The rental permit: and then what?

A Stupefying Discovery at the Moment of Signing

Picture the scene: you own a property, you have found a serious tenant, negotiated a lease according to the rules, made an appointment with the notary for this very evening to finalise the rental. Everything seems perfect. And then, a few hours before the signing, your notary calls you: "Sorry, I cannot draw up the lease. You do not have the rental authorisation issued by the town hall."

This is exactly what has just happened to me. After years of ownership, I discover with stupefaction that my municipality has decided to institute a prior authorisation to rent out one's own dwelling. Better still: this authorisation cannot be issued to me because the town hall requires additional diagnoses that the diagnosers, currently on holiday, cannot carry out. The result? Entry into the dwelling is postponed indefinitely, the tenant has to cancel all the appointments planned for D-day, and I, the owner, find myself hostage to a Kafkaesque bureaucracy. Nothing but happiness, as they say.

This personal misadventure pushed me to dig into that Ubuesque mechanism that is the "rental permit". What I discovered there defies belief and deserves that we dwell on it, from both a legal and a political point of view.

The Emergence of State Control over Private Property

The "rental permit" was not born out of nowhere. It is part of a logic of continuous extension of state control over the private sphere, particularly glaring in the real-estate domain. Based on articles L635-1 to L635-11 of the Construction and Housing Code, this mechanism allows mayors to institute, by a simple reasoned order, a mandatory prior authorisation for any letting.

Article L635-1 of the Construction and Housing Code thus states that "in municipalities where there is a marked imbalance between the supply and demand of housing, the mayor may, by a reasoned order taken after the opinion of the municipal council, delimit a perimeter within which the letting of a dwelling is subject to prior authorisation." In appearance, this measure seems targeted and exceptional. In fact, it is spreading at a worrying speed, transforming the exception into an ordinary rule.

This evolution perfectly illustrates the drift of local authorities which, encouraged by a permissive legal framework, neglect their essential missions to interfere in domains where their legitimacy and their effectiveness are more than doubtful. While our leaders invent new controls over private property, public safety deteriorates, justice bogs down, and national sovereignty crumbles. But apparently, monitoring who rents what to whom constitutes an absolute priority for our rulers.

The Legal Foundations of a Legitimate Challenge

Faced with this characterised infringement of fundamental rights, several avenues of challenge open up, all solidly anchored in our constitutional legal order.

The first and most obvious concerns the flagrant violation of the right of property as enshrined in article 17 of the Declaration of the Rights of Man and of the Citizen of 1789. This text, which has constitutional value, proclaims that "property being an inviolable and sacred right, no one may be deprived of it". Yet what does the rental permit do if not deprive the owner of one of the essential attributes of their right: the faculty to enjoy and dispose of their property? By subjecting the rental to administrative authorisation, the State de facto transforms the owner into a mere holder of a title subject to the good will of the municipal administration.

This restriction proves all the more contestable in that it violates the constitutional principle of proportionality. Article 8 of the Declaration of the Rights of Man requires that "the law must establish only penalties that are strictly and evidently necessary". The rental permit fails miserably this test. The officially invoked objectives — the fight against unworthy housing, the improvement of the quality of dwellings — already have a panoply of effective legal tools. The construction, planning and public-health codes are full of provisions allowing the punishment of slum landlords and unsanitary dwellings. Creating a system of general prior authorisation therefore constitutes a disproportionate measure that establishes a presumption of guilt for all owners.

The freedom to undertake, a principle of constitutional value enshrined by the decision of the Constitutional Council no. 81-132 DC of 16 January 1982, also finds itself mistreated. Property letting undeniably constitutes an economic activity. By hindering this activity through unjustified prior authorisations, the State infringes this fundamental freedom without sufficient justification.

Finally, the principle of equality before the law, guaranteed by the first article of the Declaration of the Rights of Man according to which "men are born and remain free and equal in rights", also undergoes the assaults of this mechanism. The rental permit creates an unjustified territorial discrimination between owners. Depending on whether your property is located in a municipality that has adopted this mechanism or not, you benefit or not from the elementary right to rent out your property. This disparity of treatment, based on arbitrary geographic criteria, constitutes a manifest breach of equality.

The Disastrous Legacy of Public Housing Policies

To understand the aberration that the rental permit represents, it is fitting to place it in the broader context of the patent failure of the public housing policies conducted for decades. The French State collects fiascos in this domain with a constancy that would force admiration if it did not cause so much damage.

