Residhotel fail to pay

anybody else out there with apartment in mas des arenes mouries ? we have received no payment as of today. due only since dec 08

Seamus

When did you receive your payment for the 24/3 - 31/3? As it stands (i.e. most owners have not received this payment) RH are in breach of the administration agreement as they are not allowed to pick and choose which owners are paid and which not. It is for the administrators to decide if properties are profitable or not and to determine whether to cancel leases but all rents due must be paid as and when they become payable until leases are cancelled or renegociated.

Yes payment is normally direct to my account so I'll keep an eye on it

Result! Just been onto our online banking and we have been paid today!! I am said in my post earlier, for those that are being paid ahead this makes sense ... perhaps RH are reading the forum!! Funnily enough though we were paid for 3 months and no more so I guess the week at the end of March is still floating out there ... or perhaps that across the board is what will keep them afloat!

I have just checked our banking on line and we have not received any rent yet. We own a property in Mas Des Arenes, Mouries and have received no rent what so ever yet. Is anyone else in the same boat.

Hi, I have received my rent today for my apartment at Isola2000 - this rent is for the period 24-31 March.

Thanks

Nick

Yes we received our 1 week (24/3 - 31/3) on Wednesday

It is good news to hear that RH are paying the last week of March, as expected.

All co-owners should consider taking the following two steps of action, namely:

1. Asking the company's Receiver whether
he wishes to continue their lease. Such an option is possible
pursuant to article 37 of the Insolvency Act 1985. If the Receiver
replies favourably, or fails to respond within one month, the lease
gets automatically cancelled. This however also means that owners are
exposed to the risk of having to repay French tax authorities the VAT
rebate they benefited from when they bought their leaseback property,
so it not necessarily a good option, except for those that absolutely with to break ties with Residhotel and do not mind repaying back the VAT.

2. Lodging their claim in the Receivership. Pursuant to the Insolvency Act 26 July 2005 and Article L622-17 of
the Code de Commerce, debts arising after the date a French company is
put into Receivership must be paid by the company's Receiver. However,
those debts e.g. rents that arose prior to the leaseback company
becoming insolvent must be lodged in the insolvency proceedings. This
is a necessary step in order for the Court to admit claims and consider
you as a (usually non-preferential) creditor in the Receivership. See an article on the subject: http://www.hg.org/article.asp?id=6194

Failure to lodge one's claim in Receivership or the 'Sauvegarde' proceedings leads to claims being irrevocably lost! Beware...

For your information, the following details & documents are required to carrry out the above:

- Copy lease agreement and, if possible, your Title Deeds ('Acte de
vente') or the 'Attestation' the Notary issued just after completion of
your purchase;
- Copy 'Commandement de Payer' (formal payment request served by bailiff) where applicable;

- How much rent remains due, e.g. for the last quarter of 2008 + the first quarter of 2009;

- Your rent may have increased pursuant to the
revision clause stated in your lease agreement if the latter has
reached its 3rd anniversary date. If that is the case and you did not
ask
Residhotel to apply the increased rent, the chances are that the
company has kept paying you the rent initially agreed. To calculate
your revised rent and include the same in your claim, one needs to
know when, exactly, your lease took effect;

Please note that you can in principle also claim interest at 3 times the legal rate.

I hope this is informative.

Fabien Cordiez
http://www.solicitor.fr/leasebacks.html

Fabien

It is good we have received the one week owed, however, what concerns me more is we were due our 2nd quarters rent on 15/4/09 which we have not received. Surely this is another breach of the safeguard procedure. Have you any thoughts on this and feelings as to when we may receive the payment?

I agree this is a breach of the safeguard procedures. I understand that Residhotel will be paying this towards the end of this month. If they don't, I will be happy to write to RH's Receiver and the Juge Commissaire, on behalf of those who have instructed me to file their claim, to insist that payment should be made forthwith, failing which one could issue an Application to the Cannes Court for RH to simply be liquidated.

http://www.solicitor.fr

Is it normal that we have not received the receipt for payment of the rent yet? Our lease is "payable le 15 avril" so were they not to pay the entire trimester (January, Feb, and March)on April 15? All of the others in our residence received one week. And so that makes what is due 6 months minus one week plau the charges for ART.

Hi all.
I am an owner at the residence Les Valmonts de Val Cenis. It is leased to ResidHotel, and managed by Rhode Tourisme (same address as RH).
We have not yet received rent this year. Our owners have formed an association through which we are hoping to present a united front, and maybe have the power to change management company to retain residence de tourisme status.

I am concerned that so many of you have received rent from the administrators, and we haven't - could ours be one of the unprofitable sites?

We are in the process of declaring our creditor status to the administrator, and the association is recommending we all write to the promoters ICADE.

Anyone know anymore from other residences?

Glad to have this forum.
Kazz

Kazz,

I take it that all owners who were invited to that meeting in Nice (mentioned elsewhere in the forum) were considered to own properties deemed problematic from Resid'Hotel's perspective? Were you invited to that meeting?

It is indeed not clear which properties are deemed to be problematic at this point in time.

Regards,Emphyteusis

Thanks for the reply Emphyteusis,
Yes we were invited to that meeting. We were told it was cancelled due to lack of interest.

We are also in that position annoyed - I checked and our October payment was not paid until November but that was for Oct Nov and Dec ... so like you we are due to be paid this quarter NOW ... where do we stand if RH are obviously in breach of paying when they are under the receivers?

Over the past few days, Residhotel began paying leaseback owners a small amount which does not add up with the usual quarterly rental payments, e.g. where one's quarterly rent is say €2,500, Residhotel's payment only amounts to €217.39.

Please note that such payment is, in most cases, in respect of the last week of March.

Q. Why the last week of March?

A. Because under French insolvency law, the company must immediately pay
all debts arising after the insovency proceedings began. Given that Residhotel was put into Sauvegarde' by the Cannes Court on 24 March, the rent owed from 24 to 31 March becomes due this month.

Payments recently made to leaseback owners simply demonstrates that
Residhotel's Receiver will comply with French law (this is the least one would expect), albeit with some delay!

The next quarterly rent should be paid normally, unless of course the company is liquidated.

The rent that they have paid me seems to be for 7 days at last year's rate. Dividing the amount paid by 7 days and multiplying by 90 days gives the exact quarterly rate for 2008. Therefore, they have paid us for the period from 25 (not 24) to 31 March, and without the increase that was due to be paid from 1 January 2009.

The rent increase that applies over the last 7 days of March cannot be included when filing your claim in the Receivership proceedings (the 'Declaration de creance'). Owners should write to the Receiver however and notify him of the rent increase.

For the period up to 24 march 2009, the extra rent that results from the increase of the index, which Residhotel should normally have paid, is to be included in your Declaration de creance claim.

I hope this makes sense!

We were paid one weeks rent a couple of days ago. Then we were told we would get this quarter's rent in the next few days. This morning one month's rent has been paid into our account. Any ideas why this is only one month's, and not the full quarter?

I assume you are normally paid three months in advance. Could it be that the receivers are now going to pay the rent monthly rather than 3-monthly?

First I got a bank transfer to my Irish bank account for the weeks rent. Although they had originally said that they only do transfer if you have a french bank account. Then two days ago I got a cheque for one day i.e. 24th of March (hardly worth cashing by the time I pay the bank charge!!)

If you check the french blog site it sets out clearly the residences that are transferring to Village management company

Cath

Sorry should have said transferring to Quietude management company

Cath

Yet another injustice from this affair landed on my doormat this morning... I've just received a demand from my French accountant for advanced payment of the VAT on rent due in 2009 (that's 5.5% of the rent for the entire year). Since I've so far only had one week of 2009 rent from RH, this means I've now got to pay VAT on the unpaid rent - that is, on rent that RH may pay me over the next 10 years (or may possibly be lost forever, if RH are liquidated).

Just thought I'd warn you, as I assume everyone else will get a similar demand from their accountants.

CliveUK,

That is interesting. I doubt (although I'm not an expert on this field) that one can force payment of VAT on rent not received? Perhaps cordiez may have an opinion on this matter?

Regards, Emphyteusis

I imagine I will eventually get back the VAT on unpaid rent, probably as some sort of tax credit, but for the moment still have to pay the VAT in advance on the theoretical rent for the year. It just seems unfair - we should be able to pay this in arrears, as for income tax in France. However, I don't know whether this demand is simply because my accountant is calling for funds particularly early.

No, I have not seen that expression in the document and I have already paid the VAT for 2008. I am referring to an amount in an "appel de fonds" for 2009 (but based on the 2008 rent figures). I think my accountant is already collecting a reserve of funds for the 2009 VAT bill. I assumed this is normal and that everyone else's accountant will do the same.

The explanation could lie with the fact that, under an accounting viewpoint, you are subject to the 'régime réel simplifié
d'imposition (RSI)'.

