Commercial Leases/Business Goodwill

Under Articles 1728 and 1729 of the Civil Code, the lessee must use the leased premises reasonably, under penalty of facing the termination of the commercial lease. Any abuse of enjoyment resulting in abnormal disturbances for the lessor or third parties is also prohibited. Pursuant to the principle that “no one should cause another an abnormal neighborhood disturbance,” the lessor, who may be joi …

Nuisance

Under Articles 1728 and 1729 of the Civil Code, the lessee must use the leased premises reasonably, under penalty of facing the termination of the commercial lease. Any abuse of enjoyment resulting in abnormal disturbances for the lessor or third parties is also prohibited. Pursuant to the principle that “no one should cause another an abnormal neighborhood disturbance,” the lessor, who may be jointly liable in solidum with their lessee  for the nuisances committed by the latter, must make every effort to stop the disturbance . It is up to the trial court to characterize the abnormality of these disturbances by assessing, in each specific case, particularly with regard to the nature of the premises, their excessive nature in relation to the normal inconveniences of neighborhood , and to determine the amount of compensation to which the victims of these disturbances may be entitled . If they are required to stop them, the trial court must, however, limit the restrictive measures on activity to what is strictly necessary .

Noise disturbances constitute a nuisance exceeding the normal inconveniences of neighborhood relations when they surpass an acceptable tolerance threshold compared to the normal discomfort that one should reasonably endure . This is the case, for example, with significant noise disturbances resulting from the nighttime operation of a restaurant as well as the noise from the extractor and compressor that exceeds accepted values , noise resulting from professional work when it is excessive and exceeds the normal inconveniences of neighborhood relations , the use of music at a high volume , the gathering of individuals consuming alcohol noisily on the public road, sold by the lessee , the operation of a nightclub generating noise disturbances in a premises not suitable for such activity given its structure , or more generally, the persistence in organizing parties . Conversely, it has been judged that noises, truly perceptible, coming from a terrace and adding to traffic noise, if they constitute a disturbance, do not present an abnormal character for neighbors who knowingly purchased an apartment located directly above a dining establishment . The same applies to significant noises from the clashing of kitchen utensils, people talking, or the closing of a metal shutter .

Odor nuisances can create an abnormal disturbance. This is the case with foul odors due to poor hygiene and the storage of spoiled food , or cooking odors that spread abnormally into a neighboring apartment due to a non-compliant smoke extractor , or when the filters of a hood are insufficient and poorly maintained, and the ventilation is reversed .

3) Non-compliance with the purpose of the premises and/or the condominium rules

The abuse of enjoyment can be characterized if it contravenes a lease stipulation, which requires the lessee, when the prohibition of noise nuisances is included in the purpose clause, to carry out, at their expense, all work to prevent these , or if it is included in the co-ownership regulations , which allow the premises to be used for businesses on the condition that they are neither noisy, nor odorous, nor dangerous , or which stipulate, without condition, that the building is intended for mixed residential and professional or commercial use, and that any business or craft can be conducted on the ground floor premises . The trial court judges interpret the clauses of the regulations restrictively. Thus, the use of a premises for restaurant purposes is not prohibited by the co-ownership regulations when it designates it as intended for commercial use without any other reservation than that related to the prohibition of noise or odor nuisances . When the lessee's activity is authorized by the co-ownership regulations, it must, in any case, comply with its requirements regarding noise nuisances, even if work has been carried out in this regard . It is up to the trial court judges to determine whether the activity permitted by the lease is precisely prohibited by the regulations and whether it actually generates nuisances . Thus, they cannot refuse to order the cessation of activity of a pizzeria, while noting the existence of odor nuisances emanating from it, when the co-ownership regulations formally exclude establishments generating this type of nuisance . If the lessor must answer, vis-à-vis the co-ownership, for the disturbances generated by the activity of their lessee, without being able to rely on the latter's responsibility , each co-owner is entitled to exercise, in place of the lessor, an oblique action for lease termination against the tenant violating the co-ownership regulations , when the lessor's failure is likely to compromise their rights .

4) Nuisances resulting from activities conducted in accordance with previous rules in force

Article L. 113-8 of the Construction and Housing Code states that “damage caused to the occupants of a building by nuisances due to agricultural, industrial, artisanal, commercial, tourist, cultural, or aeronautical activities does not give rise to a right to compensation when the building permit related to the building exposed to these nuisances was requested or the authentic act recording the alienation or lease was established after the existence of the activities causing them, provided that these activities are carried out in compliance with the legislative or regulatory provisions in force and that they have continued under the same conditions.” These provisions, which are not applicable in relations between co-owners , cannot, however, be applied, even if the premises in question were occupied by a garage at the time of the acquisition of the neighboring pavilion, when the lessee installed the technical inspection center, the source of the noise nuisances, under a lease concluded after this acquisition .

