Commercial Leases/Business Goodwill

Article L. 145-40-1 of the Commercial Code, stemming from Law No 2014-626 of 18 June 2014 , of public order , requires, upon the tenant taking possession of the premises in the event of the conclusion of a commercial lease, assignment of the lease right, transfer or gratuitous transfer of the business, and upon the return of the premises, the establishment of an amicable and contradictory inventor …

Inventory of fixtures

Article L. 145-40-1 of the Commercial Code, stemming from Law No 2014-626 of 18 June 2014 , of public order , requires, upon the tenant taking possession of the premises in the event of the conclusion of a commercial lease, assignment of the lease right, transfer or gratuitous transfer of the business, and upon the return of the premises, the establishment of an amicable and contradictory inventory of fixtures by the landlord and the tenant, or by a third party mandated by them, which is annexed to the lease contract or, failing that, retained by each party (para. 1). Paragraph 2 specifies that “if the inventory of fixtures cannot be established under the conditions provided for in the first paragraph, it is established by a bailiff, at the initiative of the most diligent party, with costs shared equally between the landlord and the tenant.” When the landlord does not make all efforts to carry out this inventory, they are unable to invoke “the presumption of Article 1731 of the Civil Code” (para. 3). For leases concluded before 20 June 2014, the date of entry into force of Law No 2014-626, Article L. 145-40-1 of the Commercial Code “applies to any return of a premises provided that an inventory of fixtures was established upon taking possession” .

Under the regime prior to the law, it followed from Articles 1730 and 1731 of the Civil Code that if an inventory of fixtures had been made between the parties, the tenant had to return the leased premises in the condition in which they were received, according to this inventory, except for what had perished or been degraded by wear and tear or force majeure , which it was up to the latter to demonstrate . In the case where no inventory of fixtures was established, the tenant was presumed to have received them in good condition for rental repairs and had to return them as such, unless proven otherwise . If the absence of an inventory of fixtures did not prevent the landlord from proving the loss of an element of the leased property , the inventory of fixtures, drawn up by a bailiff, outside the presence of the tenant, remained valid against the latter when it had been duly submitted to the proceedings and subjected to the free discussion of the parties . Trial courts could not hold, to limit the tenant's liability to a certain amount for rental repairs, that it was not established that the leased premises were in better condition at the time of entry into use, nor that the masonry damage was attributable to the tenant, while noting that no inventory of fixtures had been established at the time of entry into use and that the expert had noted that the masonry damage was due to misuse .

When it is jointly established by the landlord and the tenant, the inventory of fixtures merely records a factual situation , until proven otherwise . Thus, when partitioning work has been carried out before the inventory of fixtures and is included therein, this work does not fall under the tenant's obligation to restore the premises, and the responsibility for their removal lies with the landlord . Similarly, if the initial inventory of fixtures states that the kitchen ceiling was in poor condition, the cost of replacing the ceiling tiles cannot be charged to the tenant, so that if the exit inventory of fixtures indicates that the false ceiling tiles need replacing, it does not result in any obligation for the tenant to bear the cost . If no observations were made regarding the premises when the tenant moved in, the tenant must return them in a condition that does not call for further observations, unless it can be demonstrated that the issues noted upon departure are due to wear and tear .

Act No 2014-626 of 18 June 2014 on Craftsmanship, Trade, and Very Small Enterprises, Art. 13-I.

Article L. 145-15 of the Commercial Code specifies that clauses, stipulations, and arrangements that have the effect of circumventing Article L. 145-40-1 of the same code are deemed unwritten, regardless of their form.

Cass. 3e civ., 18 March 2008, LawLex202100004636JBJ, which considers that trial courts cannot conclude that a lessee failed to meet their contractual obligations of maintenance and repairs without addressing their arguments that the lease clause mentioning new carpet, a private deed valid only until proven otherwise, is incorrect and that an entry report, drawn up by a bailiff and valid until proven false, noted that the floor was covered with clean and usable linoleum.

Cass. 3e civ., 15 September 2009, LawLex202100004638JBJ. 

CA Colmar, 5 June 2024, LawLex202400004453JBJ.

Cass. 3e civ., 28 February 1990, LawLex202200010856JBJ. 

Act No 2014-626 of 18 June 2014 on Craftsmanship, Commerce, and Very Small Enterprises, Art. 13-II.

Cass. 3e civ., 3 April 2001, LawLex202100004620JBJ. 

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

Cass. 3e civ., 20 January 1988, LawLex202300003225JBJ. 

Cass. 3e civ., 8 April 1999, LawLex202200010812JBJ. 

Cass. 3e civ., 2 May 2007, LawLex202100004635JBJ.

Cass. 3e civ., 21 June 2000, LawLex202200010853JBJ.

Cass. 3e civ., 25 February 2004, LawLex202100004629JBJ.

Commercial Leases/Business Goodwill

124. Inventory of fixtures

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

124. Inventory of fixtures

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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