Commercial Leases/Business Goodwill

The exercise of the right of withdrawal requires that the tenant is still in the leased premises and has not already rented or purchased another property intended for relocation (Art. L. 145-58 Commercial Code). The conditions set by Article L. 145-58 of the Commercial Code are alternative and not cumulative . The absence of one of them renders the right of withdrawal inadmissible. Thus, if the le …

Staying on the premises/purchase or rental of another building

The exercise of the right of withdrawal requires that the tenant is still in the leased premises and has not already rented or purchased another property intended for relocation (Art. L. 145-58 Commercial Code). The conditions set by Article L. 145-58 of the Commercial Code are alternative and not cumulative . The absence of one of them renders the right of withdrawal inadmissible. Thus, if the lessee is still in the premises, the purchase of land after the refusal of renewal, which has acquired a certain date before the notification of the right of withdrawal, is enforceable against the lessor, without taking into account the date of determination of the eviction indemnity .

The fact that the tenant has initiated an irreversible process of vacating the premises is sufficient to prevent the landlord from exercising the right of withdrawal , whether or not the landlord was aware of such a process on the day of its notification . The regularity of the tenant's departure falls under the sovereign assessment of the trial court , which cannot invalidate the landlord's exercise of the right of withdrawal when they have observed that on the day of exercising this right, the moving operations undertaken by the tenant were not completed and the keys to the rented premises had not been returned . Even if the tenant is not required to inform the landlord of their departure, the landlord must be free from any abuse of rights on their part. In particular, the departure from the premises should not be considered as decided with abnormal haste . It is incumbent upon the landlord to prove that the tenant's departure was knowingly organized with the intent to thwart the right of withdrawal .

2) Purchase or lease of another building intended for its relocation

The lessor, who can no longer avoid paying the eviction indemnity when the lessee has already rented or purchased another building intended for their relocation, cannot, under the guise of offering a new lease on the same premises, indirectly recover a right of withdrawal they have lost and thus thwart the full compensation for the actual damage suffered . This applies when, simultaneously with the refusal to renew the lease, the lessee has taken the initiative to construct a building for apartment and workshop use, to transfer their activity there while retaining their clientele , when a real estate project has been launched to allow the rehousing of the evicted lessee, even if the steps were taken by a third party, as long as they were conducted in their interest , or in the case of purchasing land after the refusal, which has acquired a certain date before the notification of the right of withdrawal and is enforceable against the lessor . Whatever its form, this arrangement must be the direct consequence of the refusal to renew . If an identical relocation in equivalent premises is not required, Article L. 145-58 does not impose that these new premises be intended for the same use . The lessee is also not prohibited from making a contractual commitment on a new premises before the date for which the notice was given, provided they do not commit any abuse of rights intended to thwart the lessor's right of withdrawal . To assess the relocation method adopted by the lessee, one must consider the date on which they acquired their rental rights on another premises intended for their relocation . Therefore, it is imperative that on the day the lessor exercises their right of withdrawal, the purchase or rental act has a certain date and that the lessee is definitively contractually committed . A promise of sale with suspensive conditions does not constitute such a commitment . However, when the essential elements of the assignment of the leasehold right are determined in the promise and the fulfillment of the suspensive condition has made the sale perfect on a certain date, the exercise of the right of withdrawal by the lessor, on a later date, is considered late .

Its mode of administration differs depending on whether the landlord has the status of a merchant or not. When this is the case, proof of the prior act, concluded by the tenant for the purpose of relocation, can be provided by any means . Conversely, if the landlord does not have the status of a merchant, proof of the date of the lease, which must be prior to the notification of the right of withdrawal , can only be provided under the conditions of Article 1377 of the Civil Code . In the event that this act has not acquired a certain date, it may nevertheless be enforceable against the landlord if it is demonstrated that they were actually aware of it . However, the landlord's information, before exercising their right, cannot be inferred from the tenant's regularly recorded purchase of shares in a third-party company, as this is a separate transaction from the conclusion of the lease .

