Commercial Leases/Business Goodwill

Seasonal rental, as its name suggests, is granted for a season corresponding to a period of high economic activity and involves premises generally located in a tourist area, whose use is necessarily allocated to the associated clientele. Although the provisions relating to the status of commercial leases do not apply to it, seasonal rental is nevertheless covered by Article L. 145-5 of the Commerc …

Seasonal rentals

Seasonal rental, as its name suggests, is granted for a season corresponding to a period of high economic activity and involves premises generally located in a tourist area, whose use is necessarily allocated to the associated clientele. Although the provisions relating to the status of commercial leases do not apply to it, seasonal rental is nevertheless covered by Article L. 145-5 of the Commercial Code, which regulates the short-term lease. According to paragraph 4, “the provisions of the two preceding paragraphs do not apply if it is a seasonal rental,” referring to a new lease subject to Articles L. 145-1 and following of the same code, which is concluded either when the tenant remains in the rented premises at the expiration of the short-term lease, or upon its renewal, or simply in the event of the conclusion of a new agreement concerning the same premises. Since the status is inapplicable to the tenant who remains in the premises at the end of their lease, case law allows a seasonal rental to be renewed each year without the lease transforming into a commercial lease, which distinguishes it from the short-term lease .

Seasonal rental is characterized by its temporary duration , as well as by the return of the premises at the end of the season , with the mere tolerance of the lessor allowing the lessee to access the premises outside the season  having no impact on the seasonal nature. A seasonal rental is notably characterized by the rental of a premises housing a ready-to-wear retail business that is only operated by the occupants from Easter to September, as the gallery in which this business is located is closed in the meantime , or the rental of places cleared of goods whose keys were returned at the end of the season, with the occupant retrieving them at the beginning of the next season . The conditions under which the rent is set or the subscription to service contracts for the rented premises  also constitute, beyond the temporary nature of the occupation, criteria for assessing the seasonal nature of the rental.

The protection mechanism for commercial leases not being applicable to seasonal rentals, the tenant does not benefit from a right to renewal or an eviction indemnity. Seasonal rentals are subject to the rules relating to the civil lease of common law under Articles 1708 et seq. of the Civil Code, as well as the parties' agreement. However, case law distinguishes purely seasonal rentals, where the tenant only enjoys the premises during the season, with the landlord reclaiming them between seasons, from continuous rentals with seasonal operation, where the tenant has continuous use of the premises even though their activity is only seasonal, to which the status of commercial leases applies. Thus, contracts referred to as seasonal rentals fall under the status of commercial leases when tenants retain use of the premises throughout the year, store goods between operating periods, pay telephone, water, electricity, and insurance bills on an annual basis, pay taxes and charges based on a year-round rental, and the handover of keys at the end of each operating period is clearly fictitious , or when the enjoyment of the premises has continued without interruption, the tenant has kept possession of the keys since the signing of the first lease, has subscribed to annual telephone and electricity contracts and an annual insurance policy, hired an employee under a permanent contract, deliveries have been made to the rented premises outside the contractually agreed periods, and the cumulative annual rents correspond to the prices usually charged in the sector for an annual rental .

Cass. civ. 3e, 7 November 1990, LawLex202100002524JBJ; See also Cass. civ. 3e, 13 November 1979, LawLex202100002520JBJ, which considers that a seasonal rental is purely and simply renewed from year to year even if no commitment has been signed from the fourth year onwards, as long as the operating conditions and the payment of rent have remained unchanged.

Cass. 3e civ, 13 November 1979, LawLex202100002520JBJ, previously cited, regarding a seasonal rental lasting six months each year; Also see Cass. 3e civ, 22 May 1986, LawLex202100002521JBJ, concerning the seasonal rental granting occupants the use of a site from 15 June to 15 September each year; Conversely, CA Rennes, 12 November 1997, LawLex202200001504JBJ: a lessee holds a commercial lease as long as the various leases termed “seasonal” are separated from each other by an interval of only two months each year, corresponding at least in part to the closure period for holidays of many merchants.

Cass. 3e civ, 3 January 1978, LawLex202200001505JBJ, in this case, the keys were handed over to the lessor by the lessee at the end of each summer season after removing the stock of goods from the premises; See also Cass. 3e civ, 13 July 1999, LawLex202100002525JBJ, where the leased premises were cleared of goods and the keys handed over to the lessor at the end of the season, with the occupant retrieving them at the beginning of the following season.

Cass. 3e civ, 13 November 1979, LawLex202100002520JBJ, previously cited; See also Cass. 3e civ, 22 May 1986, LawLex202100002521JBJ, previously cited, concerning the storage of equipment outside the season only tolerated by the lessor; Also see Cass. 3e civ, 18 January 2011, LawLex202100002530JBJ, according to which the mere tolerance of the lessor who did not require the return of the premises at the end of several consecutive seasons, only serves to avoid the occupant having to move their equipment and remaining stock, without giving the agreement an annual character.

Cass. 3e civ, 19 April 2005, LawLex202100002527JBJ, in this case, the fact that the occupants kept the keys between two seasons and paid the telephone and electricity subscriptions annually does not constitute possession but merely a tolerance by the landlords who took the precaution of having them sign a document to that effect.

Cass. 3e civ, 13 July 1999, LawLex202100002525JBJ, already cited, in this case, the fact that the occupant had access to the premises following an attempted theft and the presence of the sign and furniture out of season, or even some goods, falls under a simple tolerance by the lessor due to the good relations between the parties, with the terms of subscription to telephone or insurance contracts having no impact on the actual occupation, which was not annual.

Cass. 3e civ, 3 January 1978, LawLex202200001505JBJ, previously cited; See also Cass. 3e civ, 7 November 1990, LawLex202100002524JBJ, already cited, regarding an electricity contract remaining in the landlord's name and a stipulated rent not corresponding to the one normally practiced for a year; Also see Cass. 3e civ, 19 July 1995, LawLex202200001424JBJ: Since the commercial operation was limited to the summer season and the rent, abnormally low for an annual period, was paid at the beginning of the season, a court of appeal justifies its decision by maintaining the seasonal nature of the lease, noting that if the tenant kept the key to the premises as a courtesy between seasons, the landlord, who remained the holder of the electricity supply contract, by calculating a share of the bills, had free access to the premises during the winter months, and that the telephone consumption was minimal during these months.

Cass. 3e civ, 15 February 2011, LawLex202100002531JBJ.

Cass. 3e civ, 10 June 1998, LawLex202100002591JBJ.

Commercial Leases/Business Goodwill

54. Seasonal rentals

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

54. Seasonal rentals

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