Commercial Leases/Business Goodwill

Under the terms of Article L. 145-2, I, 1° of the Commercial Code, the provisions relating to the status of commercial leases apply “to leases of premises or buildings housing educational establishments.” Such leases are automatically subject to the status, regardless of the legal form under which the tenant conducts its activity , and regardless of the education provided . Thus, an association ca …

Educational institution

Under the terms of Article L. 145-2, I, 1° of the Commercial Code, the provisions relating to the status of commercial leases apply “to leases of premises or buildings housing educational establishments.” Such leases are automatically subject to the status, regardless of the legal form under which the tenant conducts its activity , and regardless of the education provided . Thus, an association can benefit, as a sports education establishment, from the protection of commercial leases . Registration in the trade and companies register of the company operating an educational activity is not required . However, the educational establishment must meet certain conditions to benefit from the protective regime of Articles L. 145-1 et seq. of the Commercial Code.

First, the existence of a genuine teaching establishment , which relies on an organized pedagogy and implements a real teaching organization, must be demonstrated . Thus, a tenant who does not establish the organization of a curriculum provided by professors with appropriate diplomas and leading to examinations does not conduct a teaching activity in the rented premises and does not benefit from the status of commercial leases . Conversely, a psychological rehabilitation institute constitutes a genuine teaching establishment, as it is also identified as a college and managed by the tenant association, providing courses in the rented premises to maladjusted children of normal or subnormal intelligence, with character and behavioral disorders, the teaching being provided by full-time teachers from the National Education and paid by it . Beyond the nature of the teaching provided, the question arose as to whether examinations leading to a diploma are a necessary condition for the qualification of a teaching establishment. It was judged that the fact that an association, which organizes group tennis and fitness classes only for its members, does not issue a diploma, does not undermine its status as a teaching establishment as long as the teaching of sport for leisure purposes, the association's objective, is unrelated to the issuance of a diploma . The application of this provision also requires that teaching be provided permanently, at least in part, in the rented premises , specially arranged for this purpose .

Then, the lessee must be the owner of the teaching business operated on the leased premises, otherwise they cannot invoke the right to renew the lease under Article L. 145-8 of the Commercial Code . The same applies to the assignee in the event of a regular transfer of the lease right .

Finally, the lessee must have received the necessary administrative approval to operate an educational establishment . It is up to the judges to determine whether the education provided in the rented premises requires administrative authorization , and for the lessee to justify obtaining such authorization . In certain cases, the application of the status is subject to the filing of a declaration with the Administration . Failure to comply with administrative formalities, in accordance with the legislation in force and related to the operation of an educational establishment, prevents the application of Articles L. 145-1 et seq. of the Commercial Code .

Cass. 3e civ., 21 February 2007, LawLex202100001462JBJ.

Cass. 3e civ., 11 June 1992, LawLex202100001457JBJ, regarding the operation of a driving school; See Cass. 3e civ., 14 January 2004, LawLex202100001459JBJ, concerning a dance school; Also see Cass. 3e civ., 21 July 1999, LawLex202200000432JBJ, concerning an equestrian center.

Cass. 3e civ., 11 June 1992, LawLex202100001457JBJ.

Cass. 3e civ., 5 January 1978, LawLex202200000430JBJ, previously cited: an association supporting a school, operated in contiguous buildings, cannot claim the right to renew its lease, insofar as it does not operate the educational establishment, which is managed and directed by another association with no legal connection to the lessor; See also Cass. 3e civ., 16 December 1980, LawLex202200000431JBJ, according to which the provisions relating to the status of commercial leases apply to the lease of premises housing an educational establishment only if this establishment belongs to the lessee.

Cass. 3e civ., 21 July 1999, LawLex202200000432JBJ.

Cass. 3e civ., 11 June 1992, LawLex202100001457JBJ, regarding a driving school.

Cass. 3e civ., 16 February 2000, LawLex202100001458JBJ, concerning premises in which the lessee organizes drawing and graphic arts classes.

Cass. 3e civ., 10 December 1997, LawLex202200000512JBJ, in this decision, the lessee justifies having obtained the prefectural approval for operating a driving school in the rented premises.

Cass. 3e civ., 14 January 2004, LawLex202100001459JBJ, previously cited, regarding a dance school; Also see Cass. 3e civ., 4 February 2009, LawLex202100001463JBJ, concerning a physical and sports activity establishment.

Cass. 3e civ., 4 February 2009, LawLex202100001463JBJ, according to which the fact that a landlord of premises housing an educational establishment invokes, to deny the tenant the benefit of the right to renew their lease, the new regulation requiring the holder of an authorization issued under the former legislation to make a new declaration to the prefecture within a certain period, does not constitute a disproportionate infringement of the right to commercial property recognized for tenants under the provisions of Article 1 of Protocol No 1 to the European Convention on Human Rights.

CA Paris, 8 September 2010, LawLex202200000361JBJ.

Cass. 3e civ., 5 January 1978, LawLex202200000430JBJ; Also see, Cass. 3e civ., 21 July 1999, LawLex202200000432JBJ.

Cass. 3e civ., 5 September 2012, LawLex202100001465JBJ.

Cass. 3e civ., 17 May 2005, LawLex202100001461JBJ.

Cass. 3e civ., 26 February 1992, LawLex202100001456JBJ, regarding an association conducting distance learning activities.

Commercial Leases/Business Goodwill

42. Educational institution

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42. Educational institution

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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