Commercial Leases/Business Goodwill

No provision of the Civil Code expressly provides for the warranty of the landlord's actions, except for Article 1723 of the Civil Code, which states that “the landlord cannot, during the term of the lease, change the form of the leased property,” which constitutes a component of it. The prohibition against modifying the leased premises applies both to the main premises, of which the tenant has ex …

Warranty of personal actions

No provision of the Civil Code expressly provides for the warranty of the landlord's actions, except for Article 1723 of the Civil Code, which states that “the landlord cannot, during the term of the lease, change the form of the leased property,” which constitutes a component of it. The prohibition against modifying the leased premises applies both to the main premises, of which the tenant has exclusive enjoyment, and to its accessories, such as entrances and access corridors to parking spaces , or even the main access to a shopping mall . Thus, the access facilities to the store constituting a substantial advantage considered by the tenant when entering into the lease, the landlord cannot deprive them of this advantage without valid reason .

If the landlord is prohibited from carrying out work that results in a substantial modification

When the lessor has irregularly changed the form of the leased premises, in violation of Article 1723 of the Civil Code, they may be compelled to restore the building . Thus, a lessee is entitled to request the demolition and restoration of the leased premises to their original state , even if these actions have disproportionate consequences and cause harm to neighboring tenants during the restoration work . The lessor, who fails to carry out the restoration work on the leased premises, to which they have been condemned, risks the termination of the lease .

In terms of equipment, the Court of Cassation has held that a tenant is entitled to demand a new gas heating installation, identical to the previous one, when the loss of a benefit derived from the lease is established due to the landlord's substitution of an electric heating installation for the original gas heating installation, which resulted in increased consumption costs that the landlord is obliged to compensate the tenant for .

In the event of flooding, a landlord may be held liable for the harmful consequences affecting the leased premises and required to carry out the necessary work to restore the premises, provided that such damage has been brought to their attention with a formal notice to remedy it . However, there are grounds for exemption from liability, particularly when the flooding is caused by a third party , when a clause in the lease stipulates that the tenant waives the right to hold the landlord liable in this respect , or in cases of force majeure .

In a condominium property, the obligation to guarantee the peaceful enjoyment of the leased property does not, in principle, concern the common areas of the building, the maintenance of which is the responsibility of the condominium. Thus, a tenant is not entitled to take action against their landlord for the execution of repair work on the water drainage system and for compensation for their material, economic, and commercial damage when the disputed pipes are subject to the condominium status . However, the landlord is required to have the condominium take urgent and appropriate measures to end the disturbance, which engages their liability when they cannot demonstrate having done everything possible to achieve this . Also, a landlord does not fulfill their commitments when, having to make every effort to have the condominium association intervene as quickly as possible, the waterproofing work on the common areas only took place long after the tenant informed them of its necessity .

If it is generally prohibited for the landlord to enter the rented premises without the tenant's authorization , there are limits to this principle. The parties may conventionally arrange a right of visit granted to the landlord, their representative, architect, or contractors, so that they can fulfill their maintenance obligation. While it is accepted that the landlord may show the rented premises to a potential buyer, this right must not lead to excessive visits and must not interfere with the peaceful enjoyment of the premises. The judge may, due to urgency, precisely regulate a visit to the premises under conditions that respect the tenant's rights .

The parties may conventionally adjust the landlord's warranty through a clause that exempts them from harmful consequences related to their personal actions, such a clause being valid except in cases of fraud or gross negligence . Thus, the lease clause that releases the landlord from any liability for damage caused by water or frost must be applied as long as their negligence does not have the severity of gross negligence . The same applies to the landlord's exclusion of liability clause, which states that “the tenant will personally handle the custody of the leased premises, the leasing company declining all responsibility in case of theft notwithstanding the existence of a security service in the building,” even though the landlord removed the fixed-post agent without informing the tenant, such an act not being sufficient to constitute gross negligence that would invalidate this clause .

