Commercial Leases/Business Goodwill

The amount of rent for renewed leases concerning premises used as offices is exempt, by application of Article R. 145-11 of the Commercial Code, from the capping rules set out by Article L. 145-34 and must be set at the rental value . Indeed, according to Article R. 145-11, para. 1, of the Commercial Code, “the rent for leases of premises used exclusively as offices is set by reference to the pric …

Rent for premises used as offices

The amount of rent for renewed leases concerning premises used as offices is exempt, by application of Article R. 145-11 of the Commercial Code, from the capping rules set out by Article L. 145-34 and must be set at the rental value . Indeed, according to Article R. 145-11, para. 1, of the Commercial Code, “the rent for leases of premises used exclusively as offices is set by reference to the prices charged for equivalent premises, unless adjusted in consideration of the differences observed between the leased premises and the reference premises.” Since these provisions are intended to apply to premises leased for exclusive office use, the fact that a landlord has never claimed the uncapping does not equate to a waiver of their right to invoke it .

Without truly defining the notion of premises for exclusive office use, the Court of Cassation provides indications through its decisions that clarify its contours. It has notably considered that this quality is not incompatible with the tenant receiving clients and suppliers there, as long as the premises are not used for storage or delivery of goods . It has also determined, for premises used as a bank, that the rules of capping should be set aside when the use of the premises by the tenant is in accordance with the office use intended by the lease and the essential accounting, administrative, or legal activity of the bank is not affected by the reception of clients . Thus, the rent of the renewed lease should be uncapped when the clause on the destination of the leased premises expressly and unambiguously refers to the nature of the premises, namely the offices and the tenant's activities, which are intellectual and administrative in nature . Conversely, premises cannot escape rent capping as premises leased for exclusive office use when the destination of the premises results not from the use made of them, but from the agreement of the parties, who have not only allocated the premises to an administrative and intellectual activity , when the activity provided for in the lease is “sale and rental of yachts, provisioning, fittings, insurance, management, boat guarding, and generally everything related to boats” , or when the contractual destination allows the reception of the public in the meeting room for various activities organized by the tenant for its clients, and the use of this room, not exclusively limited to the exercise of intellectual activity, cannot be conceived without the presence of clients, necessary for the activity itself . The same applies when the lease includes a clause expressly authorizing the tenant to assign their lease rights or sublet all or part of the premises for any business . Thus, it follows from the above that, to determine if premises are for exclusive office use, the terms of the lease must be considered, particularly the destination clause or the assignment and subletting clauses, insofar as the destination does not only concern the activity actually carried out but also extends to the activities for which an assignment or subletting option is granted .

The exclusive office use of the leased premises must be assessed as of the lease renewal date . The trial court has sovereign power to determine, in the absence of a lease provision, the intended use of the leased premises by the parties .

Cass. 3e civ., 25 February 1976, LawLex202300011353JBJ, according to which the reception of a clientele does not, in itself, exclude the application of Article R. 145-11 of the Commercial Code and does not remove the premises' status as an office; 6 April 1976, LawLex202300011355JBJ; CA Douai, 13 June 2024, LawLex202400004540JBJ.

Cass. 3e civ., 5 January 1993, LawLex202300011364JBJ; 20 September 2005, LawLex202300011363JBJ.

Cass. 3e civ., 1 April 2009, LawLex202300011357JBJ, op. cit.; CA Douai, 13 June 2024, LawLex202400004540JBJ, op. cit.

Cass. 3e civ., 31 January 1979, LawLex202300011361JBJ; CA Douai, 13 June 2024, LawLex202400004540JBJ, previously cited.

Cass. 3e civ., 6 April 1976, LawLex202300011355JBJ, op. cit.; CA Douai, 13 June 2024, LawLex202400004540JBJ, op. cit.

Cass. 3e civ., 13 November 1986, LawLex202300011356JBJ, which quashes the appeal decision that holds, to set the price of the renewed lease of premises used as a bank according to the capping rules, that currency exchange operations aimed at the anonymous crowd constituting the clientele of shops, or safe deposit box rentals, are unrelated to office work and that the change of use of the premises is authorized by the lease in the event of its transfer.

Cass. 3e civ., 1 April 2009, LawLex202300011357JBJ.

Cass. 3e civ., 14 June 1995, LawLex202300011358JBJ: in this case, the premises were “intended for use as offices for the business of the lessee, which is an advertising photography and photo library agency.”

Cass. 3e civ., 2 February 2010, LawLex202300011359JBJ, which quashes the appeal decision that holds, to state that there is a need for the removal of the cap on the new rent, that the nature of a lease is determined by the purpose mutually agreed upon by the parties, that in this case, the contracting parties intended the contractual purpose to be intermediary activities for the rental and sale of yachts, that it is a purely intellectual activity, that the leased premises have all the characteristics of offices, and that premises used exclusively as offices are exempt from the cap.

Cass. 3e civ., 7 December 2017, LawLex202300011360JBJ.

Cass. 3e civ., 11 February 2016, LawLex202300011362JBJ; CA Rennes, 3 April 2024, LawLex202400003086JBJ.

CA Douai, 13 June 2024, LawLex202400004540JBJ, op. cit.

Commercial Leases/Business Goodwill

225. Rent for premises used as offices

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

225. Rent for premises used as offices

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