Commercial Leases/Business Goodwill

By way of derogation from the provisions of Article L. 145-33, when evidence of a material change in local commercial factors is not provided, the rent variation following a triennial review cannot exceed that of the quarterly index of commercial rents or the quarterly index of rents for tertiary activities, published by the National Institute of Statistics and Economic Studies (INSEE), since the  …

Index-linked variation

By way of derogation from the provisions of Article L. 145-33, when evidence of a material change in local commercial factors is not provided, the rent variation following a triennial review cannot exceed that of the quarterly index of commercial rents or the quarterly index of rents for tertiary activities, published by the National Institute of Statistics and Economic Studies (INSEE), since the last amicable or judicial determination of the rent (Article L. 145-38, para. 3, Commercial Code).

Law No 2001-1168 of 11 December 2001, known as the MURCEF Law , which supplemented Article L. 145-38, para. 3, of the Commercial Code with the words “by way of derogation from the provisions of Article L. 145-33 of the Commercial Code,” put an end to the Privilèges solution  according to which the rent of the revised lease under Article L. 145-38 could not, in any case, exceed the rental value. Pursuant to this decision, the revised rent had to be set within the dual limit of the rental value mentioned in Article L. 145-33 and the price resulting from the indexation provided for in Article L. 145-38, with the trial court required to retain the lower of these two amounts . Since the entry into force of the MURCEF Law, it is no longer possible to revise the rent downward when the rental value is lower than the current rent, which constitutes the floor rent . However, the revised rent may be set at the rental value as long as it is between the current rent and the ceiling resulting from the index variation .

Moreover, while the construction cost index (ICC) can still appear in a sliding scale clause, it can no longer serve as the reference index since Law No 2014-626 of 18 June 2014 , in the case of a legal triennial revision (Art. L. 145-38 Commercial Code) or the setting of the rent for a renewed lease (Art. L. 145-34 Commercial Code) for leases concluded or renewed after 1 September 2014 . Article D. 112-2 of the Monetary and Financial Code specifies that the quarterly commercial rent index (ILC) applies when the lessee operates a commercial or artisanal activity, whereas the quarterly rent index for tertiary activities (ILAT) concerns tertiary activities other than commercial and artisanal activities, notably covering the activities of liberal professions and those carried out in logistics warehouses.

The calculation of the legal revision is carried out by taking into account the indices, on the one hand, of the quarter during which the request for revision is notified, and, on the other hand, of the quarter during which the last rent determination occurred, or the one in effect at the time of the lease signing, if it is a first revision . However, it is not possible to contractually organize a different calculation method that would contravene the public policy provisions of the revision aimed at containing rent revisions . However, the lease clause that stipulates a rent variation lower than that of the construction cost index is not contrary to the provisions of Article L. 145-38 of the Commercial Code, which aim to prohibit modifications exceeding the index variation . Finally, to calculate the revised rent, it is sufficient to apply the new index of the quarter to the rent to be revised and to take as the base index that of the corresponding quarter, as agreed in the lease or used during the previous revision.

Act No 2001-1168 of 11 December 2001 on urgent measures for economic and financial reforms, OJ of 12 December 2001, Art. 26.

Cass. 3e civ., 24 January 1996, LawLex202300008247JBJ.

Cass. 3e civ., 30 May 2001, LawLex202300008248JBJ, which approves the trial court judges for having correctly, independently of any variation in local commercial factors, set the rent at the rental value as long as it was lower than the rent price.

Cass. 3e civ., 11 July 2007, LawLex202300008249JBJ, which overturns the appeal decision that held, to state that the revised rent cannot exceed the rental value and set the rent at an amount lower than that resulting from the last determination, that the terms “by derogation from the provisions of Article L. 145-33” introduced to Article L. 145-38 of the Commercial Code by Law No 2001-1168 of 11 December 2001, cannot be understood as depriving the rent judge of the use of the rental value as an element in determining the rent, and that this would result in prohibiting any downward revision.

Cass. 3e civ., 6 February 2008, LawLex202200000135JBJ.

Act No 2014-626 of 18 June 2014 on crafts, trade, and very small enterprises, OJ of 19 June 2014, Art. 9.

Paris, 6 February 2008, LawLex202300007359JBJ, which considers that it is precisely by referring to the construction cost indices published by INSEE at the time of the lease signing and at the time of the revision request that the trial court determined the revised rent.

Paris, 31 October 2012, LawLex202300008360JBJ, which specifies that the mere reference made in the renewed lease to a contractual index to be considered during the revision that is prior to the one existing at the effective date of the lease cannot be considered as expressing the unequivocal intention of the lessee to waive the protective provisions of Article L. 145-38 of the Commercial Code.

Cass. 3e civ., 18 December 1985, LawLex202300007225JBJ.

Commercial Leases/Business Goodwill

165. Index-linked variation

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165. Index-linked variation

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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