Cass. 3e civ., 14 November 1996, LawLex202300011783JBJ.

Cass. 3e civ., 24 April 1970, LawLex202300011782JBJ.

Cass. 3e civ., 6 July 2022, LawLex202300011784JBJ.

Cass. 3e civ., 26 January 1994, LawLex202300011791JBJ.

Cass. 3e civ., 11 February 1971, LawLex202300011790JBJ, which holds that when the lessee, who has exercised the option to purchase included in the lease he relies on, can, if he wishes, conduct a commercial activity there, the lessor cannot require him to prove that this lease has a commercial nature.

Cass. 3e civ., 11 February 1971, LawLex202300011790JBJ.

Cass. 3e civ., 28 March 1979, LawLex202300011789JBJ.

Cass. 3e civ., 27 February 1991, LawLex202300011794JBJ, which holds, in this case, that the simple declaration by the lessee, in the summons, of their intention to accept the refusal to renew the lease and to relocate elsewhere “immediately” is not sufficient.

Cass. 3e civ., 16 February 2000, LawLex202300011795JBJ: in this case, the lessee did not establish having obtained the planning certificate nor the non-exercise of a right of preemption, which constituted the two other conditions precedent to which the sale was subject.

Cass. 3e civ., 3 July 2013, LawLex202300011793JBJ.

Cass. 3e civ., 29 November 2005, LawLex202100001316JBJ, which quashes the appeal decision that holds, to declare enforceable against the lessee the exercise of the right of withdrawal notified by the lessor, that none of the elements on which the tenant relies to establish the priority of the new lease concluded by him meets the requirements of Article 1328 of the Civil Code, whereas with respect to merchants, the date of a commercial act may be proven by any means.

Cass. 3e civ., 1 October 2014, LawLex201400001001JBJ: when the economic dismissal of employees has not occurred by the date of exercising the right of withdrawal and the lessee does not establish having liquidated his stock, signed a new lease for his relocation, or purchased a building for this purpose, he has not initiated an irreversible process of vacating the premises that would prevent the lessor from exercising the right of withdrawal.

Cass. 3e civ., 29 June 1976, LawLex202300011796JBJ.

Cass. 3e civ., 13 June 2007, LawLex202300011797JBJ.

Cass. 3e civ., 6 January 1972, LawLex202300011798JBJ, which quashes the appeal decision that holds, to reject the landlord's late exercise of the right of withdrawal, raised by the tenant, who invokes an act executed for his relocation, that the original and entire text of the agreement in question was not communicated to the landlord, without investigating whether proof of the landlord's knowledge of the substance of the act does not result from the parties' submissions and other procedural documents prior to the exercise of the right of withdrawal.

Cass. 3e civ., 15 December 2021, LawLex202200002340JBJ, which quashes the appeal decision that holds, to declare the exercise of the right of withdrawal valid, that it is not established that, on the day of its notification, the lessor was aware of an irreversible process of vacating the leased premises, whereas the initiation of such a process by the lessee is sufficient to prevent the exercise of the right of withdrawal by the lessor.

Cass. 3e civ., 17 January 1979, LawLex202300011785JBJ, which approves the trial court for having held that the lessee had to cease their commercial activity after the death of their spouse due to a long-term illness requiring the presence of a third party, so that their departure could not be considered as decided with abnormal haste likely to constitute an abusive exercise of their right.

Cass. 3e civ., 27 November 2002, LawLex202300011786JBJ.

Cass. 3e civ., 17 January 1979, LawLex202300011785JBJ; 15 May 1991, LawLex202300011788JBJ.

Cass. 3e civ., 18 May 2004, LawLex202300011787JBJ.

Commercial Leases/Business Goodwill

232. Staying on the premises/purchase or rental of another building

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232. Staying on the premises/purchase or rental of another building

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Les décisions de justice citées dans ce paragraphe :

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