Commercial Leases/Business Goodwill

Under the terms of Article 1732 of the Civil Code, the lessee “is responsible for any damage or loss that occurs during their enjoyment, unless they prove that it occurred without their fault.” This provision, which imposes a presumption of fault on the tenant, applies only in the relationship between the tenant and the landlord, excluding notably the tenant-manager  or the condominium association …

Damages

Under the terms of Article 1732 of the Civil Code, the lessee “is responsible for any damage or loss that occurs during their enjoyment, unless they prove that it occurred without their fault.” This provision, which imposes a presumption of fault on the tenant, applies only in the relationship between the tenant and the landlord, excluding notably the tenant-manager  or the condominium association . The lessee is only required to repair damage if it occurred during the enjoyment of the leased premises , until the keys are returned to the landlord , without their liability being sought for issues arising after their departure . However, when a new lease has been concluded between the parties, the landlord is entitled to claim from the lessee the repair of damage resulting from the use of the leased premises during previous leases .

In the event of successive transfers of the commercial lease, there is a transfer of obligations to the last holder of the contract, who then becomes liable, in turn, to the lessor for the damages caused by their predecessors . Thus, in the absence of a contrary clause, the assignee of the lease right is liable, with respect to the lessor, in their capacity as successor to the assignor, for the damages caused by the latter, unless the latter has undertaken to bear the cost of their repair at the time of the exit inventory . However, if the lessor enters into a new lease with the lessee with knowledge of the changes made to the premises during previous leases, they waive the obligation for the latter, assignee of the lease right, to be responsible for the damages caused by their predecessors, and cannot request the return of the premises according to the initial contractual stipulations .

Article 1735 of the Civil Code specifies that “the lessee is liable for the damage and losses caused by the actions of the persons of his household or his subtenants.” The lessee is thus responsible for damage to the premises not only by his own actions but also by the actions of all persons he allows to enter the leased premises, particularly to carry out repairs , because they depend on him or he accommodates them , or with whom he is in a relationship, excluding, however, the patients of a doctor, who do not constitute persons of the household within the meaning of Article 1735 .

The tenant's liability for damage or loss is not limited to damage caused in the leased premises . The trial court judges have full discretion to assess the nature of the tenant's fault , as well as the extent of their liability concerning the damage caused in the premises. Thus, they may hold the tenant liable for 75% of the damage caused in the leased premises, and the landlord, who could have acted more quickly and effectively, for 25% of the subsidence that occurred . However, the presumption weighing on the tenant is a simple presumption that can be overturned by proving that the damage occurred without their fault . While it is not up to the landlord to prove the tenant's fault , they must demonstrate that the damage occurred during the period of enjoyment, notably through a comparison between the initial and final condition reports . Also, a tenant who undertakes to maintain the entire leased premises in good repair and to return them at the end of the lease in good condition of all repairs must be liable for the damage noted in the final condition report, unless they prove it occurred without their fault , especially if the initial report noted the same damage. They cannot discharge their liability, even if the landlord refused to disclose the name of their insurer to allow an amicable assessment and never justified having regularized the claim with their insurance, which would have allowed recourse against the responsible party, while the lease obliges the tenant to return the premises in good repair .

Thus, the lessee incurs liability if they have committed a fault or negligence that contributed to the occurrence of the defects due to the fact that they waited at least eight years before notifying the lessor of the subsidence of the floors , or when, using the cellar since the beginning of the lease, they must have noticed the rapid and advanced deterioration of the floor and beams damaged by infiltrations, but did not take the precaution of alerting the lessor in a timely manner about the situation .

On the other hand, the lessee can always be exempted from liability for damage caused in the rented premises when a contractual stipulation is provided for this purpose, in cases of force majeure or due to the dilapidation of the premises , with the burden of proof resting on them .

Finally, the lessee, who causes damage to the leased premises, is liable for the payment of damages, which cannot be subject to a lump-sum assessment , a deduction from any security deposit , or even the restoration of the premises . The lessor may also request the termination of the lease or the implementation, if applicable, of the termination clause. In any case, the lessor's compensation for damage affecting the leased premises resulting from the lessee's failure to fulfill their obligations is not contingent upon the lessor carrying out repairs or incurring actual expenses , nor even upon proving damage to the building's structural integrity or a decrease in rental value .

Cass. 3e civ., 13 October 1999, LawLex200200005241JBJ.

Cass. 3e civ., 5 June 1991, LawLex202300000648JBJ, concerning a residential lease.

