Commercial Leases/Business Goodwill

Articles L. 145-4 and L. 145-9 of the Commercial Code provided, until 2014, that regardless of the person giving notice and the time at which it was delivered, at the end of the lease or prematurely , it could only be validly notified by extrajudicial act . If the parties could contractually provide for the possibility of giving notice before the minimum duration of nine years, the use of this for …

Form of Termination Notice

Articles L. 145-4 and L. 145-9 of the Commercial Code provided, until 2014, that regardless of the person giving notice and the time at which it was delivered, at the end of the lease or prematurely , it could only be validly notified by extrajudicial act . If the parties could contractually provide for the possibility of giving notice before the minimum duration of nine years, the use of this form remained mandatory. Thus, the parties' agreement, stipulating a triennial termination option by registered letter with acknowledgment of receipt, could not override the legal requirements, of public order, providing only for the possibility of proceeding by extrajudicial act .

Law No 2014-626 of 18 June 2014  allowed parties the free choice to give notice by registered letter with acknowledgment of receipt or by extrajudicial act, regardless of its purpose. However, the law of 6 August 2015  reversed this option. The lessor must again, in all cases, give notice by extrajudicial act (Articles L. 145-4, para. 3, and L. 145-9, para. 5, Commercial Code) . Thus, a lessor who refrains from proceeding by extrajudicial act, that is, by an act served by a judicial commissioner, does not validly give notice to the lessee . The lessee is also required to proceed by extrajudicial act when notice is given for the end of the lease . However, the lessee retains the choice between extrajudicial act or registered letter with acknowledgment of receipt for notice at the expiration of a three-year period (Article L. 145-4, para. 2, Commercial Code) , as well as when requesting to benefit from retirement rights under the social security scheme to which they are affiliated or when they are granted a disability pension under this social security scheme (Article L. 145-4, para. 4, Commercial Code).

Failure to comply with the form of the notice entails several consequences. First, the Court of Cassation considers that by failing to draw the tenant's attention to the irregularity of the notice given, the landlord, bound by a best-efforts obligation as a real estate professional, commits a fault, since, through their activity, they necessarily have knowledge of the legislation in this matter . Next, the notice that is not validly notified is subject to nullity. The nullity sanctioning the irregular form of the notice constitutes a relative nullity, which can be invoked exclusively by the recipient of the notice , who must demonstrate the harm caused to them by the irregularity in the form of the notice . The landlord may cover the irregularity and accept its consequences by waiving the right to invoke the nullity through unequivocal positive acts, such as demanding rent, proposing a meeting for the return of keys and the exit inventory , or actually conducting an exit inventory and taking back possession of the premises and keys . Similarly, if a tenant retains the ability to invoke the relative nullity of a notice with refusal to renew the lease by opting to continue the lease, they may also waive it by requesting an eviction indemnity and remaining on the premises pending its payment in application of Article L. 145-28 of the Commercial Code .

Notice given by the lessee at the end of a three-year period by registered letter with acknowledgment of receipt: Cass. 3e civ., 8 June 1982, LawLex202200003222JBJ; 4 March 1992, LawLex202200003010JBJ; 24 January 1996, LawLex202200003021JBJ; CA Bordeaux, 6 February 2019, LawLex202200003016JBJ.

Cass. ass. plén., 17 May 2002, LawLex202100002970JBJ.

Cass. 3e civ., 20 December 1982, LawLex202200003017JBJ; 19 May 1993, LawLex202200003155JBJ; 18 May 1994, LawLex202200003156JBJ; 13 January 1999, LawLex202200002924JBJ; 27 June 2001, LawLex202200003018JBJ.

CA Rennes, 7 September 2022, LawLex202200007359JBJ.

Cass. 3e civ., 6 October 2016, LawLex202300001266JBJ.

Cass. 3e civ., 16 December 2014, LawLex202200002883JBJ.

CA Rennes, 12 June 2024, LawLex202400004503JBJ.

Cass. 3e civ., 24 January 1996, LawLex202200003021JBJ; 30 May 1996, LawLex202100003787JBJ; 4 May 2000, LawLex202200003020JBJ; 13 December 2000, LawLex202100003788JBJ.

Act No 2014-626 of 18 June 2014 on Craftsmanship, Commerce, and Very Small Enterprises, OJ of 19 June 2014.

Law No 2015-990 of 6 August 2015 for growth, activity, and equal economic opportunities, OJ of 7 August 2015.

For a notice given during the period of tacit extension: CA Grenoble, 9 September 2021, LawLex202200003009JBJ.

Cass. 3e civ., 9 March 2005, LawLex202200003153JBJ.

Cass. 3e civ., 18 June 2014, LawLex202300009669JBJ.

Cass. 3e civ., 24 October 2019, LawLex202200003015JBJ.

Cass. 3e civ., 5 November 2003, LawLex202100004626JBJ. - Cf. CA Bordeaux, 6 February 2019, LawLex202200003016JBJ, which excludes the liability of the lessor who does not have the status of a real estate professional.

Commercial Leases/Business Goodwill

201. Form of Termination Notice

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

201. Form of Termination Notice

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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