Commercial Leases/Business Goodwill

The renewed lease constitutes a new lease  and not an extension of the previous lease , even if it is concluded under the terms and conditions of the former contract .
In the absence of an agreement to the contrary, the renewal of the commercial lease is carried out under the terms and conditions of the expired lease, except for the power granted to the judge regarding price determination . Indeed …

Conclusion of a new lease

The renewed lease constitutes a new lease  and not an extension of the previous lease , even if it is concluded under the terms and conditions of the former contract .

In the absence of an agreement to the contrary, the renewal of the commercial lease is carried out under the terms and conditions of the expired lease, except for the power granted to the judge regarding price determination . Indeed, the Court of Cassation, seized with a priority question of constitutionality, recalled that this rule does not apply to the rent, which is set according to the provisions of Articles L. 145-33 and L. 145-34 of the Commercial Code . However, no court has the power to modify even ancillary clauses of the commercial lease to be renewed , whose legality is not disputed .

The parties may choose not to retain the clauses and conditions of the expired lease. However, the inclusion of clauses derogating from the status of commercial leases in the renewed lease requires the agreement of the parties. This is the case for the clause prohibiting the lessee from any option of terminating the lease every three years, for which their consent is required . It is also possible to exclude only certain clauses from the original lease, such as the right of first refusal clause, which was stipulated in favor of the lessee, in the event of a sale, only for the duration of the initial lease . Finally, since the renewal of the lease is incompatible with the restoration of the premises to their original condition, the accession clause, which offers the lessor the option to require the return of the leased premises to their initial state, can only apply at the end of the contractual relationship and not at the end of the lease to be renewed .

The renewed lease must, in principle, retain the object of the expired lease and cover the same premises. Thus, when the object concerns a vacant land, the renewed lease can only cover that same land . Similarly, in the case of multiple premises, the new lease must necessarily cover all of these premises. Indeed, the Court of Cassation considers that the lessee, who requests the renewal of their lease, is entitled, unless there are serious and legitimate reasons, either to this renewal for all the premises or to compensation corresponding to the damage suffered by them due to their eviction, as the partial recovery of the leased premises can only be exercised for those of the leased premises used for habitation . However, when there is no material or conventional indivisibility between the premises, the conclusion of a single lease is not sufficient to allow the main tenant to obtain the total renewal of their lease, so they cannot claim a right to renewal on the part of the subleased premises in which their business is not operated . Furthermore, if the premises must retain the same purpose, the lessor, who is obliged to ensure the lessee's peaceful enjoyment of the leased property, cannot, upon renewal, impose a restriction on this enjoyment not provided for in the expired lease .

A new lease is established once the parties agree on the amount of the rent for the renewed lease. In case of disagreement and recourse to the judge, Article L. 145-57, para. 2, of the Commercial Code provides that the parties must draw up a new lease under the conditions set by the final decision within one month following its notification. If the lessor does not send a draft lease in accordance with the decision to the lessee for signature within this period, or if there is no agreement within one month of this sending, the order or judgment setting the price or conditions of the new lease serves as the lease.

Finally, under the terms of Article L. 145-12, paras. 1 and 2, of the Commercial Code, the duration of the renewed lease is nine years, unless the parties agree to a longer period. The new lease takes effect from the expiration of the previous lease, or, if applicable, from its extension. In this case, the start date of the new lease is either the date for which notice was given, or, if a renewal request has been made, the first day of the calendar quarter following this request. However, when the lessor has notified, either by notice or by refusal to renew, their intention not to renew the lease, and subsequently decides to renew it, the new lease takes effect from the day this acceptance was notified to the tenant by extrajudicial act or by registered letter with acknowledgment of receipt (Article L. 145-12, para. 3).

Cass. 3e civ., 26 November 1985, LawLex202200007178JBJ.

Cass. 3e civ., 29 October 1986, LawLex202300011150JBJ.

Cass. 3e civ., 3 February 1988, LawLex202300011153JBJ.

Cass. com., 1 December 1966, LawLex202300011154JBJ.

Cass. 3e civ., 7 July 1993, LawLex202200009886JBJ: in this case, the subleased premises were completely independent from the rest of the building, and the main tenant had been specifically authorized to sublease the shop for an activity distinct from their own.

Cass. 3e civ., 13 November 1979, LawLex202300011156JBJ.

Cass. 3e civ., 24 November 1999, LawLex202300011151JBJ.

Cass. 3e civ., 17 May 2006, LawLex202300011152JBJ.

Cass. 3e civ., QPC, 6 February 2020, LawLex202200000357JBJ.

Cass. 3e civ., 6 March 1991, LawLex202200003445JBJ.

Cass. 3e civ., 12 October 1982, LawLex202300011157JBJ.

Cass. 3e civ., 7 September 2022, LawLex202200008698JBJ.

Cass. 3e civ., 13 July 1994, LawLex202200003359JBJ.

CA Caen, 20 June 2024, LawLex202400004732JBJ.

Commercial Leases/Business Goodwill

219. Conclusion of a new lease

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Les notions juridiques connexes

219. Conclusion of a new lease

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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