Commercial Leases/Business Goodwill

When the building must be totally or partially demolished due to its unsanitary condition recognized by the administrative authority or it can no longer be occupied without danger due to its condition, the landlord may refuse renewal without eviction compensation (Article L. 145-17, I, 2° Commercial Code). To deprive the tenant of eviction compensation, the state of peril must prohibit the continu …

Unhealthy or Dangerous Building

When the building must be totally or partially demolished due to its unsanitary condition recognized by the administrative authority or it can no longer be occupied without danger due to its condition, the landlord may refuse renewal without eviction compensation (Article L. 145-17, I, 2° Commercial Code). To deprive the tenant of eviction compensation, the state of peril must prohibit the continuation of the business operation. Thus, a landlord cannot avoid the obligation to pay compensation when the lease concerns divisible premises and the essential damages only affect the residential part, without any real danger threatening the business itself, whose activity can continue . Therefore, it is up to the trial court to determine whether the building concerned by the peril is distinct from the rest of the leased premises and whether its demolition affects the business operation . Even if divisible, the repossession of a premises can, nevertheless, be justified as long as proof is provided of the inevitable ruin of the neighboring building and the premises occupied by the tenant do not enjoy any architectural independence from the contiguous structure to which it is attached .

The landlord must not be the cause of the hazardous condition to benefit from the provisions of Article L. 145-17, I, 2° and avoid paying the eviction indemnity . The hazardous condition of the building must not result from their negligence, as the landlord is then required to compensate the tenant for the damage resulting from their eviction . However, it is up to the tenant, who claims the landlord's fault, to provide proof . Conversely, when restoring the building would incur expenses disproportionate to its value and would amount to a complete reconstruction, and this situation, although partly due to a lack of maintenance, is primarily the result of the building's age , the landlord may invoke the provisions of Article L. 145-17, I, 2°.

The lessor may invoke the provisions of Article L. 145-17, I, 2° at any time, during the notice, in the course of proceedings, and even after a judgment has definitively established the eviction indemnity . This refusal may even follow a refusal to renew the lease with eviction indemnity, as long as two orders, one of peril and the other of prohibition to inhabit, have been issued after this first refusal . Since the refusal of renewal based on Article L. 145-17, I, 2° concerns a factual situation related to the health and safety of persons, its validity is not affected by a previous notice with an offer of eviction indemnity or by the fact that the state of unhealthiness was previously known to the lessor .

The insalubrity  must be recognized by the public authority for the landlord to invoke it . When a prefectural order declares the state of insalubrity, its validity is beyond the control of the trial courts . The dangerous nature of the building, within the meaning of Article L. 145-17, I, 2°, only requires the existence of a danger for the occupants of the building. This does not include the imminence or proximity in time of its ruin . It is up to the landlord to prove the dilapidated and dangerous state of the building, which can be proven by any means. They may, in particular, produce, as evidence, the expertise and judicial decisions made on the same request filed by them against another tenant occupying a part of the building adjacent to the disputed premises . However, when the landlord proceeds with the demolition of the building without having its condition verified, they forfeit the possibility of demonstrating that it presents a dangerous nature allowing them to invoke the provisions of Article L. 145-17, I, 2° . The assessment of the dangerous nature of the building falls under the sovereign power of the trial courts , who must determine whether the building can or cannot be occupied without danger .

In the event of reconstruction by the owner of a new building including commercial premises, the tenant has, under the terms of Article L. 145-17, II, of the Commercial Code, a right of priority to lease in the reconstructed building, under the conditions provided by Articles L. 145-19 and L. 145-20. This right of priority is interpreted strictly and cannot be invoked in the absence of a refusal to renew the lease . Indeed, this right benefits only the lessee , to whom the lessor refuses renewal, provided that the reconstructed building includes premises intended to be leased commercially .