Cass. 3e civ., 10 November 2009, LawLex202300000651JBJ.

Cass. 3e civ., 19 November 2008, LawLex202300000663JBJ.

Cass. 3e civ., 6 December 1972, LawLex202300000657JBJ, which quashes the appellate decision that, in order to limit the tenants' liability to the repair of only the damage caused to the rented apartment, holds that the presumed liability of Article 1732 of the Civil Code, from which the tenant could not exonerate themselves, is based on the obligation to return the leased property in its original condition, and concerns only the property of which the tenant has exclusive enjoyment.

Cass. 3e civ., 11 December 2007, LawLex202100004584JBJ: in this case, it was by allowing the parking lot, which was leased to him and for which he pays an additional rent, to deteriorate that the lessee failed to fulfill his contractual maintenance obligation.

Cass. 3e civ., 27 November 2007, LawLex202300000656JBJ: in this case, the cause of the floor collapse was due to a wooden joist giving way, and the origin of the damage was attributed to water infiltration resulting from the installation of a poorly designed bathroom and the resulting water drainage failure attributable to the lessee. The aging condition of the joists, while it may have accelerated their fragility, could only be a very secondary cause.

Cass. 3e civ., 18 March 1974, LawLex202300000659JBJ, concerning a gas explosion that occurred in the premises, where the lessee does not demonstrate that the damages caused to the rented premises occurred without their fault. – Also see Cass. 3e civ., 2 December 2014, LawLex202100004594JBJ.

Cass. 3e civ., 28 January 2004, LawLex202300000658JBJ.

Cass. 3e civ., 5 October 1999, LawLex202300000662JBJ.

Cass. 3e civ., 13 October 2021, LawLex202100006025JBJ.

Cass. 3e civ., 17 November 2021, LawLex202200010879JBJ, préc.

Cass. 3e civ., 18 March 1998, LawLex202200010625JBJ, which quashes the appeal decision condemning a lessee, after his departure, to repair the heating installation disorders, without establishing that the freeze, which caused the damage, occurred during the enjoyment of the premises. – See also Cass. civ. 3e, 17 November 2021, LawLex202200010879JBJ.

Cass. 3e civ., 9 February 2005, LawLex202100005561JBJ.

Cass. 3e civ., 31 May 1994, LawLex202100005557JBJ.

Cass. 3e civ., 27 November 2007, LawLex202300000656JBJ, op. cit.

Cass. 3e civ., 23 January 2007, LawLex202100004634JBJ.

Cass. 3e civ., 21 September 2010, LawLex202300000660JBJ.

Cass. 3e civ., 25 February 2004, LawLex202100004629JBJ, which specifies that when a guarantor has committed to guaranteeing the payment of the rent amount, charges, and accessories that may be owed to the lessor, the guarantor cannot be held liable for any potential damages caused by the lessee.

Cass. 3e civ., 9 February 2005, LawLex202100005561JBJ, prec. – Also see CA Paris, 28 March 2018, LawLex202200004060JBJ: in this case, the lessee, who removed the chimney flues, contributed to the deterioration of the roof.

Cass. 3e civ., 15 November 2018, LawLex202100004600JBJ.

Cass. 3e civ., 13 November 1997, LawLex202100004561JBJ.

Cass. 3e civ., 25 June 1969, LawLex202300000759JBJ: in this case, the lessee, who failed to drain the central heating pipes and sanitary installations, is liable for the damage caused by freezing to the pipes, after the expiration of the lease but before the keys were returned to the lessor.

Cass. 3e civ., 7 October 1998, LawLex202100004565JBJ: in this case, the lessee could not seriously argue that the damages, for which the lessor was demanding payment for restoration work, occurred after he vacated the premises, as it was evident from the receipt, produced by him, of the filing of his complaint against an unknown person for damage to the protective grille and the entrance door of the rented premises, that these events occurred before his letter expressing his intention to terminate the lease.

Cass. 3e civ., 8 December 1999, LawLex202100004523JBJ.

Cass. 3e civ., 9 July 2003, LawLex202200008456JBJ.

Cass. 3e civ., 13 June 2001, LawLex202200008680JBJ.

Cass. 3e civ., 6 March 2012, LawLex202300000649JBJ.

Cass. 3e civ., 19 January 2000, LawLex202300000652JBJ: in this case, the damage occurred due to a plumber whom the lessee had allowed to enter the leased premises to carry out a repair.

Commercial Leases/Business Goodwill

115. Damages

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115. Damages

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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