Commercial Leases/Business Goodwill

Under the terms of Article L. 145-18 of the Commercial Code, the landlord may give notice to vacate in order to construct or reconstruct the existing building (para. 1), or to carry out real estate restoration work requiring the evacuation of the premises, in a protected sector, as defined by Articles L. 313-3 and L. 313-4-2 of the Urban Planning Code (para. 2). The fact that the landlord has give …

Construction or reconstruction

Under the terms of Article L. 145-18 of the Commercial Code, the landlord may give notice to vacate in order to construct or reconstruct the existing building (para. 1), or to carry out real estate restoration work requiring the evacuation of the premises, in a protected sector, as defined by Articles L. 313-3 and L. 313-4-2 of the Urban Planning Code (para. 2). The fact that the landlord has given notice for the expiration date of the lease does not preclude the issuance of notice based on Article L. 145-18 to construct or reconstruct the existing building .

The landlord's intention to demolish the building for reconstruction must necessarily exist when the notice is given . This intention is established when, before the notice is given, the landlord has signed a preliminary sale agreement in which the buyer declared the building was intended for demolition for the purpose of reconstructing a residential building, with evidence provided of demolition and construction permit applications , or when the building leased to the tenant must be demolished to allow for the construction of works planned by an urban community, with the aim of ensuring the development of a craft zone, and the operation has been effectively entrusted to a real estate developer who has obtained construction permits, in which the landlord was a managing partner, and no proof of the landlord's bad faith has been provided . Conversely, the notice is void if it is given before the sale of the leased building, as long as the landlord does not intend to reconstruct the existing building at the date of its issuance .

The landlord's right to terminate the lease to construct and reconstruct the existing building is counterbalanced by the obligation to pay the evicted tenant an eviction indemnity (Article L. 145-18, para. 1). The landlord is presumed sincere when the termination notice is accompanied by an eviction offer, with the burden of proof to the contrary and any potential misuse of legal provisions resting on the tenant . The landlord cannot evade this obligation unless they offer the evicted tenant premises that meet their needs and capabilities, located in an equivalent location (Article L. 145-18, para. 3) . The tenant has the option to accept these premises or to bring the matter before the competent court, under the conditions provided in Article L. 145-58 of the Commercial Code, if they consider that the premises do not meet the requirements of the text (Article L. 145-18, para. 5). According to the Court of Cassation , the date to be considered for assessing whether the replacement premises meet the needs and capabilities of the evicted tenant corresponds to the date of the termination notice and not the date of the tenant's departure. Therefore, the landlord must necessarily, in the termination notice, refer to the provisions of paragraph 3 and specify the new rental conditions . The landlord remains obliged to pay the tenant an eviction indemnity if, having started the construction of a new shopping mall and communicated a plan of the premises and the offered location to the tenant, the proposed replacement premises did not exist at the time the termination notice was issued . The tenant may also receive compensation for the temporary loss of enjoyment and the depreciation of their business. Additionally, they are reimbursed for their normal moving and installation expenses. Even if the landlord offers the evicted tenant premises that meet their needs and capabilities, located in an equivalent location, the tenant cannot be deprived of relocation and moving indemnities on the grounds that they refused the replacement premises offered by the landlord .

The lessor may rely on the provisions of Article L. 145-18 of the Commercial Code, even if they do not directly carry out the construction or reconstruction operations, but proceed through a company of which they are the managing partner, as their intention to demolish the building for reconstruction is nonetheless established . Finally, the reconstruction, when contemplated by the lessor, does not necessarily have to be identical and may even consist of a replacement by constructing a new building, even on an adjacent plot .

Cass. 3e civ., 20 December 1995, LawLex202100003793JBJ.

Cass. 3e civ., 27 October 1993, LawLex202100003792JBJ, which criticizes the court of appeal for having validated a notice to quit when the landlord's intention was not established.

Cass. 3e civ., 13 March 2002, LawLex202200006416JBJ.

Cass. 3e civ., 14 September 2010, LawLex202200002991JBJ.

CA Chambéry, 10 October 2017, LawLex202200003291JBJ.

Cass. 3e civ., 27 November 2012, LawLex202200006418JBJ.

Cass. 3e civ., 12 July 1995, LawLex202200006415JBJ; CA Toulouse, 22 May 2017, LawLex202200003292JBJ.

CA Paris, 6 March 2013, LawLex202200003166JBJ.

Cass. 3e civ., 7 December 1977, LawLex202200003168JBJ; CA Toulouse, 22 May 2017, LawLex202200003292JBJ.

Cass. 3e civ., 7 December 1977, LawLex202200003168JBJ.

CA Colmar, 29 March 2017, LawLex202200003289JBJ.

Cass. 3e civ., 14 January 2016, LawLex202200006417JBJ.

Commercial Leases/Business Goodwill

195. Construction or reconstruction

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

195. Construction or reconstruction

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