Finally, the lessor, who fails in their obligation of warranty, may be ordered to stop the disturbance of enjoyment, by prohibiting them from continuing the inconvenience caused or by requiring them to restore the rented premises, with or without a penalty. When experiencing such disturbance, the lessee is entitled to claim damages , provided, however, that they establish the existence of personal harm . When it is demonstrated that the lessor was informed, before the sending of a formal notice, of the existence of issues requiring work for which they are responsible, the judge may charge them with compensating the lessee for the loss of enjoyment suffered, even prior to this notice . Besides the termination of the lease, the lessee also has the option to claim a rent reduction, without being able to combine the rent reduction with damages related to the repair of the loss of enjoyment. If they can invoke the exception of non-performance, it is only on the condition that they are in total inability to use the rented premises .

Paris, 31 October 1995, No 94/12575, in this case, the blockage of the access passage to the parking spaces was due to a decision by the co-owners' assemblies, following a mandatory order from the Paris Police Prefecture, which the landlord, a minority co-owner, was unable to oppose.

CA Nancy, 4 February 1998, No 315/98, in this case, a landlord who modified the layout of the shopping mall and removed the main entrance to the center altered an ancillary element of the commercial lease, thus violating the provisions of Article 1723 of the Civil Code, and committed a fault engaging their contractual liability.

Cass. 3e civ., 5 June 2002, LawLex202200010553JBJ.

Cass. 3e civ., 18 June 2002, LawLex202100003258JBJ. See Cass. 3e civ., 10 December 2013, LawLex202200010556JBJ, for climatic events exhibiting the constitutive characteristics of force majeure.

Cass. 3e civ., 2 March 1994, LawLex202200010609JBJ.

Cass. 3e civ., 9 February 2010, LawLex202100005550JBJ.

Cass. 3e civ., 13 July 2010, LawLex202200010613JBJ.

Cass. 3e civ., 25 February 2004, No 02-18.081.

Cass. 3e civ., 28 October 1974, LawLex202200010627JBJ.

Cass. 3e civ., 28 October 1974, LawLex202200010627JBJ, previously cited.

Cass. 3e civ., 21 January 2009, LawLex202100005551JBJ.

Cass. 1re civ., 8 October 1962, LawLex202200010557JBJ, in this case, the lessor constructed, on a platform belonging to him, which separates the building from the roadway, a low wall whose presence prevented trucks, which came to unload goods intended for the tenant's grocery business, from parking near the store.

Cass. 3e civ., 10 April 2002, LawLex202100005915JBJ.

Cass. 3e civ., 4 January 2011, LawLex202200010634JBJ: in this case, no accounting element indicating a loss of operation due to the landlord's breaches, the lessee does not establish the existence of personal harm suffered by him, his claim, aimed at compensation that might be due to each of his agents, is analyzed as a claim on behalf of others.

Cass. 3e civ., 22 May 2013, LawLex202200010652JBJ.

Cass. 3e civ., 31 October 1978, LawLex202200010638JBJ.

Cass. 3e civ., 25 January 2006, LawLex202100004033JBJ.

Cass. 1re civ., 8 October 1962, LawLex202200010557JBJ.

Cass. 3e civ., 3 April 1996, LawLex202100005916JBJ.

Cass. 3e civ., 24 November 1993, LawLex202200010547JBJ.

Cass. 3e civ., 19 November 2014, LawLex202200010549JBJ.

Cass. 3e civ., 12 July 2005, LawLex202200010555JBJ. See also Cass. 3e civ., 27 November 2012, LawLex202200010554JBJ, according to which a lessee is not entitled to take action against the lessor for compensation for their damage and for the execution of work to remedy disorders resulting from infiltrations, without having unsuccessfully given formal notice to the lessor to carry out the necessary repairs before referring the matter to the summary proceedings judge.

Cass. 3e civ., 28 June 2000, LawLex202100005545JBJ. LawLex202200010548JBJ, in this case, the defects observed are unrelated to any fault of the landlord and are caused by rainwater infiltration from a neighboring building.

Commercial Leases/Business Goodwill

103. Warranty of personal actions

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Les notions juridiques connexes

103. Warranty of personal actions

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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