Commercial Leases/Business Goodwill

Under the terms of Article 1755 of the Civil Code, “none of the repairs deemed to be the tenant's responsibility shall be charged to the tenants when they are caused solely by wear and tear,” which is characterized by the condition of the rented property being worn out over time. Repairs that are the landlord's responsibility, when necessitated by wear and tear, notably include the refurbishment o …

Wear and Tear/Force Majeure

Under the terms of Article 1755 of the Civil Code, “none of the repairs deemed to be the tenant's responsibility shall be charged to the tenants when they are caused solely by wear and tear,” which is characterized by the condition of the rented property being worn out over time. Repairs that are the landlord's responsibility, when necessitated by wear and tear, notably include the refurbishment of the electrical installation , a glass roof, roofing, or facade restoration . Since the text is not of public order, the Court of Cassation has established the principle that the parties may derogate from it by an express stipulation inserted in the lease, transferring to the lessee the repairs necessitated by the wear and tear of the rented premises . However, since the entry into force of the public order provisions of Article R. 145-35, 2° 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 landlord is prohibited from charging the tenant for expenses related to work aimed at remedying the wear and tear of the rented property insofar as they fall under major repairs mentioned in Article 606 of the Civil Code.

Apart from major repairs, the parties retain the option to specify in the lease, expressly, the repairs necessitated by the dilapidation of the leased premises that the lessee will undertake , notably indicating that they commit to carrying out, upon entering the premises, all repairs and restorations required by the condition of the premises, including those necessitated by dilapidation or wear . However, the works cannot be attributed to the lessee when the lease stipulates that the lessee takes the leased premises in their condition at the time of taking possession , that they are obliged to maintain the leased premises and carry out repairs other than those of Article 606 of the Civil Code , or that the lease leaves only major repairs to the lessor . A lessee cannot be held responsible for works caused by dilapidation when they have committed "to take the leased premises, without being able to demand any works of any kind, nor restoration from the lessor, to constantly maintain them and return them, at the end of the lease, in good repair of all kinds, except for those referred to in Article 606 of the Civil Code , or when a clause provides that they will keep the leased premises constantly in perfect condition of rental repairs and minor maintenance referred to in Article 1754 of the Civil Code and that they will bear those of major maintenance referred to in Article 606, para. 3, of the same code . However, the lessor may be relieved of such works when the dilapidation results from a lack of maintenance by the lessee, who must then bear the cost of restoration . It is up to the lessor to prove that the dilapidation is caused by the tenant's failure to fulfill their maintenance obligation .

Furthermore, Article 1755 of the Civil Code provides that the lessee may be exempted from the burden of repairs deemed to be the tenant's responsibility when they are caused by an event of force majeure. According to Article 1218 of the same code, “there is force majeure in contractual matters when an event beyond the debtor's control, which could not reasonably have been foreseen at the time of the conclusion of the contract and whose effects cannot be avoided by appropriate measures, prevents the debtor from fulfilling their obligation” , and constitutes the sole cause . However, the debtor is only exempt from their obligation for the time strictly required to eliminate the effects of the force majeure . Unless expressly stipulated otherwise , the obligation to repair, which falls on the lessee, therefore ceases in the event of force majeure . Conversely, this does not allow the lessee, who has carried out the repairs, to request reimbursement from the lessor who has discharged themselves in the lease of any obligation to repair .

Cass. 3e civ., 27 September 2011, LawLex202100004043JBJ.

Cass. 3e civ., 10 May 1990, LawLex202100004015JBJ.

Cass. 3e civ., 6 November 2016, LawLex202100004050JBJ.

Cass. 3e civ., 27 September 2011, LawLex202100004043JBJ, op. cit.

Cass. 3e civ., 10 January 1995, LawLex202100004018JBJ, regarding the tenant's complete failure to maintain the roof.

Cass. 3e civ., 12 April 1995, LawLex202100004610JBJ.

Previously, Ass. Plén., 14 April 2006, LawLex202000001834JBJ, according to which an event that is unforeseeable at the time of the contract's conclusion and irresistible in its execution constitutes a case of force majeure.

For an example excluding force majeure, Cass. 3e civ., 5 September 2012, LawLex202200009254JBJ, in this case, the multiple water damages suffered by the tenant are the result of the landlord's failure to fulfill maintenance or repair obligations, and not due to the passage of a cyclone, as the expert's findings demonstrate the advanced state of disrepair of the roof and its lack of watertightness.

Cass. 3e civ., 22 February 2006, LawLex202200009255JBJ, in this case, the nine-month period that has elapsed since the storm demonstrates that the landlord has not taken the necessary steps for the repair of the roof within an acceptable time frame.

Cass. 3e civ., 31 October 2006, LawLex202100004633JBJ, for a clause under which the lessee waives any repairs upon entering the premises as well as during the lease term, committing to carry out “both at the beginning of the lease and during its term all repairs, minor or major, without any exception, including major repairs provided for in Article 606 of the Civil Code.”

Cass. 3e civ., 31 October 2006, LawLex202100004633JBJ.

Cass. 3e civ., 14 March 1978, LawLex202200009253JBJ.

Cass. 3e civ., 3 April 2001, LawLex202100004026JBJ. – Also see Cass. 3e civ., 9 July 2008, LawLex202100003980JBJ; similarly Cass. 2008, Doc. fr., Paris, 2009, 266, according to which works made necessary by obsolescence, which can be transferred to the lessee by an express stipulation of the lease, remain the responsibility of the lessor when no clause releases the latter from the obligation to participate in such repairs. – See also Cass. 3e civ., 26 March 2020, LawLex202200009250JBJ.

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., 3 December 2015, LawLex202100004047JBJ, in this case, the clause concerning maintenance, repairs, and works, included in the lease, does not expressly include repairs caused by wear and tear.

Cass. 3e civ., 2 June 1999, LawLex202100004567JBJ.

Cass. 3e civ., 22 February 2005, LawLex202100004631JBJ.

Cass. 3e civ., 9 May 2019, LawLex202200009252JBJ. – Also see Cass. 3e civ., 26 March 2020, LawLex202200009250JBJ, above. – See also Cass. 3e civ., 5 April 2011, LawLex202100004041JBJ, in this case, the lessee had undertaken, under the lease, to “pay the lessor all charges related to the management, maintenance, and repairs of the building except for work expressly covered by Article 606 of the Civil Code.”

Cass. 3e civ., 10 May 1990, LawLex202100004015JBJ, préc. – See also Cass. 3e civ., 13 September 2011, LawLex202200009251JBJ.

Commercial Leases/Business Goodwill

99. Wear and Tear/Force Majeure

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99. Wear and Tear/Force Majeure

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