Commercial Leases/Business Goodwill

Under the provisions of Article R. 145-35, 1° of the Commercial Code, stemming from Decree No 2014-1317 of 3 November 2014  and applicable to leases concluded or renewed from 5 November 2014 , the lessee cannot be charged “expenses related to major repairs mentioned in Article 606 of the Civil Code as well as, where applicable, fees related to the execution of these works.” While Article R. 145-35 …

Major repairs

Under the provisions of Article R. 145-35, 1° of the Commercial Code, stemming from Decree No 2014-1317 of 3 November 2014  and applicable to leases concluded or renewed from 5 November 2014 , the lessee cannot be charged “expenses related to major repairs mentioned in Article 606 of the Civil Code as well as, where applicable, fees related to the execution of these works.” While Article R. 145-35 is of public order , the same does not apply to Article 1720 of the Civil Code, which the clauses of leases concluded or renewed before 5 November 2014 could derogate from by expressly transferring to the lessee all maintenance and repair work, including major works, facade restoration, and roof refurbishment .

Article 606 of the Civil Code defines, in a restrictive manner, major repairs which include “those of the main walls and vaults, the restoration of beams and entire coverings,” "that of dikes and retaining and enclosing walls also in their entirety," with the exception of all other repairs which are maintenance . The Court of Cassation adopts a more comprehensive definition and distinguishes maintenance repairs necessary for the permanent upkeep of the building in good condition from major repairs which concern the building in its structure and overall solidity .

When the lease was concluded or renewed from 5 November 2014, the landlord cannot be exempted from bearing the costs of work related to the complete renovation of the roof, which constitutes major repairs within the meaning of Article 606 of the Civil Code. This solution was already established by the Court of Cassation, which accepted the principle that a clause in a commercial lease, which places the burden of major repairs, including those of the roof, on the tenant, does not exempt the landlord from the renovation of the latter , as long as it is complete , even if it is a glass roof . The same applies to the clause that transfers the burden of major repairs and that of the enclosure and cover to the tenant, which cannot include the complete renovation of the roof, even if it concerns only one of the buildings included in the leasehold . However, the landlord is not required to carry out the roof repair of a leased building at their own expense if the need for renovation results, at least in part, from the tenant's failure to fulfill their maintenance obligation .

Renovation work can be charged to the landlord when it is considered major repairs. In this case, it is necessary to determine whether the planned repair aims to address a serious defect that either affects one of the essential elements of the building or, by its generality, affects its existence or purpose . Thus, major repairs charged to the landlord include the renovation of three facades involving masonry work with stripping and facade renovation , or renovation work involving silicone treatment of porous brick facades and the replacement of sheet metal panels . Conversely, the removal and installation of ceramic tiles on the facade are the responsibility of the tenant . Renovation expenses are in no case rental charges  and must be contractually transferred to the tenant when the lease is concluded, as the mere payment of provisions is not sufficient to characterize the tenant's agreement to take them on . Work prescribed by the administrative authority is the responsibility of the landlord, unless expressly stipulated otherwise , which means that even if the lease assigns facade renovation work to the tenant, a landlord cannot claim a breach of the tenant's obligations and must bear the cost of this work when the lease does not expressly stipulate their assumption by the tenant . Conversely, the tenant cannot rely on the administrative injunction to charge the landlord with the necessity of renovation work if, under the terms of the lease, it was the tenant's responsibility and if the tenant had fulfilled their obligation of regular maintenance of the rented premises, the facades would not have deteriorated .

For leases entered into or renewed since 5 November 2014, Article R. 145-35, 2° of the Commercial Code provides that expenses related to refurbishment work, aimed at “bringing the leased property or the building in which it is located into compliance with regulations, insofar as they constitute major repairs” mentioned in Article 606 of the Civil Code, cannot be charged to the tenant.

Finally, also constituting major repairs, within the meaning of Article 606 of the Civil Code, attributable to the lessor, are the works to restore the building after floods, works aimed at preventing or limiting the risk of flooding, works to bring roofs into compliance and to refurbish the electrical installation, the repair of a water leak in the basement, the repair of a pipe destroyed by freezing due to a lack of insulation, and the restoration of the shed roof, which concern the structure and preservation of the building . However, this is not the case for the replacement of the air conditioning system , repairs related to damage affecting about thirty cracked or split windows on one side of a sawtooth roof , the refurbishment of a floor , the installation of a partition against buried masonry , or the replacement and repair of windows . In any case, the mere fact that the works must be undertaken by the condominium association does not exempt the lessor from their responsibility .

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

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

Cass. 3e civ., 11 December 1991, LawLex202200008298JBJ.

CA Aix-en-Provence, 8 November 2001, No 97/02834.

Cass. 3e civ., 31 March 1998, LawLex202100004020JBJ.

Cass. 3e civ., 12 April 1995, LawLex202100004019JBJ.

Cass. 3e civ., 11 May 1995, LawLex202200008300JBJ.

Cass. 3e civ., 21 February 1996, LawLex202200008302JBJ.

Cass. 3e civ., 19 December 2012, LawLex202200008384JBJ.

Cass. 3e civ., 10 May 2001, LawLex202200008303JBJ.

Cass. 3e civ., 5 October 2017, LawLex202200008387JBJ.

Cass. 3e civ., 13 September 2018, LawLex202200008304JBJ, the lessor having issued, in this case, a summons for the purpose of restoring the facade in accordance with the contractual maintenance obligation, before the administrative injunction to proceed.

Article L. 145-15 of the Commercial Code deems unwritten, regardless of their form, the clauses, stipulations, and arrangements that have the effect of circumventing Article L. 145-40-2, stemming from Law No 2014-626 of 18 June 2014, whose implementation modalities were established by Decree No 2014-1317 of 3 November 2014, which notably inserted Articles R. 145-35 to R. 145-37 of the same code, specifying the list of works, charges, taxes, and fees that can no longer be charged to the lessee.

Cass. 3e civ., 13 July 2005, LawLex202100004031JBJ, prec. – Also see Cass. civ. 3e, 27 November 2002, LawLex202100004571JBJ, who considered, however, that the replacement of the pipes, some of which were located on the roof terrace of the building, did not constitute major repairs.

Cass. 3e civ., 10 February 1999, LawLex202100004024JBJ.

Cass. 3e civ., 2 May 2012, LawLex202100004044JBJ.

Cass. 3e civ., 24 February 2004, LawLex202200008388JBJ.

Cass. 3e civ., 25 March 2014, LawLex202200009108JBJ.

Cass. 3e civ., 29 March 2000, LawLex202200008389JBJ.

CA Versailles, 2 May 2024, LawLex202400003560JBJ.

Cass. 3e civ., 28 May 2020, LawLex202200006319JBJ, for a building used as a hotel leased for renewal on 23 December 2005, under the former law.

Cass. 3e civ., 10 February 1999, LawLex202100004023JBJ.

Cass. 3e civ., 13 July 2005, LawLex202100004031JBJ.

Cass. 3e civ., 11 December 1984, LawLex202200008296JBJ.

Cass. 3e civ., 10 May 1991, LawLex202200008297JBJ. – See also Cass. 3e civ., 14 January 1992, LawLex202100004016JBJ, according to which the lessor cannot be exempted from the repair of roofs when it is total and required by obsolescence.

Cass. 3e civ., 28 June 1989, LawLex202200008299JBJ, for repair work, which concerns only part of the glass roof, which itself constitutes only part of the covering.

Cass. 3e civ., 29 September 2010, LawLex202100004039JBJ.

Commercial Leases/Business Goodwill

97. Major repairs

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97. Major repairs

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Les décisions de justice citées dans ce paragraphe :

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