Despecialization (change of use) | 500 Questions - Business Law (Chapter 2.3.3) • Livv

349. What are the forms of despecialization?

Despecialization can be full or partial. Full despecialization, governed by Articles L. 145-48 and following of the Commercial Code, allows the tenant to request authorization to conduct one or more activities that are different from those stated …

350. Under what conditions can a lessee obtain full despecialization?

Article L. 145-18, para. 1, of the Commercial Code subjects full despecialization to several cumulative conditions, which must be established by the applicant . The examination of the exercise of a new and different activity must be conducted with …

351. What form and content must the request for full despecialization have?

The lessee, who is considering a change of business activity, must submit a request to the lessor (Art. L. 145-49, para. 1, Commercial Code). This request must, under penalty of nullity, include an indication of the activities intended to be …

352. Can the lessor refuse full despecialization?

The lessor must, within three months of the request for despecialization, notify their acceptance, refusal, or the conditions to which they subordinate their agreement. Failing this, they are deemed to have accepted the despecialization . They may …

353. Does full despecialization justify the payment of compensation to the lessor and does it imply a modification of the rent amount?

The change of activity may justify the payment by the tenant of compensation equal to the amount of the damage that the landlord estimates to suffer due to the despecialization (Art. L. 145-50, para. 1, Commercial Code). The lessor may also, in …

354. In which cases is assignment with change of use available to the tenant?

The legislator has created a specific case of despecialization for merchants who wish to assert their retirement rights or are beneficiaries of a disability pension (Art. L. 145-51 Commercial Code). They may, in accordance with Article L. 145-51, …

355. Does the assignment-despecialization allow for a modification of the rent amount?

Article L. 145-51 of the Commercial Code constitutes, according to case law, an autonomous text that excludes the application of provisions allowing derogation from the rule of capping and therefore does not allow a modification of the lease price …

356. Can the lessor invoke a change of use in the event of an assignment-despecialization?

The transfer of the leasehold right, under the conditions of Article L. 145-51 of the Commercial Code, does not deprive the lessor of the right to invoke, in support of their request for the determination of the rent of the renewed lease, the …

357. What constitutes an addition of a related or complementary activity that justifies partial despecialization?

The lessee may add ancillary or complementary activities to the initial activity as provided in the lease (Art. L. 145-47, para. 1). Partial despecialization is subject to the sole condition that the new commercial activity, whose addition is …

358. What does the concept of 'activity included in the lease' cover?

If the lessee can, in principle, only conduct the activities listed in the commercial lease on the rented premises, they may nevertheless engage in certain activities that, while not expressly mentioned in the lease, are included in the contractual …

359. How can the lessee form a request for a change of business activity?

A lessee wishing to add ancillary or complementary activities to the activity provided for in the lease, must, in accordance with Article L. 145-47, para. 2, of the Commercial Code, “inform the owner of their intention by extrajudicial act or by …

360. Can the lessor oppose a request for a change of activity?

The notification by the lessee of a request for the addition of a related or complementary activity serves as a formal notice to the lessor to state within a period of two months, under penalty of forfeiture, whether they contest this …

361. Can partial despecialization be judicially authorized?

In the event of a dispute by the lessor regarding the related or complementary nature of the activity envisaged by the lessee, the latter, pursuant to Article L. 145-47, para. 2, of the Commercial Code, may refer the matter to the Judicial Court …

362. What sanctions might the lessee face if they add a new activity without notifying the lessor?

The lessee may only add a related or complementary business activity to that authorized by the lease if they have notified their intention to the lessor. Therefore, any extension of the use of the premises without prior authorization from the …

363. Does partial change of use lead to a change in the amount of the rent?

By way of derogation from the provisions of Article L. 145-38, which sets the rules for capping, during the first triennial review following notification to the lessor, the commercial activities added may be taken into account for setting the rent …

364. Is partial despecialization enforceable against third parties engaged in the same business activity?

The lessee requesting a partial change of use cannot be prohibited from adding ancillary or complementary activities on the grounds that another tenant in the same building benefits from an exclusivity or non-compete clause. This potential right …