Let us take first the example of the Energy Performance Diagnosis, that bureaucratic gasworks that terrorised owners and tenants for years. Instituted in 2006, the first EPD proved totally unusable, based on energy bills that were often non-existent or unrepresentative. No matter: rather than acknowledging the failure, the State persisted for fifteen years before carrying out a complete overhaul in 2021. But there again, the new algorithms proved defective, forcing serial corrections in 2022 and 2023. Result of these incessant gropings: thousands of owners taken hostage, forced to redo their diagnoses, and above all, a massive withdrawal of dwellings from the rental market in the face of the legal uncertainty created.

The example of MaPrimeRénov' perfectly illustrates this waste. With a budget of 5 billion euros for 2024, this mechanism was supposed to revolutionise energy renovation. The reality defies belief: according to the estimates of the Court of Auditors, 15 to 20% of the budget evaporates in various frauds. The famous "large-scale renovations", supposed to reach 200,000 dwellings per year, struggle to exceed a few thousand units. Worse still, this mechanism has created an artificial inflation of the prices of works, companies adapting their rates to the amounts of the available aid. In the end, the taxpayer pays twice: a first time through their taxes to finance this aid, a second time through the increase in prices that it generates.

These repeated failures are not accidents along the way but reveal a structural incompetence of the State to manage housing policy effectively. Faced with this reality, persisting in interventionism is a matter of pure ideological obstinacy, even of voluntary blindness.

The Culpable Complicity of the Constitutional Council

In this already dark picture, the passivity of the Constitutional Council adds a particularly worrying note. Contrary to what the effective protection of fundamental rights would require, the Wise Ones of the rue de Montpensier have never frontally struck down the mechanism of the rental permit. This shortcoming constitutes a serious failing of constitutional review, all the more disturbing in that it is part of a heavy trend of complacent validation of restrictions on economic freedoms.

Decision no. 2022-1018 QPC of 29 July 2022 illustrates this drift. By validating similar restrictions for short-term rentals, the Council opened the way to a generalised extension of these controls. This permissive case law encourages the State in its regulatory flight forward, reinforcing the idea that everything can be subjected to prior authorisation as soon as an objective of general interest, however vague, is invoked.

This attitude reveals an impoverished conception of fundamental rights, reduced to mere theoretical principles that the administration can chip away at will provided it invokes the magic formula of "the general interest". Yet fundamental rights are worth only through their effectiveness. A right of property subject to administrative good will is no longer a right but a mere revocable tolerance.

The Collective Responsibility of a Failing Political Class

Faced with this drift, the responsibility of the French political class appears crushing. But contrary to the conventional discourses that content themselves with criticising "the government", it must be noted that the complicity extends well beyond the presidential majority alone.

Admittedly, the latter bears the primary responsibility for these liberticidal measures. Emmanuel Macron and his successive governments have multiplied the mechanisms of control, framing and restriction of property rights, progressively transforming France into a laboratory of bureaucratic interventionism. From the ELAN law to the multiplication of zonings and authorisations, this majority has methodically whittled down the prerogatives of private owners.

But the traditional right also bears its share of responsibility. Through its soft criticisms or its complicit silence, it de facto endorses these infringements of the property rights that it claims to defend. How many Les Républicains deputies have really fought these mechanisms? How many have tabled bills to repeal them? The answer holds in few words: almost none. This soft opposition prefers to gesticulate on secondary subjects rather than defend the fundamental principles it claims to carry.

As for the left, it fully assumes its dirigiste tropism. Not content with supporting these measures, it demands their extension and hardening. For this part of the political chessboard, the private owner constitutes in essence a suspect who must be framed, controlled and monitored. This collectivist ideology, which sees in all private property an injustice to be corrected, finds in these mechanisms a privileged field of expression.

This façade unanimity in reality masks a deep consensus of the political class on the extension of the role of the State. Whether they claim to be of the right, the centre or the left, our elected officials share the same faith in the virtues of regulation and administrative control. This convergence explains why these liberticidal mechanisms cross political alternations without hindrance, each new power contenting itself with adding its own regulatory layer to the edifice.

The Abandonment of the True Missions of the State

This obsession with controlling the private sphere becomes all the more shocking in that it is accompanied by a manifest abandonment of the true sovereign missions of the State. While the municipal services toil to verify whether such an owner has indeed requested the authorisation to rent out their dwelling, the real problems pile up.

