Commercial Leases/Business Goodwill

Pursuant to Articles 1719, 2° and 1720, para. 2, of the Civil Code, the lessor is obliged, by the nature of the lease contract, and without the need for any specific stipulation, to maintain the leased property  in a condition suitable for the use for which it was rented , and to carry out, throughout the duration of the commercial lease, all necessary repairs, other than those that are the tenant …

Maintenance obligation

Pursuant to Articles 1719, 2° and 1720, para. 2, of the Civil Code, the lessor is obliged, by the nature of the lease contract, and without the need for any specific stipulation, to maintain the leased property  in a condition suitable for the use for which it was rented , and to carry out, throughout the duration of the commercial lease, all necessary repairs, other than those that are the tenant's responsibility . The lessor is not only required to maintain the leased premises but also their access , as well as any ancillary premises subject to the lease, which are essential accessories to the main premises. Thus, the lessor of a premises located in a shopping center, of which they are the owner, must maintain the common areas of the shopping center, which are necessary accessories for the use of the leased property . However, in the absence of a specific and express stipulation, they are not required to maintain a commercially favorable environment for the tenant's activity , nor to guarantee foot traffic .

Articles 1719, 2° and 1720 of the Civil Code not being of public order , it is up to the parties, when concluding the lease, to determine the conditions for applying the maintenance and repair obligations incumbent on both the lessee and the lessor. While it is possible to derogate from the aforementioned articles by specific agreements , this is subject, on the one hand, to the new provisions of Article 1170 of the Civil Code, resulting from Ordinance No 2016-131 of 10 February 2016 , which deem unwritten clauses that would deprive the lessor's essential obligations of their substance, and on the other hand, to the new provisions of Article R. 145-35 of the Commercial Code, introduced by Law No 2014-626 of 18 June 2014  and Decree No 2014-1317 of 3 November 2014 , applicable to leases concluded or renewed from 5 November 2014 , which prohibit the lessor from charging the lessee for expenses related to major repairs mentioned in Article 606 of the Civil Code and works intended to remedy obsolescence or to bring the leased property into compliance with regulations insofar as they fall under major repairs. When concluding the lease, it is necessary for the parties to conventionally arrange the distribution of charges related to the maintenance and repairs of the building, taking care to avoid standard clauses unrelated to the specific characteristics of the leased property, as well as ambiguous and imprecise clauses. Indeed, the lease clause by which the lessee agrees to take the premises in the condition they are in at the time of taking possession does not exempt the lessor from their obligation to maintain the leased property in a condition suitable for its intended use . The lessee's entry into the premises, knowing their poor condition, does not amount to a waiver on their part to subsequently invoke the lessor's maintenance obligation . Conversely, a lessor cannot be compelled to carry out necessary repairs when the lessee has agreed to take the premises as they are and not to request any repairs of any kind during the lease term , when the commercial lease stipulates that “the lessee will maintain the leased premises in a state of rental repairs and maintenance” and has agreed to “take the premises as they were without being able to make any claims” , when the lessee acknowledged the state of obsolescence and dilapidation at the time of concluding the lease and agreed to take the leased premises as they were in exchange for a modest rent, thus waiving the right to demand any repairs , or when clauses of the lease place all routine maintenance expenses on the lessee and they have agreed to bear the cost, up to the proportionate share of condominium charges related to the premises, of all maintenance expenses of the building, including exceptional expenses, such as those related to major refurbishment .

The obligation to maintain the leased premises, which constitutes a continuous obligation  to which the lessor is bound throughout the rental period , is distinct from the obligation to repair, which only concerns the repair of accidents occurring outside normal wear and tear and which the lessor cannot know about unless informed by the lessee . The maintenance obligation requires the lessor to constantly ensure, without needing to be informed by the lessee of the necessity of the work to be done, the maintenance of the leased premises, that is, the repair of natural ravages of time and normal wear due to the action of the elements. However, the scope of this obligation may be limited, especially when the lessee, who waited eight years before notifying the lessor of the subsidence of the floors, commits a fault contributing to the occurrence of the disorders . These maintenance repairs, which are those useful for the permanent upkeep of the leased building in good condition, must be distinguished from major repairs concerning only the building's structure and general solidity , or from rental repairs or minor maintenance for which the lessee is responsible in accordance with Article 1754 of the Civil Code .