The RSI regime involves 4 (quarterly) interim payments during the year and a VAT return the 'CA12/CA12Es' form is then filed at the end of the tax year.

The quarterly payments are based on the VAT you paid last year.

Have just heard that Resid are gone into receivership.

We have found a bilingual French lawyer that is currently issuing some 'commandment' requests on Rhode Tourisme. His name is Fabian Cordiez. This is the first step in recovering unpaid rents. Setting up owners comitees is a good idea, but the process will take time. As for serving a mere 'mise en demeure', this is a waste of time since this hardly has any legal value. Remember, your lease states that you should serve a 'commandement' first.

I act for several leaseback owners who did not receive
their quarterly rent from Residhotel.

I wish to draw owners' attention to the fact that mailing a mere 'mise en demeure' letter to the leaseback company, by registered mail, is not the appropriate procedure here.

All owners that did not receive their rent should, in a first stage,
serve a formal payment request called 'commandement de payer' upon the leaseback
company, as required under their lease agreement.

I am currently co-ordinating service of such
requests through a local bailiff. Other property owners that are facing the same
problem with Residhotel are welcome to join forces.

Here is a link where further details can be found on this forum: http://www.frenchleaseback.net/lease.asp?Action=Call&pag e=problems

http://www.solicitor.fr
cordiez39856.7028125

No first you have to send the "mise en demeure" and after a lawer do a "commandement de payer" or "injonction de payer". But Residhotel answer to us that they can't pay now. See letter on ou blog http://residhotel.over-blog.com/

But be carreful with the "clause résolutoire". Very specific law in France.

Very important, please contact us to join french's owners.

I disagree on the "mise en demeure" point.

As
a licensed French Lawyer, I confirm that the appropriate procedure
involves having a 'commandement de payer' served, pursuant to Article 25 of the Decree of 30 March 1953 'Art. 25. -
Toute clause insérée dans le bail prévoyant la résiliation de plein ne produit
effet qu'un mois après un commandement demeuré infructueux. Le commandement
doit, à peine de nullité, mentionner ce délai'.

The need to serve a proper 'commandement', as opposed to a 'mise en demeure' letter, is also confirmed in each lease agreement.

If Resid'Hotel fail to pay the outstanding
rent and the bailiff's service costs within one month, leaseback owners can, in
principle, cancel their lease. This is optional however: The main effect
of a 'commandement' is to force the leaseback company to settle the
outstanding rent.

Fabien

If you issue a commandement de payer and the management company pays within one month can you use this incident to not renew the lease at the end of nine years and avoid paying compensation?

If you issue a commandement de payer and the management company does not pay
within one month, and if you subsequently experience further delays in getting the rent paid, you could invoke this incident to not renew the lease at
the end of nine years.

Furthermore, the leaseback company should not be granted compensation, because non-renewal of the lease is justified by the fact that the tenant has repeatedly breached the contract. This, at French law, is considered as a 'motif gave et legitime' (Cour de cassation, 3e chambre civ., 29 juin 2005).

http://www.solicitor.fr

Hi Fabien,

You say that Leaseholders can in prnciple rescind their lease if the Operator does not pay the rent following the serving of a commandement de payer or une injonction de payer. I have invoked both of these procedures as well as two mises en demeure and am still awaiting payment. RHODE TOURISME or RESIDHOTEL have until 18 March to do so. I have paid the huissier de justice and the Greffe so do I send a letter informing RHODE TOURISME of my intention to take repossession of my apartment if I do not get paid? Some people say you have to get an avocat to summon RHODE TOURISME to court before being able to break the lease definitively. I am so confused. Pourtant Je parle couramment le francais et relance les autorités francaises souvent a cet égard. Merci de votre réponse Fabien.

Cordialement,
Frank Farrel - Dublin

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The lease does not get automatically broken by
Resid'hotel (RH) going into Receivership. One of the effects of RH possibly
being placed in Receivership is that leaseback owners will no longer be
entitled to cancel their leases for non-payment of rents that were due before
Receivership. Those owners that did not have a commandement served beforehand
will therefore have to continue renting their property to RH, and possibly
accept a CVA i.e. payment terms or even writing off their claims, if the
company does go into Receivership, unless of course the Receiver decides to
simply cancel all leases, as allowed under French
Insolvency law, and liquidate the company. If RH continue defaulting on the
rent after the company is placed into Receivership, leaseback owners can
issue a commandement and attempt to break their lease. For cancellation to be
effective before RH goes into Receivership, a 'commandement' should first be
served. If RH do not pay the outstanding rent and bailiff's fees within 30
days, each owner is to send a formal cancellation letter to RH by registered
mail. The deadline for sending such a cancellation letter is 15 days from the
end of the 30 days period. This still leaves a number of grey areas however,
because of the following:

1. Some leases are poorly drafted and do not state
that cancellation can be made through sending a simple cancellation letter,
which suggests that the lease is immediately cancelled after 30 days. On the
other hand, RH may argue that, given that the lease is silent on the subject,
leaseback owners should ask the Court to confirm cancellation. This would
require an Application to be filed. In that case, for
cancellation to be effective, the Order from the Court would have to be issued
before the date RH goes into Receivership. Furthermore, the Court's Order
confirming cancellation would need to be final, i.e. no appeal possible, prior
to the date RH is placed in Receivership;

2. Even though most lease agreements with RH state
that a simple cancellation letter will suffice, there is a risk RH may ask the
Court for further time to settle their debts.

------------------------------------------------------------ -----------------------------------

So, serving a 'commandement de payer' through a bailiff is
the first step towards being able to recover rent and/or cancelling a lease. Should
RH be placed into Receivership, one could no longer cancel his or her lease for
non-payment of rents that have accrued prior to the Judgment placing RH into
Receivership. It also becomes impossible to enforce payment of outstanding
rents.

Although the lease is in principle cancelled if RH do not pay the outstanding
rent within one month from service of a 'commandement' and you subsequently
send a cancellation letter within 15 days, RH could ask the Court for more time
to pay, pursuant to article 1244 of the Civil Code. This would obviously also
delay cancellation of your lease.

In addition, irrespective of what your lease states about cancellation being
effective once you send the cancellation letter following the one month period,
cancellation of the lease should in principle be confirmed by a Court Order. If
RH are placed into Receivership before the Court Order confirming
cancellation of your lease becomes final (the time-limit to appeal such Order
being one month from the date the Order has been served on RH), then
cancellation is not effective. This derives from Article L141-45 of the Code de
Commerce. The Court can only confirm that your lease has been cancelled, but
there is ample case law showing that such an approval by the Court still is
necessary.

In my email of yesterday, I mentioned a possible 'grey area' on that subject,
because not all RH's leases are drafted in the same way. This
will require further investigation in due course. To make matters worse,
Residhotel's leases indicate that to force RH's eviction, a separate application is to be filed with the Court in that respect. For
the time being, I can advise that it would be unwise to change locks just after
having sent the letter terminating the contract.

As you can see, the process of getting rid of RH is far from being simple and
serving a commandement is merely the usual, necessary first step towards this.

If RH do get put into Receivership, another much simpler option exists for all
owners to cancel their leases. This stems from Article 37
of the Insolvency Law of 1985, which allows landlords to send a formal request
to the company's Receiver, by registered mail (not a commandement - no
bailiff's fees), seeking a confirmation as to whether their lease will be
continued. If the Receiver fails to reply within one month, your lease gets
automatically cancelled and the process of getting the cancellation confirmed
is a lot simpler than the procedure I have described above.

cordiez39887.8961226852

New owners comitees for cap bleu:

ASSOCIATION DE DEFENSE DES INTERETS DES COPROPRIETAIRES DE LA RESIDENCE DE TOURISME CAP BLEU

ADIC RT CAP BLEU
6 rue Mahatma Gandhi
Espace Beauvalle Hall C
13090 AIX en PROVENCE

We sent a "Mise en Demeure" letter on the 20th February by registered post and still have not received any rent nor have we received any acknowledgement of it arriving.

I have had a 'commandement de payer' served officially on RHODE TOURISME and 'Une injonction de payer' and I have still not been paid by these toe rags. French law is too loose and laissez-faire. My experiences of compulsion orders and injunctions has been very luke warm indeed. If a leaseback goes bad it generally stays bad until the operator has been replaced.

Frank Farrell

Hi,

VERY IMPORTANT RESIDHOTEL

WE ARE LOOKING FOR OWNERS OF RESIDHOTEL'LEASEBACK.

PLEASE CONTACT US

http://residhotel.over-blog.com/

Sorry my blog is in French but we are searching for owners of Cap Bleu (Carro), Splendid (Allevard), Notre Dame de Bellecombe, Edelweiss (2 Alpes), Divonne, Isola 2000, ....

Please send me your email and your residence

We are making owners associations. There are links to help you find the others owners.

Please talk in others forums of this blog. Very important

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On 24 March 2009 the Cannes Court placed Residhotel into Receivership. Letters are being sent by the Receiver to all leaseback owners confirming the same.

An initial 6 months observation period has been set, during which the Receiver
will (hopefully) receive bids from other management companies. The company's Receiver may
suggest to the Court that the business be taken over by another leaseback
company, or could ask the Court to approve a company voluntary arrangements
know in English legal jargon as 'CVA'. In such a case payment of outstanding
rents could be spread by the Court over several years. The company could also
be liquidated of course.

During the observation period, The Receiver can break the leases of the weaker
residences and not allow owners of the other, more profitable resorts, to break
their leases.

Leaseback owners can attempt to cancel their leases pursuant to Article 37 of
the Insolvency Act 1985. There obvioulsy are tax (VAT) implications here.
Professional legal advice should always be sought before deciding on whether to
try to cancel the lease.

In any event, all leaseback owners whose rent remains unpaid, or who received
payment of their rent but not the bailiff's fees following service of a
'commandement de payer', should file their claim with the Mandataire in order to be admitted by the Cannes
Court as (non-preferential) Creditors in the Receivership.
This is called 'Declaration de creance '. The time-limit
for filing claims is two months from the date the Receivership
Order is published. Such time limit is extended to 4 months for overseas-based
creditors. Filing a 'Declaration de Creance' can be done direct, without having
to instruct a solicitor. Template documents (written in French) will probably
be circulated soon, for DIY use. Filing claims in French insolvency proceedings
is technical and I recommend doing this through a qualified French solicitor. These, in French, are called 'Avocats'.
http://www.solicitor.fr/leasebacks.html

cordiez39916.4454050926

Can you please tell me whether ResidHotel (or the receivers) are obliged to pay rent that became due after 24th March. The letter that I have seen (on the web) from ResidHotel, and signed by Mr Mulko (the president), states:

"...toutes les dettes nouvelles, nées de la poursuite de l'activité et des baux commerciaux après la date du jugement d'ouverture, seront reglées à leur échéance contractuelle, comme la loi l'exige."

which I have translated into English as:

"...all new debt, arising from the pursuit of business and commercial leases after the judgement date, will be paid on their contractual due date, as the law demands."

This suggests that they will pay rents during their 6-month observation period. However, I have read in an article elsewhere that the receivers can choose not to pay rent to any owners during this period.

Either way, if they don't pay the rent during this period (and they haven't so far), what can we do? When will we get this rent?

Residhotel will pay rent on first july for the second quarter (april, may, june) and probably on first october for the third quarter.

Then, the "judicial administrator" will decide if this society can continue or if it's insolvent. You can find a better translation of this letter:

residhotel.over-blog.com

and a blog for cap bleu:

http://cap-bleu.over-blog.net/

Sorry for my english.

I am no financial expert but if we are to register debts up to the 24th March and it is assumed that under the administrators they will pay the April May and June quarter on 1st July, there is actually a week out there that is not accounted for. It does not count for much but across all their owners and residences, that is substantial. Any financial gurus?

I think there is some ambiguity here about debts that date from before and after 24th March...

We would normally be paid in July for April/May/June - if they do pay, that's great, but this isn't the issue which is currently in dispute.

The rent for Jan/Feb/March is the grey area. Most of this period exists before 24th March, but the rent for this whole period was due in April, so after 24th March. If ResidHotel are supposed to be honouring their debts that become due after 24th March, doesn't this mean that they should have paid the entire April instalment? Or, are they only obliged to pay us rent for the one week of business after 24th March?

In any case, they haven't paid us anything at all in April. So it sounds like they may have already broken the conditions of the "procedure de sauvegarde". They have certainly broken their promise made in the letter from Mr Mulko (see my translation earlier in this thread).
CliveUK39921.6290625

Clive, I think we are singing off the same sheet ... my understanding is that debts prior to 24th March are debt issues and to be registered with the administrators but thereafter RH must start paying immediately. I originally believed they would pay everyone 1 weeks rent for that week (24th march - End March on 1 April) and then the next quarter on 1st July but as you pointed out this hasn't materialised, therefore who knows? Anyone?

Clive Re your comments, rent is due in advance, therefore as per our rent agreement RH should have paid us in January for January, February and March. Aprils payment should be for April, May and June.

As they went into admin on 24th March, payments for Jan, Feb and upto 24th March need to be registered. the Administrator will then start to make payments from the 24th March. I don't know whether the Administrator will honour rent agreements and pay in adavance, if so we should be due a payment mid April plus no doubt the extra week for 24th March.