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Unsanitary housing

Rental of a dwelling: what rules determine that a dwelling can be made available?

Publié le 05 septembre 2024 - Directorate for Legal and Administrative Information (Prime Minister)

A decision of the Conseil d’État of 29 August 2024 annulled part of a decree of 29 July 2023 relating to the hygiene and sanitation rules for housing. The purpose of the decree was to harmonize previously locally defined rules, in particular to identify premises that can be rented or made available free of charge to live there. Among the elements of the decree that were overturned by the State Council is a provision on the height of the ceiling for housing.

The decree of 29 July 2023 laying down health and hygiene rules for residential premises and the like establishes that ‘premises with a ceiling height of less than 2.20 meters are unsuitable for housing’. These premises cannot be rented or made available free of charge to live in.

However, an exception has been added: ‘unless they comply with the provisions of Article 4 of the Decree of 30 January 2002 on the characteristics of decent housing’. According to Article 4, a dwelling may be considered decent with a ceiling height of between 1,80 meters and 2,20 meters, provided that the dwelling has a main room with a living space of at least 20 m³.

The decree of 29 July 2023 determines, at the national level, the sanitary rules of hygiene and sanitary housing. Until then, these rules were laid down in each department by Prefectural Regulations on Departmental Health Regulations (RSD). Each department had the opportunity to strengthen the standard, particularly in the light of local characteristics (climate, architecture, etc.); it was thus possible to determine a minimum level of ceiling height higher than that provided for in the legislation.

In some departmental health regulations, it was stated that "the ceiling height must comply with the regulatory requirements"; in this case, a dwelling with a ceiling height of between 1.80 m and 2.20 m and a main room with a living space of at least 20 m³ could be made available for housing purposes. In other RSDs, it was stated that the ceiling height should not be less than 2,20 meters. Other departmental health regulations provided for a minimum ceiling height of 2.30 meters or 2.50 meters, for example.

The Conseil d’État annulled certain provisions of the Decree of 29 July 2023, in particular that concerning the ceiling height. So the departmental health regulations apply on this subject, for the time being.

FYI

The mayors are responsible for the application of hygiene and health rules in the territory of their municipality. These rules prevent, solve and punish hygiene and health problems that may be faced by the inhabitants. The offenses are recorded in a report which is transmitted to the public prosecutor.

An order for unsanitary treatment may be issued by the prefect following a contradictory procedure. This decree has consequences for tenants or occupants (suspension of rent, rehousing...).

As of the notification of the order of unsanitary treatment, the vacant premises may not be rented, made available or occupied for any use whatsoever.

What other provisions have been annulled by the Council of State?

In its decision of 29 August 2024, the Conseil d’État (Council of State), inter alia, annulled provisions concerning:

the conditions governing the making available for housing purposes of a basement;
the conditions governing the making available for housing purposes of attic;
the minimum level of natural illumination to be provided in a dwelling.

Reminder

The decree of 29 July 2023 establishes, in particular, the elements that must be in a dwelling, including:

an electrical installation;
a natural or mechanical heat control system;
an air-renewal device;
a bathroom;
a toilet.

By way of derogation, in Mayotte, the bathroom and toilet of a dwelling may be located in another building, provided that the latter is easily accessible.

This part of the decree has not been annulled by the Council of State, so the whole of this provision continues to apply.

Please note

The Conseil d’État has not ruled on the substance of the provisions of the Decree of 29 July 2023. The court explains that it annuls those provisions because the latest version of those provisions (the version set out in the decree) was not submitted for consultation to the High Council for Public Health, contrary to what is provided for.

The decision of the Council of State thus states that: ‘the body whose legislative or regulatory provision provides for consultation before the intervention of a decision must be given the opportunity to express its opinion on all the questions raised by that decision. Consequently, where, after obtaining its opinion, the authority competent to take that decision envisages making amendments to its draft, it must consult that body again where those amendments raise new questions’.

The Conseil d’État then states that: ‘the amendments thus made to the rules governing the health of residential premises subsequent to the consultation of the Haut Conseil de la santé publique, which concern essential criteria in the light of the subject-matter of that regulation and the combination of which, in order to assess the health of premises intended for housing, is likely to make available for housing purposes premises buried in their entirety and with a ceiling height of 1.80 m, which was excluded by the draft decree submitted for consultation, must be regarded as posing, in the light of the subject-matter of that decree, a new question which required that body to be consulted again’.