Public safety deteriorates day after day. Delinquency statistics soar, lawless zones multiply, and the forces of order, under-equipped and demoralised, struggle to ensure their fundamental mission. But rather than concentrating resources on these crucial stakes, the State prefers to create new bureaucracies to monitor private owners.

French justice bogs down in record processing times, the courts collapse under pending cases, and litigants sometimes wait years before obtaining a decision. At the same time, the administration mobilises time and resources to examine applications for rental authorisation whose social usefulness remains to be demonstrated.

National defence, the bedrock of sovereignty, suffers from chronic under-financing. Equipment ages, numbers dwindle, and our projection capacity diminishes. But no matter: the urgency apparently consists in ensuring that each rental respects the new bureaucratic criteria invented by our technocrats.

This inversion of priorities reveals a tragic loss of meaning of public action. The French State seems to have forgotten its reason for being in order to transform itself into a vast machine for producing norms and control. This drift is not only ineffective; it is profoundly dangerous for our liberties and our democracy.

The Avenues of Legal Resistance

Faced with this situation, resignation is not appropriate. Several avenues of challenge are available to owners concerned to defend their rights, all perfectly legal and legitimate.

The urgent-freedom procedure (référé-liberté), provided by article L521-2 of the Code of Administrative Justice, constitutes the fastest weapon to halt a serious and manifestly illegal infringement of a fundamental freedom. The conditions of application seem met: the urgency characterised by the impossibility of renting out one's property, the serious infringement of the right of property, and the manifestly illegal character of a disproportionate restriction of fundamental rights. This procedure allows the suspension of the municipal order to be obtained within very short deadlines, generally a few days.

The appeal for misuse of power offers a more thorough substantive challenge. The grounds are not lacking: incompetence of the municipal authority to thus restrict the right of property, formal defect in the adoption of the order, lack of sufficient motivation, violation of the law through disregard of constitutional principles, error of law on the scope of municipal powers, or even misuse of power if the authorisation in reality serves ends other than those officially announced.

The Priority Preliminary Ruling on Constitutionality (QPC), provided by article 61-1 of the Constitution, represents the most powerful tool to call into question the mechanism as a whole. By contesting the constitutionality of articles L635-1 et seq. of the Construction and Housing Code, it becomes possible to have the entire system annulled by the Constitutional Council. The grounds of unconstitutionality abound: disproportionate infringement of the right of property, violation of the principle of proportionality, disregard of the freedom to undertake, and breach of equality before the law.

These appeals, to be effective, must be part of a coordinated strategy. Multiplying the challenges, systematically documenting the harmful effects of the mechanism on the rental supply, and creating favourable case law constitute so many objectives to be pursued simultaneously.

Towards a Reappropriation of Fundamental Rights

The rental permit constitutes only the emerged part of a much more imposing iceberg: the insidious transformation of France into an administrative police state. This evolution does not proceed from a great assumed authoritarian design, but results from an accumulation of small acts of cowardice, of successive renunciations, and of a collective resignation in the face of the extension of state control.

Each new regulation, each additional authorisation, each unprecedented form contributes to this silent erosion of our liberties. Taken in isolation, these mechanisms may seem harmless or even justified. Considered as a whole, they draw the portrait of a society of distrust where the State suspects its citizens on principle and where liberty becomes the exception rather than the rule.

This drift is neither fatal nor irreversible, but it demands a collective awareness and a firm reaction. Owners can no longer accept being the adjustment variables of a failing public policy. They can no longer tolerate being transformed into scapegoats of a system that accumulates failures while extending its grip.

The time is no longer for soft compromises or protests of pure form. It is for organised legal resistance, for the systematic challenge of infringements of fundamental rights, and for the patient but determined reconquest of our confiscated liberties. For beyond the right of property alone, it is the very idea of individual liberty that is at stake in this legal and political battle.

My personal experience with this rental permit, however frustrating it may be, will at least have served me as a revealer. It made me measure the extent of the path travelled towards the total State and the urgency there is to reverse this trend. May it inspire other owners no longer to endure but to act, no longer to resign themselves but to resist. For it is together, through the mobilisation of law and democracy, that we will be able to push back this invasive bureaucracy and rediscover the taste of liberty.