phases:

1. Launch of the Judicial Procedure:

Action initiated by one or more co-owners before the Cannes High Court, aimed at obtaining authorization to sell the property.

2. Real Estate Expertise:

Evaluation of the property by a licensed professional to determine its market value, essential for a fair and equitable sale.

3. Organization of the Auction:

The good is offered at auction public in Cannes, allowing the participation of potential buyers

4. Distribution of Funds:

The proceeds from the sale are distributed among the co-dividers, in accordance with their respective shares.

Preference for the Amicable Agreement in the Framework of the Auction in Cannes
Opting for an amicable agreement before initiating a auction in Cannes is strongly recommended. This approach can significantly reduce the costs and duration of the procedure, while promoting a beneficial resolution for all parties involved.

Fees Associated with the Liaison Procedure in Cannes

Auction in Cannes entails various costs, including the fees of lawyers specializing in auction in Cannes, legal costs, real estate valuation, and costs inherent to the auction. Adequate financial preparation is essential.

Importance of Legal Advice in Auction in Cannes
Support by a lawyer specializing in auction procedures in Cannes is crucial. An experienced professional provides strategic guidance, from preparation of the request to legal representation, thus guaranteeing effective defense of the client's rights.

Consultation with an Auction Expert in Cannes
In the event of a need for bidding in Cannes, the engagement of a specialized lawyer is essential. Our firm, recognized for its legal expertise real estate and auction procedures in Cannes, is at your disposal for a personalized consultation, allowing you to approach the process with confidence and competence.

The opportunity to participate in a real estate auction within the Grasse Judicial Court presents itself as a unique opportunity to acquire heritage, often at a preferential rate. However, the path to such acquisition is far from free of obstacles, especially for those unfamiliar with this process. Understanding risks and avoiding pitfalls is essential for anyone considering starting this business. Through the sagacity of a seasoned auction sales lawyer, here is an in-depth exploration of the pitfalls to avoid and sound recommendations for successful participation.

1. Ignorance of Legal Provisions

The Grasse Judicial Court establishes its own standards and protocols for real estate auctions. Not being aware of these particularities can lead to costly mistakes, such as the inability to engage in the auction or to complete the acquisition in the event of victory. It is imperative to be fully informed about the terms of the auctions, deadlines to be observed, and required documents to take part. Personalized assistance from a legal advisor can ensure that all legal formalities are strictly observed.

2 Undervaluation of Additional Costs

The real estate auctions in Grasse involve additional expenses that can significantly increase the overall cost of the acquisition. In addition to the purchase amount, buyers must consider lawyer fees, registration fees, notary fees, and possibly restoration costs. Neglecting these costs can result in an erroneous assessment of the profitability of the investment. Consulting a lawyer allows you to have a faithful estimate of these expenses and avoid unpleasant surprises. A calculator on Me Zakine's website can help you estimate these costs. This remains an estimate.

3. Omission of the visit to the Property

L'acquisition of real estate during an auction by the Judicial Court of Grasse is generally carried out “as is”, with no warranty regarding the condition of the property. Failing to carry out a careful examination of the property before the auction constitutes a notable peril. Hidden defects or structural concerns can turn an attractive offer into a considerable financial burden. A legal advisor can direct you to qualified building specialists to perform this inspection and evaluate the necessary renovations. Likewise, checking whether the property is occupied and by whom (children, elderly or working people) can indicate the difficulties you may have later.

 

4. Lack of awareness of settlement deadlines

Transactions at real estate auctions require strict adherence to payment deadlines after the auction. Failure to comply with these obligations may result in loss of the security deposit and invalidation of the sale. It is therefore essential to ensure the availability of the necessary funds before committing to the auction. An advisor specializing in auction sales can guide you towards the most suitable financial strategy to respect these constraints.

5. Lack of Strategic Preparation

Entering the auction arena without a defined strategy is a common but avoidable mistake. Setting in advance the price ceiling that you are willing to commit, understanding the real value of the property, and having in-depth knowledge of the local real estate market are essential steps to avoid impulsive bidding and bidding wars. The assistance of a lawyer can be invaluable in designing this strategy, providing an informed legal and financial perspective.

In the end, Two Tips for Successful Participation

Initial Consultation : Before any commitment, it is advisable to seek the advice of a lawyer specializing in real estate auctions to discuss your project. This approach will enlighten you on the specificities of the auction at the Grasse Judicial Court and will prepare you adequately.

Full Budget : Develop a budget including all costs associated with the acquisition. Your legal advisor will be able to assist you in estimating these expenses and ensuring that you are fully informed of the financial implications of your investment. Likewise, if you need to take out a loan, ask for an agreement in principle. We can assure you that it is never pleasant not to be able to pay on time.