Thus, a landlord, who must maintain the premises in a condition suitable for the use for which they were rented, fails in their obligations when the humidity resulting from the absence of a rainwater downspout, attributable to the landlord, has led to the deterioration of the basement walls , or when they have not taken responsibility for the removal of an irregularly installed smoke extraction and evacuation duct and its restoration at their expense, while the restaurant activity conducted on the premises required the presence of such a duct . The landlord must also bear the harmful consequences related to the collapse of the ceiling when it was their responsibility to carry out work to ensure the solidity of its structure .

If a landlord must maintain the property in a condition suitable for the use for which it was rented, they are not required to rebuild it in the event of total or partial loss of the rented premises , unless the loss results from a fault or lack of maintenance attributable to them . When no fault can be attributed to the landlord, the judges have full discretion to assess the excessive cost of the work in relation to the annual rent  or the market value of the property  to determine the accidental nature of the loss leading to the termination of the lease , in accordance with Article 1722 of the Civil Code. Finally, the landlord who fails in their maintenance obligation incurs tort liability towards the third party to whom they have caused damage .

In all cases, the lessee may oppose the modification of an element of the leased premises if it causes a serious and permanent alteration to the substance of the premises leased and is neither urgent nor necessary for maintaining the premises in a normal state of repair and does not result in any real improvement .

Cass. 3e civ., 12 July 2000, LawLex202100003236JBJ.

Cass. 3e civ., 9 November 2010, LawLex202100004040JBJ, which quashes the appeal decision noting that the electrical installation of the leased premises was outdated and non-compliant, that the elevator cabinet was outdated, and holds that the compliance and repair work therefore fell under the landlord's obligations.

Act No 2014-626 of 18 June 2014 on Craftsmanship, Commerce, and Very Small Enterprises.

Decree No 2014-1317 of 3 November 2014 relating to commercial leases, Art. 6.

Decree No 2014-1317 of 3 November 2014 relating to commercial leases, Art. 8.

Cass. 3e civ., 31 May 1989, LawLex202100004014JBJ. – Also see Cass. 3e civ., 18 March 1992, LawLex202100004017JBJ, for a building whose main structure was made of temporary elements, becoming unsuitable for its intended use.

Cass. 3e civ., 2 March 1977, LawLex202200007011JBJ.

Cass. com., 9 April 1964, LawLex202200006701JBJ, op. cit.

Cass. 3e civ., 9 October 1974, LawLex202200007012JBJ, in this case, the trial court judges merely applied the parties' agreement by dismissing a tenant's claim to have the landlord ordered to carry out necessary repairs to the hotel's shutters, including those due to wear and tear.

Cass. 3e civ., 12 November 1975, LawLex202200007015JBJ.

CA Paris, 25 February 2009, LawLex202200007010JBJ.

Cass. 3e civ., 13 October 2021, LawLex202100006348JBJ.

Cass. 3e civ., 5 June 2002, LawLex202100003965JBJ.

Cass. 3e civ., 24 March 1993, LawLex202200006700JBJ, which specifies that if no tenant entitled to eviction compensation can be forced to leave the premises before receiving it, until the payment of this compensation, they have the right to remain in the premises under the terms and conditions of the expired lease contract, with the landlord consequently being responsible, towards the tenant, for maintenance repairs as well as major repairs during the period of remaining in the premises.

Cass. 3e civ., 13 October 2021, LawLex202100006348JBJ, according to which, without prejudice to the ongoing obligation to maintain the leased property, defects that appeared during the lease term, which only the lessee was able to observe, can only engage the lessor's liability if, informed of their occurrence, the lessor took no measures to remedy them.

Cass. 3e civ., 9 February 2005, LawLex202100005561JBJ, which condemns the lessee to bear, in a proportion sovereignly assessed by the trial court, the restoration of the upper floors of the ground floor and the first floor.

Cass. 3e civ., 13 July 2005, LawLex202100004031JBJ. – See, for example, Cass. 3e civ., 30 May 1996, LawLex202200007165JBJ, which considers that the work required due to the cracking of chimney flues falls under maintenance repairs.

Cass. 3e civ., 9 October 1974, LawLex202200007012JBJ, op. cit., for a commercial lease stipulating that “the tenants will maintain the rented premises in a state of rental repairs and maintenance,” the maintenance repairs being in addition to rental repairs, of which they are not synonymous.

Cass. 3e civ., 1 April 2003, LawLex202100004028JBJ.

Cass. 3e civ., 14 February 2012, LawLex202100003990JBJ.

Cass. 3e civ., 19 October 2017, LawLex202100004007JBJ.

Cass. 1re civ., 6 February 1963, LawLex202200007250JBJ, which specifies that the partial loss is established as soon as part of the item can no longer be preserved without excessive expense and thus becomes unsuitable for its intended use.

Cass. 3e civ., 3 October 1978, LawLex202200008701JBJ.

Cass. Ass. plén., 6 October 2006, LawLex200700000159JBJ : in this case, the access to the leased building was not maintained and the entrance gate was condemned.

Cass. 1re civ., 6 February 1963, LawLex202200007250JBJ, prec. – See also Cass. 3e civ., 2 July 1969, LawLex202200009216JBJ, according to which in the case of a commercial lease concerning a dilapidated building, which has been subject to a danger order and whose demolition has been ordered, and given the size of the building and the low rent price, the parties' intention could not have been to impose on the lessor repairs that, due to the exceptional dilapidation of the building, constitute at least partial reconstruction work and not normal maintenance, the lessor having committed no fault in the performance of his obligations.

Cass. 3e civ., 6 March 1984, LawLex202100004013JBJ. – Also see Cass. 3e civ., 30 September 1998, LawLex202100004021JBJ : when the deterioration of the buildings is due to a lack of maintenance attributable to the lessor, the latter cannot claim that the restoration was disproportionate to the current value of these buildings, which was only the consequence of his negligence.

Cass. 3e civ., 6 March 1984, LawLex202100004013JBJ, op. cit.

Cass. Ass. plén., 6 October 2006, LawLex200700000159JBJ, cited, for a tenant-manager of a business operated in the leased premises, who suffers damage due to the landlord's failures to maintain the building, with blocked access, a condemned entrance gate, and a non-functioning freight elevator, resulting in an inability to normally use the leased premises.

Cass. 3e civ., 16 April 2008, LawLex202100004036JBJ.

Cass. 3e civ., 19 December 2012, LawLex202100004045JBJ : in this case, the trial court judges noted a general deterioration of the building, the removal of access to the toilets of the shopping center, and the presence of rubble and mounds of earth preventing free access to the parking lot. – Also see Cass. 3e civ., 31 October 2006, LawLex202100004034JBJ : judges must investigate whether the lack of maintenance of the common areas of a shopping center does not have the effect of depriving the tenants of the benefits they derived from the lease.

Cass. 3e civ., 20 June 1995, LawLex202100006071JBJ. – Also see Cass. 3e civ., 28 June 2005, LawLex202100003975JBJ, on the degradation of the shopping center environment which attracted marginalized individuals of all kinds, not attributable to the landlord's fault.

CA Nîmes, 15 June 2022, LawLex202200003551JBJ, which specifies that a landlord has no obligation to guarantee the customer base of the leased premises or to provide a favorable commercial environment, and that, in the absence of a specific and express obligation related to the existence of a shopping center, the landlord is only obliged to maintain and ensure the peaceful enjoyment of the leased property.

Cass. com., 9 April 1964, LawLex202200006701JBJ, which specifies that although the lessor is generally required to maintain the leased property in a condition suitable for its intended use, in accordance with Article 1719, 2° of the Civil Code, they are not prohibited from contractually waiving this obligation; Cass. 3e civ., 28 May 2020, LawLex202200006319JBJ, according to which the lease clauses may derogate from Article 1720 of the Civil Code by expressly transferring to the lessee all maintenance and repair work, including major repairs, facade restoration, and roof refurbishment.

CA Bordeaux, 12 March 2024, LawLex202400002287JBJ.

Order No 2016-131 of 10 February 2016 on the reform of contract law, the general regime, and proof of obligations, Art. 2.

Commercial Leases/Business Goodwill

96. Maintenance obligation

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96. Maintenance obligation

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