Concrete question : how to mortgage the Hôtel de la Marine ?


local/cache-vignettes/L290xH171/Hotel_Louer-ccefb.jpgA meeting involving various ministries was held last 15 September with the purpose of determining the “Valorization of the Hôtel de la Marine” [1]. In the minds of French political leaders, this monument built by Gabriel is now in fact only an asset to be exploited for maximum profit. But this is not an easy task as its dual aspect of historical monument and public property belonging to the state implies a certain number of restrictions which seem to strongly hamper the government’s projects.

The reason for this meeting therefore was to examine how to reduce these constraints as much as possible. To do this, a study had been commissioned from the offices of Gide-Loyrette-Nouel, international business lawyers, which had been submitted in a report, Modalités de valorisation de l’Hôtel de la Marine (Means of valorizing the Hôtel de la Marine) on 24 June 2009.
Both of these documents (the Gide-Loyrette-Nouel study and the report of the meeting among the ministries) are extremely informative. First of all, they never at any moment take into account the future of the furniture at the Hôtel de la Marine, most of it commissioned specifically for this building and preserved in situ since (see our article). In the same way, there is never any consideration of the matter of opening up the place for visits by the public. Although the principle of keeping the property within the government domain is no longer brought into question, in actual fact the arrangements for a financial project are practically the same. The “operation must be profitable”, as the Ministry of Defense reminded everyone. This “profit” will thus mean renting out the building on a long-term lease (see news item of 31/3/09). According to the proposals submitted by the offices of Gide-Loyrette-Nouel, a project offer will be presented to a private developer who will then suggest the length of the lease himself, which can range from 18 to 99 years. The difference between selling the building and leasing it for 99 years to a private firm is not very clear. To paraphrase Keynes, 99 years from now we’ll all be dead.

Nevertheless the government is faced with a problem not involving ethics. Current French laws do not make the long-term lease of a listed historical monument, which would remain in the government domain, attractive enough for a private developer. The project presents, as stated by the director of legal affairs at the Ministry of the Budget, “constraints which are contradictory with the existing law”. If the property [“bien”] (name used to designate the Hôtel de la Marine) remains in the public domain, it is possible to issue a permit for temporary occupation. But the lessee would only have real rights to the building on the “works, constructions and installations of a real-estate nature.” And real-estate constructions in the Hôtel de la Marine seem rather difficult to justify.
Why then is it so important to bestow “real rights” to the lessee ? The report is very clear on this point : this is the only legal point allowing the property to be mortgaged, and therefore access to bank financing. As these legal notions are a bit complex, we can resume as follows : the lessee must be able to mortgage the Hôtel de la Marine, or rather the long-term rights he will acquire to occupy it and use it. The government does not seem to be bothered in any way, not even the Ministry of Culture, by the fact that such a monument belonging to the country might be mortgaged. Furthermore, it would be hard to imagine imposing any restrictions on a new lessee who might acquire the lease rights of 99 years by taking out this mortgage.

The meeting for the “valorization of the Hôtel de la Marine” covered mostly the various means of solving this cruel problem. Several solutions are being considered. Three are legislative, a fourth one is stipulated by contract.

— the legislative solutions, which would be included in the finance law, are the following : make it possible to issue authorization of temporary occupation implying real rights for lessees of historical monuments (we can only imagine the consequences of such a law specially designed for the Hôtel de la Marine applied to historical monuments in general), or else create an administrative long-term lease on government property in the public domain (which runs the risk of being censored by the Conseil Constitutionnel as the constitution protects the public domain), or finally “elaborate a legislative ad hoc article for the Hôtel de la Marine”.

— the solution by means of a contract first has to remove the Hôtel de la Marine from the public domain ! There would thus no longer be any problem in writing out a traditional long-term lease to which “exorbitant clauses of this law” would be added : “limitation of the occupant’s activity, previous accord of a possible transferee, of a change of occupant (or any sub-leasing), even the right to unilaterally break off the contract.” As the validity of such a contract would be problematic, the Conseil d’Etat has been consulted for advice, as well as concerning the possibility options presented by a contract for temporary occupation.

The representatives of the Ministry of Culture simply limited themselves, according to the report, to requesting that the “specifications [retain] the restrictions attributed to this historical monument and [that] the supervision of the project [be] entrusted to the chief architect for historical monuments” ; they also underscored the need “for a study of authenticity, consisting in a systematic analysis of the entire building to determine the authentically historical parts”.

This whole affair is extremely outrageous. Instead of worrying about the public good, the government is only concerned about gaining maximum profit from a monument which, since its construction, has been an integral part of the national heritage. It is even willing to consider eliminating it from the public domain as government property and turning it over to a private developer [2] on a long-term basis, without ever stopping to worry about the fate of its furniture nor the legitimate access of the public to these historical rooms. We would do well to remember the theme of the Journées du Patrimoine 2009 : a heritage accessible to all.


Didier Rykner, samedi 24 octobre 2009


Notes

[1] The participants of the meeting, organized under the presidency of M. Jean de Boishue, designated head of mission of the Prime Minister, of Général de division de Villiers, head of the military cabinet of the Prime Minister and of M. Jean Dubertret, counselor for the Budget, State reform and public office within the Prime Minister’s cabinet were as follows : members of the cabinet to the President of the Republic, members of the military cabinet of the Prime Minister, a member of the General Secretariat to the government, public officials from the Ministry of Economy, Industry and Employment, from the Ministry of the Budget, Public accounts, public office and State reform as well as from the Ministry of Defense. The Ministry of Culture was represented by Sophie Durrleman, advisor on heritage and museums to the minister’s cabinet and Isabelle Maréchal, assistant director of the Management of Architecture and Heritage.

[2] Let us remember that the former minister of Culture, Renaud Donnedieu de Vabres, is an advisor to the Royal Monceau group in their efforts to obtain the rights to the Hôtel de la Marine (see our news item of 31/3/09) and the complacent article published by Le Figaro on 21/9/09).



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