CA Orléans, 14 November 2011, LawLex202300002639JBJ: in this case, the lessor decided to lease premises to the lessee for a restaurant activity without ensuring that this activity could be carried out without unduly disturbing the neighborhood's tranquility. – Also see CA Toulouse, 15 February 2016, LawLex202300002576JBJ, according to which the responsibility for repairing the abnormal disturbance to the neighborhood lies both with the owner of the commercial premises from which the disturbance emanates and with the tenant whose restaurant activity, requiring the use of an extraction system, is the source of the disturbance.

Cass. 3e civ., 17 April 1996, LawLex202300002618JBJ, the formal notices sent by the lessor to the lessee to put an end to the nuisances were not deemed sufficient.

Cass. 3e civ., 15 September 2009, LawLex202300002615JBJ.

CA Aix-en-Provence, 13 September 2018, LawLex202300002605JBJ.

CA Paris, 3 February 2007, LawLex202300002641JBJ.

CA Paris, 4 June 2014, LawLex202300002642JBJ, concerning a restaurant.

CA Paris, 22 February 2007, LawLex202300002574JBJ, previously cited.

CA Paris, 4 June 2014, LawLex202300002642JBJ, prec., concerning a pizzeria.

Cass. 3e civ., 11 June 1997, LawLex202100004558JBJ, op. cit.

CA Paris, 13 October 2010, LawLex202300002651JBJ, préc.

CA Paris, 13 October 2010, LawLex202300002651JBJ: in this case, the lessee is obligated, by their lease, to ensure the absence of noise disturbances and compliance with the condominium regulations.

CA Dijon, 5 September 2013, LawLex202300002636JBJ, where it was ruled that the persistence, over many years, of olfactory nuisances related to a restaurant activity, which are not very compatible with the activity of a neighboring co-owner, as well as their aggravation by successive works related to the installation of a non-compliant and dangerous ventilation system, constitute an abnormal neighborhood disturbance.

CA Aix-en-Provence, 24 May 2013, LawLex202300002606JBJ.

Cass. 3e civ., 20 July 1994, LawLex202300002633JBJ, which quashes the appeal judgment that does not specify how a religious activity is likely to create nuisances and risks exceeding those that could result from the building's intended use.

Cass. civ. 3e, 3 June 1998, LawLex202100004564JBJ, the manner of ensuring the operation of the restaurant through musical entertainment does not, by nature, constitute a violation of the provisions of the regulation.

Cass. 3e civ., 14 April 2010, LawLex202100004589JBJ: in this case, as the restaurant's closing hours were very late, to ensure the tenant's activity was compatible with the requirements of the regulation regarding noise disturbances, it had to be ordered to close its business no later than 10 p.m.

Cass. 3e civ., 2 July 2013, LawLex202100004593JBJ.

Cass. 3e civ., 13 November 2013, LawLex202300002614JBJ.

CA Dijon, 5 September 2013, LawLex202300002636JBJ.

Cass. 3e civ., 8 April 2021, LawLex202300002612JBJ: in this case, the lessor, who was informed by the property manager and the other co-owners of the nuisances caused, did not take steps to ensure compliance with the co-ownership regulations.

Cass. 3e civ., 12 July 2018, LawLex202100004601JBJ.

Cass. 3e civ., 23 January 1991, LawLex202300002635JBJ.

CA Paris, 27 September 2012, No 10/24376, LawLex202300003006JBJ.

Cass. 2e civ., 7 February 2008, LawLex202300002608JBJ.

CA Paris, 16 January 2013, LawLex202300002561JBJ, where the court considers that the cessation of the café-bar-brasserie-restaurant activity by the lessee, involving its closure, constitutes an excessive sanction disproportionate to the actual disturbances suffered by the co-owners, even if they remain abnormal.

CA Toulouse, 13 April 2011, LawLex202200000888JBJ, which specifies that noise disturbances are assessed in concreto.

Cass. 3e civ., 11 June 1997, LawLex202100004558JBJ.

Cass. 3e civ., 8 February 1972, LawLex202300002613JBJ: in this case, the lease does not impose any obligation on the landlord to carry out soundproofing work.

CA Metz, 5 May 2022, LawLex202300002637JBJ, regarding the operation of a bar, a restaurant, and a cafeteria.

CA Paris, 22 February 2007, LawLex202300002574JBJ.

Commercial Leases/Business Goodwill

122. Nuisance

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122. Nuisance

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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