Commercial Leases/Business Goodwill

According to Article L. 145-40-2 of the Commercial Code, any commercial lease agreement must include a precise and exhaustive inventory of the categories of taxes, duties, and charges, indicating their allocation between the lessor and the lessee. Article R. 145-35, 3°, which sets its conditions of application, prohibits any charge to the lessee of “taxes, including the territorial economic contri …

Taxes

According to Article L. 145-40-2 of the Commercial Code, any commercial lease agreement must include a precise and exhaustive inventory of the categories of taxes, duties, and charges, indicating their allocation between the lessor and the lessee. Article R. 145-35, 3°, which sets its conditions of application, prohibits any charge to the lessee of “taxes, including the territorial economic contribution, duties, and charges for which the legal debtor is the lessor or the owner of the premises or building.” The text adds that “the property tax and additional taxes to the property tax, as well as taxes, duties, and charges related to the use of the premises or building or to a service from which the lessee benefits directly or indirectly, may be charged to the tenant.” Only an express stipulation in the commercial lease can charge the lessee with the property tax , the office tax, as well as the additional taxes , such as the household waste collection tax , which, without being included in the property tax, constitutes a separate levy . When the leased premises benefit from an exemption from property tax, the lessor cannot stipulate in the lease that it will be charged to the lessee . In the absence of a specific stipulation, the lessee is entitled to request the lessor to refund the amounts unduly paid for these levies , even if they correspond to services from which he benefits . In the presence of an oral lease, it is necessary to ascertain the existence of an agreement between the parties on the transfer to the lessee of the burden of the property tax. In the event of an assignment, the assignee of the leasehold right is required to assume it when such an agreement has been concluded .

The requirement for an express clause placing the property tax on the tenant does not imply that the term “property tax” must be mentioned. Indeed, it is sufficient that, without ambiguity, the terms of the commercial lease lead to placing this tax on the tenant . Thus, the property tax must be paid by the tenant when a clause stipulates that “the tenant will reimburse the landlord each year, in addition to the rent set below and at the same time as the last installment thereof, all taxes, contributions, and charges of any kind to which the leased property may be or may become subject, except for taxes purely personal to the landlord such as income tax” , or when the lease places on the tenant all taxes to which the leased premises are subject so that the rent is net of all charges whatsoever, with the sole exception of taxes that may burden rental income . Conversely, a tenant does not have to bear the cost of the property tax when the lease agreement provides that the tenant undertakes to “reimburse the landlord for the share of charges and services, garbage collection tax, sewer discharge, sweeping, and others, incumbent on the building” , or that “the tenant must pay exactly the taxes, contributions, and charges for which they are personally responsible” . The landlord also cannot charge the tenant for the garbage collection tax, which is not a charge in the strict sense, when the lease, in its summary wording, merely distinguishes the usual rental charges incumbent on the tenant from the property tax borne by the landlord . A specific stipulation, which imposes the payment of the property tax on the tenant, being necessary, the latter cannot be required to pay it on the grounds that they accepted, throughout the initial lease term, to bear it, as is customary in their sector of activity , the fact that they accepted to pay it for several years not equating to an acknowledgment by them that this charge is incumbent upon them .

In a real estate complex, paragraph 3 of Article L. 145-40-2 specifies that the amount of taxes, charges, and fees that can be charged to the tenant must strictly correspond to the premises occupied by each tenant and the share of common areas necessary for the operation of the leased premises. Here too, the distribution of taxes, charges, and fees among the different tenants of the building can conventionally be subject to a weighting that is communicated to them (Article R. 145-35, para. 2).

Finally, Article R. 145-35, 5° of the Commercial Code specifies that taxes, charges, and fees related to vacant premises located in a building complex, or attributable to other tenants of the building, cannot be charged to the lessee.

Cass. 3e civ., 28 September 2022, LawLex202200008665JBJ, which overturns the appellate decision rejecting the landlord's claim for payment of property tax, while the lease expressly places the property tax burden on the tenant. – Conversely, See Cass. 3e civ., 24 September 2020, LawLex202200009545JBJ, according to which the tenant cannot be charged for the reimbursement of property tax if the commercial lease does not stipulate it.

Paris, 3 March 2010, LawLex202200010663JBJ, which specifies that, not being part of the charges usually recoverable from the lessee, the recovery of property tax, office tax, and additional tax requires an express stipulation in the lease agreement.

Cass. 3e civ., 12 September 2019, LawLex202100004603JBJ.

CA Dijon, 26 August 2021, LawLex202100006342JBJ, which adds that the term “and others” does not refer to the property tax.

Paris, 6 November 2019, LawLex202100004606JBJ, which adds that such a clause cannot impose on the tenant either the property tax, the waste removal tax, or the office tax, as these do not constitute taxes personally chargeable to the tenant but are taxes incumbent on the owner of the leased premises.

CA Toulouse, 19 April 2017, LawLex202100004619JBJ.

Cass. 3e civ., 26 March 2013, LawLex202100004533JBJ.

CA Paris, 17 January 2018, LawLex202100004604JBJ.

Cass. 3e civ., 13 June 2012, LawLex202100004529JBJ; 13 September 2018, LawLex202100004599JBJ; 16 May 2024, LawLex202400004314JBJ.

Cass. 3e civ., 24 September 2020, LawLex202200009545JBJ, prec.: the tenant cannot be charged with the reimbursement of the property tax on the grounds that the lease obliges the tenant to reimburse the landlord for the portion related to the rented premises in the waste collection tax. – See also Paris, 25 October 2017, LawLex202100004543JBJ, which specifies that the waste collection tax is not a component of the property tax but an optional additional tax legally attached to the status of owner.

CA Grenoble, 13 October 2022, LawLex202200009431JBJ, concerning premises located in an urban free zone.

CA Paris, 30 June 2010, LawLex202200010653JBJ.

Cass. 3e civ., 13 December 2018, LawLex202100005588JBJ.

Cass. 3e civ., 28 May 2020, LawLex202100005587JBJ: in this case, an agreement had been reached prior to the opening of the tenant's judicial reorganization proceedings, and the partial transfer of its assets that followed.

CA Versailles, 20 June 2024, LawLex202400004833JBJ, holding that the use of the terms “municipal taxes” and “city charges,” which undeniably refer to the property tax, demonstrates the parties' intention to charge the tenant with the latter.

Cass. 3e civ., 3 June 2004, LawLex202100004575JBJ, which specifies that the basis of the property tax is constituted by the building independently of the personal situation of its owner.

Commercial Leases/Business Goodwill

111. Taxes

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111. Taxes

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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