To benefit from the right of priority, the lessee must, pursuant to Article L. 145-19, upon leaving the premises or, at the latest, within three months thereafter, notify the owner of their intention to exercise this right, by extrajudicial act or by registered letter with acknowledgment of receipt, informing them of their new domicile, and, under penalty of forfeiture, notify any new change of domicile. Thus, a lessee complies with the requirements of the text when they have notified their intention to benefit from the right of priority to the former owner of the leased premises, as soon as they have been informed that the renovated premises have been made available to them, who had previously amicably transferred the building, included in an unhealthy block, to a renovation company . The owner must, before renting or occupying a new premises themselves, notify the tenant in the same manner that they are ready to grant them a new lease. In the absence of an agreement on the terms of the lease, these are determined judicially (Article L. 145-19, para. 2). After the three-month period granted to the lessee to decide or to seize the jurisdiction, which must be indicated in the notification, the owner may dispose of the premises (Article L. 145-19, para. 3).

The owner who does not comply with the provisions of Article L. 145-19 is liable, at the request of their tenant, to pay the latter damages (Art. L. 145-19, para. 4). Thus, the landlord who personally occupies the rebuilt premises in disregard of the tenant's rights commits a fault . If the damages owed by the landlord who does not respect the evicted tenant's right of priority are intended to compensate for the harm resulting from the violation of this right, there is no need, in determining the amount of the harm, to refer to the rules set out in Article L. 145-14 of the Commercial Code for calculating the eviction indemnity owed to the tenant whose lease has not been renewed .

Finally, the right of priority is limited to premises with an area equivalent to those previously occupied or capable of meeting the same commercial needs as the latter, when the rebuilt building has a larger area than the original building (Art. L. 145-20, para. 1, Commercial Code). When the rebuilt building does not allow for the reinstallation of all occupants, preference is given to tenants holding the oldest leases who have expressed their intention to occupy the premises (Art. L. 145-20, para. 1, Commercial Code).

Cass. 3e civ., 30 January 2002, LawLex202200003393JBJ.

Cass. 3e civ., 13 March 1991, LawLex202300011937JBJ.

Article L. 1331-22, para. 1, of the Public Health Code specifies that “any premises, installation, real property, or group of premises, installations, or real properties, whether vacant or not, that constitutes, either by itself or by the conditions in which it is occupied, operated, or used, a danger or risk to the health or physical safety of persons” is considered unsanitary. Para. 2 specifically addresses the presence of deteriorated coatings containing lead at concentrations exceeding the thresholds and conditions mentioned in Article L. 1334-2.

Cass. 3e civ., 31 October 1969, LawLex202300012129JBJ.

Cass. com., 17 November 1966, LawLex202300012135JBJ.

Cass. 3e civ., 1 February 2000, LawLex202300012130JBJ.

Cass. com., 28 November 1962, LawLex202200006582JBJ.

Cass. 3e civ., 9 January 1991, LawLex202200003383JBJ.

Cass. 3e civ., 11 February 1971, LawLex202300012131JBJ.

Cass. 3e civ., 7 February 1978, LawLex202200003323JBJ.

Cass. 3e civ., 22 March 1977, LawLex202300012133JBJ, according to which the right provided for in Articles L. 145-17 and L. 145-20 of the Commercial Code is reserved exclusively for tenants, and not for the former lessee who, having become the owner of the building, has permanently lost the rights attached to their status as a tenant.

Cass. com., 28 November 1962, LawLex202200006582JBJ, according to which it is evident that a building, of which two out of four walls are constituted by those of an adjoining house threatened with collapse, can no longer itself be occupied without danger due to its condition.

Cass. com., 11 December 1961, LawLex202300012132JBJ.

Cass. 3e civ., 13 May 1969, LawLex202200006580JBJ.

Cass. 3e civ., 5 April 1978, LawLex202200003319JBJ.

Cass. 3e civ., 17 April 1985, LawLex202200003391JBJ.

Cass. 3e civ., 24 October 1990, LawLex202300011938JBJ.

Cass. 3e civ., 28 May 1997, LawLex202300011940JBJ.

Cass. com., 27 November 1963, LawLex202300011939JBJ.

Cass. 3e civ., 4 June 1973, LawLex202300011941JBJ: in this case, subsequent to the judgment definitively establishing the eviction indemnity, the lessor invoked the new fact constituted by the prefectural order declaring the building completely uninhabitable, day and night, immediately.

Cass. com., 12 June 1967, LawLex202300011942JBJ.

Cass. 3e civ., 9 July 1973, LawLex202300011943JBJ.

Commercial Leases/Business Goodwill

238. Unhealthy or Dangerous Building

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238. Unhealthy or Dangerous Building

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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