What are the rights and obligations linked to free accommodation for a loved one? Social assistance, taxation, insurance: here are the points to know.
Host for free a family member, friend or any other person is a common situation. Whether it is an adult child who returns to live with their parents, a loved one going through a difficult period or a friend waiting for accommodation, this approach is perfectly authorized by French law. However, this situation may have legal, fiscal, administrative and social consequences which it is preferable to anticipate in order to avoid any subsequent difficulties.
Owners and tenants: who can host for free?
THE principle of free accommodation is based on great legal flexibility. Indeed, no text prohibits a person from making all or part of their accommodation available to a third party free of charge. This possibility exists for both an owner and a tenant, provided that certain rules are respected.
Host side
When he is the owner, the host has great freedom in the use of his property. He can accommodate a person free of charge in their main residenceby sharing his accommodation with her, or allowing him to occupy a secondary residence alone. There The law does not set any maximum duration for this accommodation. This can be temporary, for example the time to carry out work in another home or to go through a difficult period, but it can also be long-term when both parties agree.
Tenant side
Tenants also benefit from a certain freedom. In principle, they can receive and accommodate members of their family, friends or any other person without having to request prior authorization from the owner. THE lease cannot prohibit the tenant from accommodating relatives or any other person of his choice.
However, this accommodation must not conceal a sublet. As soon as financial compensation is requested from the occupant, the situation can be reclassified as subletting, which requires the prior written consent of the lessor. Failing this, the tenant incurs the termination of the lease.
Housing must also respect the rules relating to decency and overoccupancy, which notably impose a minimum habitable surface area per occupant. © Magnific
Free: an essential condition
L’free accommodation can take the form of simple cohabitation at the host’s home or result from a loan for use, by which a person makes all or part of a home available to a third party free of charge.
This accommodation, by nature free, does not therefore constitute a residential lease. In other words, no regular financial compensation should be requested from the accommodated person. The absence of rent constitutes the fundamental element of thefree accommodation. An occasional contribution to current household expenses, such as water, electricity or food, is generally not considered as rent.
On the other hand, the regular payment of a sum, even modest, intended to remunerate the occupation of the accommodation may lead the administration or the courts to reclassify the situation as a rental contract. This reclassification then leads to the application of all the protective rules of rental law.
The benefit of the agreement in writing
Even if no written contract is required by law, drawing up a contract remains strongly recommended, particularly when the accommodation is expected to last or when the accommodated person occupies the accommodation alone. This writing may mention the identity of the parties, the address of the accommodation concerned, the expected duration of occupation, the terms of departure as well as the possible obligations of each. Beyond its legal interest, this document also facilitates numerous administrative procedures.
When the accommodated person occupies a second home alone, drawing up a contract seems particularly recommended. This makes it possible to clearly set the duration of occupation, the conditions of use of the accommodation as well as the obligations of each person (insurance, maintenance, possible contribution to current charges, ban on carrying out certain work, etc.).
Declarations, taxation and social assistance: procedures and consequences
What steps should you take with the tax administration?
Contrary to popular belief, theFree hosting is not completely administratively neutral. The accommodated person must report their situation to the tax authorities, indicating that they are “free occupant” when filing their income tax return. For their part, the host has no income to declare since they do not receive any rent.
However, owners must declare to the tax administration the conditions of occupation of each of their properties – main residence, secondary residence, vacant accommodation or occupied by a third party –, including when they put free accommodation available to another person.
What impact on social assistance?
If the person who hosts receives aid from the Family Allowance Fund (CAF), in particular Personalized Housing Assistance (APL), you should be vigilant beforehost a person for free. Indeed, when this situation continues beyond six months, the CAF can consider that the composition of the household has evolved and take into account the resources of the person accommodated in the calculation of certain benefits. Depending on the level of this income, rights to housing assistance, the activity bonus or other social benefits may be reduced or even eliminated.
For its part, the person accommodated for free cannot claim housing assistance since it does not bear any rent charges. It is therefore recommended to quickly declare this situation to the CAF as well as to the social landlord, if applicable, in order to avoid any subsequent regularization, request for reimbursement or questioning of certain rights.
Hosting a parent: a possible tax advantage
The tax regulations provide that “taxpayers can deduct from their overall income a sum representative of the benefits in kind that they grant, in the absence of a maintenance obligation, to people aged over 75 who live under their roof and whose taxable income does not exceed the resources ceiling“(2° ter of II of article 156 of the General Tax Code).
The deduction is, however, only possible if all the conditions provided for by the tax law are met and the host is able to justify his right to this deduction to the administration.
Insurance, supporting documents: points to watch out for
The accommodation certificate: an essential document
L’accommodation certificate is often the first step to take. Written and signed by the host, it allows the hosted person to prove their domicile to numerous organizations – bank, CAF, etc. If a loan contract has been concluded between the two parties, certification is normally not necessary.
The certificate must in particular specify the full identity of the host and the person accommodated, the address of the place of accommodation as well as the start date of the accommodation. Please note, this is indeed a declaration on the honor of the host attesting that he welcomes the person accommodated at his home or in another place of which he is the owner or tenant.
Home insurance: who should be covered?
The issue of insurance should not be overlooked. When accommodation takes place in the host’s main residence, the latter’s home insurance contract often covers the occupants of the home. However, guarantees vary from one insurer to another. Thus, the hosted person is covered by the contract of the host with whom they share the accommodation – provided that he himself is insured. It is therefore advisable to declare the presence of the accommodated person to their insurer.
When the accommodated person occupies the accommodation alonein particular a second home loaned by its owner, it is strongly recommended that it takes out home insurance including civil liability guarantee.
How to end free hosting?
When there is a good understanding between the parties, the end of accommodation generally goes smoothly. On the other hand, in the event of disagreement, it is preferable to have anticipated the departure conditions from the start of the occupation. For this reason, the drafting of a written contract specifying the terms of accommodation – duration, termination conditions, notice period, etc. – is highly recommended. This document helps limit the risk of conflict and clarifies the rights and obligations of everyone.
It is recommended to formalize the accommodation with a written contract specifying its duration, the terms of termination or the notice period. Enough to secure the relationship and avoid misunderstandings by clearly setting out the rights and obligations of each person. © Magnific
Even in the absence of a contract, the host cannot demand immediate departure. A reasonable period of time must be given to the occupant to allow them to find another accommodation solution. In the event of a dispute, the courts assess this period according to the circumstances, in particular the duration of the accommodation and the personal situation of the person accommodated.
Let us recall that the accommodated person must return the accommodation in the state in which it was given to themsubject to normal wear and tear related to its occupation. It also remains responsible for any damage it could cause to housing.