Managing your co-ownership without a trustee, between article 47 and legal tips

On the sunny coast of the Côte d'Azur, life in a co-ownership takes on particular colors, with the trustee playing the role of captain ensuring the harmonious management of the building. But what happens when this essential guide is absent? Although this situation is rather rare under the Riviera sky, it can arise and open a chapter full of questions about management and legal obligations. Let us look at this scenario specific to the Côte d'Azur, exploring the implications of the absence of a trustee through the prism of article 47 of the law of July 10, 1965, the steps to appoint a new one, the crucial importance of having one by law, and the developments brought about by the Macron law, all sprinkled with that unique touch that only the Côte d'Azur can offer.

First of all, let us cite this section 47 Verbatim :

Article 47Version in force since July 4, 2020
Modified by Decree No. 2020-834 of July 2, 2020 – art. 39
In all cases, other than that provided for by the preceding article, where the union does not have a trustee, the president of the judicial court, ruling by order upon request, at the request of any interested party, appoints a provisional administrator of the co-ownership which is in particular responsible, within the deadlines set by the order, for obtaining the references of the union's bank accounts, the bank details and all of the union's documents and archives and for convening the meeting with a view to the appointment of a trustee under the conditions provided for in article 9.

The functions of this provisional administrator cease automatically upon acceptance of his mandate by the trustee designated by the general meeting.

In accordance with III of Article 53 of Decree No. 2020-834 of July 2, 2020, for trustees who have been exempted from the obligation to open a separate account in the name of the union by decision of the general assembly, these provisions come into force on December 31, 2020.

L'Article 47, a lifeline under the Côte d’Azur sun In the idyllic but complex setting of the Côte d'Azur co-ownership, Article 47 becomes a beacon in the night for co-owners disoriented by the absence of their trustee. It offers a clear procedure allowing any owner to request the appointment of a provisional trustee from the courts, thus ensuring that the co-ownership is never left adrift, guaranteeing continuous management of common areas and the protection of collective interests, all under the blue skies of the Côte d'Azur.

Launch a request: A step towards resolution under the Mediterranean sky The process of appointing a new trustee begins with a request, a necessary step for anyone wishing to get their Riviera co-ownership back on track. This legal step often takes place in the arena of the competent court, where a judge, after evaluation, inducts a temporary trustee. This measure, although provisional, allows a semblance of order to be reestablished until a general meeting can stand to choose a new guide.

An imperative under the sun: the presence of a trustee On the shores of the Mediterranean, the law makes no waves on this point: the presence of a trustee is not to be taken lightly. This golden rule ensures smooth navigation of the co-ownership, with a trustee at the helm to carry out the decisions of the assembly, watch over the finances, and take care of the maintenance of the common areas, essential for the well-being and proper functioning of any residential complex on the Riviera .

New horizon with the Macron Law The Macron law, like a fresh wind in the sails of the condominiums of the Côte d'Azur, has brought major reforms, also impacting the role of the trusteeIt has opened up new horizons by facilitating competition between trustees and strengthening the rights of co-owners, thus contributing to more transparent and accessible management for residences bathed in the Mediterranean sun.

Sailing without losing the North on the Côte d'Azur Being without a trustee on the Côte d'Azur could seem like an odyssey punctuated by uncertainties and management challenges. Fortunately, French legal texts and the nuances brought by the Macron law offer co-owners tools and clear paths to overcome these turbulent periods. Thus, armed with article 47 and legislative innovations, owners can stay the course, ensuring the serenity and sustainability of their Riviera haven, even in the temporary absence of a trustee.

The Distinction Between Summons and Request:

At the heart of the French judicial system, two main mechanisms make it possible to challenge the court: the summons and the request. These processes, although converging towards the same goal, are distinguished by their form, their use and the procedures they initiate.

The Assignment: The summons is presented as a highly formal legal act, designed by a lawyer and delivered by a ministerial officer, the bailiff. This document, established as a true pillar of contentious procedures, must imperatively articulate the subject of the request, exposing the facts and the legal foundations on which it is based. It initiates a contentious process where the plaintiff formally invites the defendant to appear before the courts, thus opening up a dialectical exchange of conclusions, the production of documents and sometimes an investigation phase prior to the judicial decision.

The request : As for the request, it is characterized by its relative simplicity compared to the summons. Written either by the party concerned or by their lawyer, it does not require the intervention of a bailiff for its delivery. The request must nevertheless clearly set out the subject of the request, the arguments supporting it and may be accompanied by supporting documents. His area of expertise includes non-contentious procedures or emergency requests, facilitating steps such as precautionary measures or accelerated procedures, without necessarily inducing a contradictory debate.

The summons thus proves to be the preferred tool in the context of conflicts requiring in-depth legal debate, while the motion is intended for situations requiring more direct and less confrontational judicial intervention. Each of these instruments plays an indispensable role in the navigation of twists and turns of French law, illustrating the complexity and richness of justice as a regulatory institution of human affairs.