Commercial Leases/Business Goodwill

Under Article L. 145-5, para. 1, of the Commercial Code, “the parties may, when the tenant enters the premises, derogate from the provisions [relating to the status of commercial leases] provided that the total duration of the lease or successive leases does not exceed three years.”

To benefit from this exceptional regime, the parties must clearly and unequivocally express their common intention  …

Agreement of the parties

Under Article L. 145-5, para. 1, of the Commercial Code, “the parties may, when the tenant enters the premises, derogate from the provisions [relating to the status of commercial leases] provided that the total duration of the lease or successive leases does not exceed three years.”

To benefit from this exceptional regime, the parties must clearly and unequivocally express their common intention to exclude the rules related to the protection mechanism of Articles L. 145-1 and following of the Commercial Code . This intention may result from an express stipulation . When the lease does not expressly exclude the statutory rules, since the parties' intention to conclude a short-term lease is not presumed, it is up to the judges to ascertain the common intention to opt for the exceptional mechanism of Article L. 145-5, as setting the lease duration for a period of less than two years, three since the Pinel Law of 18 June 2014, is not sufficient to establish it . Even though it is rarely upheld, tacit intention may be admitted in certain cases .

Although paragraph 1 of Article L. 145-5 of the Commercial Code provides for the possibility of concluding a short-term lease “when the tenant takes possession of the premises,” the Court of Cassation considers that it is not necessary for such an agreement to have been materially established at the very moment the tenant takes possession . The term “taking possession of the premises” does not refer to the first date on which the tenant enjoys the premises. In reality, taking possession as stated in paragraph 1 of Article L. 145-5 refers to the assumption of possession of the premises in execution of the short-term lease, even if the tenant had previously occupied them under an expired title . Thus, the parties can conclude a short-term lease even if the tenant had previously occupied the premises under a sublease agreement , as the status of subtenant does not confer any rights under the commercial lease status . The parties can even validly conclude a short-term lease while the premises in question were previously subject to a commercial lease between the same parties, which was terminated following the issuance of a notice by the tenant at the second three-year term .

In accordance with paragraph 1 of Article L. 145-5 of the Commercial Code, the lessor and lessee may enter into a short-term lease “provided that the total duration of the lease or successive leases does not exceed three years.” For the calculation of the three-year period, the previous period during which the lessee occupied the premises under another title that has since expired is not taken into account . While Article L. 145-5 is inapplicable to leases exceeding three years, it is possible to provide for a shorter duration.

Finally, no text requires the parties to a derogatory lease to use a particular form, although a written form is recommended.

Cass. 3e civ., 8 April 2021, LawLex202200001959JBJ, in this case, the common intention of the parties was to conclude a short-term lease to allow the lessee, before signing a future lease subject to the status of commercial leases, to fit out the interior of a premises for the future operation of a beer bar.

Cass. 3e civ., 8 April 2021, LawLex202200001959JBJ, previously cited, in this case, the lessee had, as a decisive clause, expressly waived the status, in addition to the formal notice to return the premises, sent by the lessor at the end of the lease.

Cass. 3e civ., 2 February 2005, LawLex202100002987JBJ.

Cass. 3e civ., 8 November 1972, LawLex202200001747JBJ, regarding a lease with a duration of two years, accompanied by a non-compete clause prohibiting the tenant, upon expiration of this period, from operating a similar business within a radius of five hundred meters and for five years; See also Paris, 17 February 2016, LawLex202200001746JBJ, in this case, the parties had signed a lease for a limited duration of one year with the option to terminate at any time by registered letter with acknowledgment of receipt, respecting a three-month notice period, with the possibility of requesting an extension for three-month periods, without exceeding four extensions, so that the agreement expires after a maximum period of two years. The tenant had also admitted that the agreement was not governed by the provisions of Articles L. 145-1 et seq. of the Commercial Code, expressly acknowledging, upon expiration of the agreement, not having the right to commercial property, contract renewal, or payment of eviction compensation.

Cass. 3e civ., 9 December 2008, LawLex202100002988JBJ; Also see Cass. 3e civ., 25 June 1975, LawLex202100002989JBJ.

Cass. 3e civ., 2 March 2017, LawLex202100003000JBJ.

Cass. 3e civ., 15 April 1992, LawLex202100002990JBJ.

Cass. 3e civ., 30 March 2017, LawLex202100003002JBJ.

Cass. 3e civ., 1 February 2018, LawLex202100003005JBJ.

Cass. 3e civ., 2 March 2017, LawLex202100003000JBJ, already cited; Cass. 3e civ., 30 March 2017, LawLex202100003002JBJ, previously cited; Cass. 3e civ., 1 February 2018, LawLex202100003005JBJ, previously.

Commercial Leases/Business Goodwill

57. Agreement of the parties

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57. Agreement of the parties

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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