Commercial Leases/Business Goodwill

The leasehold right may belong jointly to partners, spouses, or more generally to persons in joint ownership. When the leasehold right belongs jointly to de facto partners, the allocation of the leasehold right to one of them, by the effect of a declaratory partition, does not constitute a transfer of the leasehold right . This allocation, which predominantly has the nature of a partition, justifi …

Transfer of undivided rights

The leasehold right may belong jointly to partners, spouses, or more generally to persons in joint ownership. When the leasehold right belongs jointly to de facto partners, the allocation of the leasehold right to one of them, by the effect of a declaratory partition, does not constitute a transfer of the leasehold right . This allocation, which predominantly has the nature of a partition, justifies the absence of the need to comply with the formalities required in the event of a lease transfer  and is enforceable against the lessor, who cannot invoke the lease clause setting out the formalities to be completed in order to obtain their approval in the event of a transfer to a business successor . Conversely, a transfer of the leasehold right is characterized by the transfer granted by the co-owner lessee to a third party of their undivided rights in the business .

In the case of a business operated jointly by two spouses and in the absence of co-ownership of the lease, it has been considered that the operation of the commercial premises by the spouse cannot be regarded as a transfer of a lease right, even if the spouse is not the leaseholder . The same applies to the allocation, during the liquidation of the matrimonial regime due to divorce, of the lease right to the spouse who was a co-holder, which constitutes not a transfer of the lease, but a division . Similarly, in the event of the tenant's death, the Court of Cassation does not equate with a lease transfer the agreement duly notified to the property owner by the heirs when it has been concluded with a third party on a precarious and essentially temporary basis to ensure the operation of the business and is intended to be regularized at the end of the proceedings for lease termination initiated by the landlord .

On the other hand, the gift-sharing of the leasehold right must be considered as a transfer of the commercial lease, unless the donor reserves the usufruct and grants only the bare ownership, during their lifetime, to a third party .

Cass. 3e civ., 24 March 1981, LawLex202300012792JBJ.

Cass. 3e civ., 13 October 2004, LawLex202300013575JBJ.

Cass. 3e civ., 30 April 1997, LawLex202300013574JBJ.

Cass. 3e civ., 24 March 1993, LawLex202300012233JBJ.

Cass. 3e civ., 23 March 2011, LawLex202100001471JBJ.

Cass. com., 16 October 1963, LawLex202300012897JBJ.

Cass. 3e civ., 22 January 1992, LawLex202300012793JBJ.

Commercial Leases/Business Goodwill

294. Transfer of undivided rights

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

294. Transfer of undivided rights

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise