Commercial Leases/Business Goodwill

Under the terms of Article R. 145-3, 1°, 2°, and 3°, the specific characteristics of the leased premises are assessed based on “its location within the building where it is situated, its surface area and volume, the convenience of its access for the public,” “the importance of the areas respectively allocated to public reception, operation, or each of the various activities conducted on the premis …

Specific characteristics of the premises

Under the terms of Article R. 145-3, 1°, 2°, and 3°, the specific characteristics of the leased premises are assessed based on “its location within the building where it is situated, its surface area and volume, the convenience of its access for the public,” “the importance of the areas respectively allocated to public reception, operation, or each of the various activities conducted on the premises,” but also “its dimensions, the configuration of each part, and its adaptation to the type of activity conducted there.” The judge may, to set the rent of the renewed lease at the rental value, rely on the specific characteristics of the premises on the day of renewal and take into account the importance of the areas respectively allocated to public reception and operation following the renovation work carried out without altering the building's structure, even if these have reduced the sales area compared to that authorized by the lease .

The issues of the location of the premises within the building and the convenience of public access are interconnected and influence the rental value. Thus, when rented premises lack street access and are located in an inner courtyard, accessible via a narrow covered passage three meters wide and fourteen meters long, even if the location is indicated by a sign and a freestanding board on the street, this absence of a storefront or entrance directly onto the pedestrian street is likely to disadvantage the business in question, and a reduction in the rental value must be applied to account for this configuration of the premises .

The criterion of surface area is of fundamental importance. The so-called “surface weighting” method, which takes into account the characteristics of the leased premises independently of the business conducted there, is a tool that allows for determining the rental value of the premises . The practice of weighting commercial surfaces is not governed by any legal or regulatory provision and varies according to the premises in question. Thus, it is up to the trial court to assess the weighting coefficient applicable to the different parts of the commercial premises, particularly in light of the expert report regularly communicated . However, they cannot exclude from the calculation of the weighted surface, due to their unusable nature, certain parts of the leased premises when the tenant has the possibility to conduct their commercial activity over the entirety of the leased surfaces and their decision not to exploit the surfaces in question cannot be opposed to the landlord . No res judicata is attached to the surface weighting adopted by a court decision in the context of a previous rent-setting procedure, and the total weighted surface of the leased premises may evolve subsequently . When the parties disagree on the calculation of both actual and weighted surfaces, it is appropriate to appoint an expert whose findings will usefully inform the judges for determining the rental value. Considering the recommendations of the real estate appraisal charter, which constitute the references commonly adopted by both commercial real estate professionals and judicial bodies, it is customary to weight the actual surface according to the nature of the different parts of the premises and their use . However, the non-binding appraisal charter can be disregarded knowingly . Finally, if a clause in the commercial lease can contractually set the weighting of the premises, it does not constitute an exceptional clause of common law that could lead to a reduction in the rental value but is binding on the judge when setting the rent of the renewed lease , the same solution applying to a judicial contract that records the parties' agreement on the amount of the weighted surface .

Finally, pursuant to Article R. 145-3, 4° and 5°, consideration must be given, when assessing the characteristics of the premises, to “the state of maintenance, obsolescence or sanitation and compliance with the standards required by labor legislation,” as well as “the nature and condition of the equipment and operating resources made available to the tenant.”

Cass. 3e civ., 13 June 2024, LawLex202400004504JBJ.

CA Aix-en-Provence, 15 September 2016, LawLex202300006054JBJ.

CA Paris, 10 June 2015, LawLex202100004666JBJ.

Cass. 3e civ., 19 September 2007, LawLex202300006055JBJ.

Cass. 3e civ., 3 April 2012, LawLex202100006087JBJ, which overturns the appellate decision excluding the areas of the second and third floors, as well as the attic of a leased building, from the calculation of the weighted area.

CA Paris, 10 June 2015, LawLex202100004666JBJ, previously cited.

CA Paris, 14 May 2014, LawLex202100004665JBJ.

CA Toulouse, 5 June 2019, LawLex202100006245JBJ.

Cass. 3e civ., 9 April 2013, LawLex202100005990JBJ.

Cass. 3e civ., 25 February 2016, LawLex202300006056JBJ.

Commercial Leases/Business Goodwill

151. Specific characteristics of the premises

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

151. Specific characteristics of the premises

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise