Article 63-1 of the Departmental Health Regulations states that the air extraction must be placed at least 8 m from all windows or air intakes except layout.
The rule is simple but often complex to put into practice, especially in the city.
A turret must be installed so that the air extraction is above the roofs.
Who should pay? What the law says
The Gordian Knot is who should pay for the mining turret: The Lessor or the Tenant?
In application of article 606 of the civil code, the lessor is responsible for major repairs and is obliged to donate property in accordance with its destination (1719 of the civil code).
As a result, the lessor is responsible for setting up the turret. In fact, the turret, which generally involves drilling holes in the common areas of the building to fix the fasteners and which corresponds to a major modification of the ventilation system, is a major repair.
This makes sense in that the lessor will benefit In fine of the economic improvement of its fund.
In addition, since the existence of an air extraction is mandatory, there is no doubt that the lessor must provide a catering room with air extraction.
However, the case is often more complicated than that.
It is rare to sign a commercial lease, in practice you inherit the lease that comes with the business you acquire.
The commercial lease
However, commercial lease clauses can defeat article 606. Like most articles of the Civil Code, article 606 is said to be voluntary, in other words, it only applies in the absence of a clause to the contrary.
It is therefore necessary to check in the commercial lease that there is no express clause modifying the distribution of work.
You must be particularly vigilant with the so-called “taking the property as it is” clauses. The tenant generally declares to be fully informed of the condition of the property. As a result, he agrees to take the property “as is” and renounces asking the lessor for improvements. Such a clause causes the burden of air extraction to shift onto the lessee.
It is therefore appropriate to carefully read this type of clause in order to analyze the possible risk.
What to do in case of conflict?
It is possible for the tenant, if the burden of extracting the air falls on the lessor, to act. He can carry out the work and deduct it from the rent. This is the application of the principle of the exception of non-performance. Obviously this is risky and should be implemented very carefully.
Alternatively, a court application for a conviction under penalty of the lessor to install the air extraction system is possible. It is the path of wisdom.
If the lease specifies that the cost is the responsibility of the lessee, unfortunately there are not many possible options. However, recent regulations have added numerous obligations concerning land use planning (such as accessibility standards). The cost of this work is generally borne by the lessor. They are not covered by the take-over clause (because their regulatory origin is subsequent to the clause). These elements can make it possible to open a more general negotiation with the lessor.
How to implement the work?
Finally, like all work, it is necessary to obtain an authorization from the condominium and the lessor and to make a declaration at the town hall. Attention, if the building is classified or in a protected area, specific requests may be necessary.
If you have a problem with your landlord, contact us!
