Recovery notices and farm structure controls: when is the beneficiary’s situation assessed?

In principle, the recovery conditions are assessed on the effective date of the notice, including the farm structure control rules then applicable.

However, Article L. 411-58 of the French Rural and Maritime Fishing Code provides that, if recovery requires authorisation to farm, the rural lease tribunal may stay proceedings pending final authorisation. The lease is then automatically extended until the end of the farming year in which authorisation becomes final, and the recovery conditions are assessed on that date.

The difficulty arises from the two sets of proceedings: the ordinary court reviews the notice, while the administrative court reviews the prefect’s decisions. The administration assesses the situation on the date of its decision; the ordinary court uses the notice’s effective date.

Landlords served notice to recover land for their son, who farmed through an agricultural company (EARL), effective on 29 September 2015. The tenant challenged it. The Court of Appeal stayed proceedings pending the EARL’s challenge to a refusal of authorisation to farm, which the administrative courts ultimately upheld.

When proceedings resumed, the Court of Appeal nevertheless upheld the notice. It noted that the Agriculture Future Act of 13 October 2014 had added a fourth condition to the exceptional declaration regime, involving an area threshold set by the regional master plan. In Brittany, that threshold had only been set by an order of 28 June 2016. On the notice’s effective date, the fourth condition therefore did not apply and the beneficiary, who met the other three, fell under the declaration regime.

The Court of Cassation dismissed the tenant’s appeal. It held that, if it becomes apparent, even retrospectively, that recovery did not require authorisation on the notice’s effective date, a stay nevertheless ordered could not extend the lease and therefore could not postpone the date for assessing the recovery conditions.

The Court of Appeal was therefore right to assess the situation on the notice’s effective date. Its decision did not conflict with the binding effect of the administrative court’s decision, which did not concern the same subject matter or the same parties.

A refusal of authorisation to farm, even finally upheld by an administrative court, does not defeat recovery if no authorisation was actually required on the notice’s effective date. The ordinary court retains its own power to assess that issue.

For practitioners, the ruling requires close analysis of the law applicable on the notice’s effective date, particularly the actual entry into force of regional master plans and their thresholds. A tenant who obtains a stay should not assume that the lease has been extended: if recovery actually fell under the declaration regime, no extension will ever have arisen.