Commercial Leases/Business Goodwill

Under paragraphs 2 and 3 of Article L. 145-5 of the Commercial Code, a new lease subject to the status of commercial leases is formed when, upon the expiration of the derogatory lease, “and no later than one month after the expiration, the lessee remains and is left in possession” of the premises, and “in the event of an express renewal of the lease or the conclusion, between the same parties, of  …

New lease

Under paragraphs 2 and 3 of Article L. 145-5 of the Commercial Code, a new lease subject to the status of commercial leases is formed when, upon the expiration of the derogatory lease, “and no later than one month after the expiration, the lessee remains and is left in possession” of the premises, and “in the event of an express renewal of the lease or the conclusion, between the same parties, of a new lease for the same premises” . A ministerial response, dated 4 July 1994, specified that, in this case, “the duration of this lease cannot be less than nine years and the lessee is entitled to the benefit of commercial property” .

The creation of a new lease raises the question of meeting the conditions of application set out in Article L. 145-1 of the Commercial Code, particularly regarding the operation of the business. Indeed, the Court of Cassation considers that if, upon the expiration of a derogatory lease, a lessee remains and is left in possession of the premises and a new lease is formed whose effect is governed by the provisions relating to commercial leases, it is only on the condition that the lessee operates a business on the leased premises . This is not the case for premises that do not constitute the place of business operation or are not essential to the operation of such a business . In the case of multiple lessees, all co-holders of the derogatory lease who remain in the premises where a business is operated are bound by the new lease, whether or not they are personally operating the business , except for the co-lessee who did not remain in possession of the premises at the expiration of the lease . Furthermore, the condition related to the premises must also be met. Thus, a parking area, which is not a premise within the meaning of Article L. 145-1 of the Commercial Code, cannot be the subject of a new statutory lease when the lessee is left in possession, unless the lessor has unequivocally waived this cause of inapplicability of the status . Finally, since the lessee's registration in the trade and companies register is only a condition for the application of the status upon the renewal of the commercial lease within the meaning of Article L. 145-8 of the Commercial Code, an unregistered lessee can become the holder of a new nine-year lease, subject to the status of commercial leases, when they are left in possession of the commercial premises at the expiration of the derogatory lease .

The statutory rules being applicable, the new lease is subject to the same clauses and conditions as the expired lease , provided, however, that they are not contrary to the provisions of the status of commercial leases . Thus, a commercial lease that commenced upon the expiration of a previous derogatory lease, and whose charges and conditions conform to the latter, cannot include a clause stipulating a term of less than nine years . Regarding the rent, by a judgment of 14 December 2005 , the Court of Cassation established the jurisprudential solution according to which “the rent of the new lease, taking effect at the end of the derogatory lease, must correspond, in the absence of agreement between the parties, to the rental value” of the leased premises, so that Article L. 145-11 of the Commercial Code does not apply .

In terms of suretyship, the surety's obligation to cover is limited to the performance of the derogatory lease and does not extend, upon its expiration, to the new lease unless the parties have decided otherwise , and notably in the absence of a clear and unequivocal intention by the sureties to extend their commitment .

Finally, if the two-year limitation period, as provided for in Article L. 145-60 of the Commercial Code, applies to the action for rent determination , it does not apply to the request to establish the existence of a lease subject to the status arising from the tenant's continued possession at the end of the derogatory lease, resulting from Article L. 145-5 of the Commercial Code .

Cass. 3e civ., 8 June 2017, LawLex202100003004JBJ; Also see Cass. 3e civ., 25 October 2018, LawLex202100001388JBJ.

Cass. 3e civ., 20 December 1977, LawLex202200002029JBJ.

Cass. 3e civ., 14 December 2005, LawLex202200002048JBJ.

CA Paris, 22 February 2024, LawLex202400001798JBJ.

Cass. 3e civ., 28 November 2012, LawLex202200002049JBJ, in this case, the guarantors' commitment could not be extended to the new lease resulting from the tenants remaining in the premises upon the expiration of the short-term lease, since the handwritten note copied by the guarantors in each guarantee deed indicated the duration of their commitment corresponding to the duration of the short-term lease and its possible renewal; See also Cass. 3e civ., 15 December 2016, LawLex202200002050JBJ.

Cass. 3e civ., 23 May 2013, LawLex202100002999JBJ, in this case, the judges noted that the guarantee act specifically referred in bold type to the short-term lease and any potential assignments of this lease, as well as the express or tacit renewal of said lease and the occupancy agreements that would succeed it, and inferred the absence of the guarantors' intent from the lack of express mention regarding the extension of their commitment to the commercial lease that could follow the short-term lease, and from the fact that the guarantors, not being legal professionals, were not necessarily informed that a nine-year lease would replace the short-term lease upon its expiration, in the event of the tenant remaining on the premises.

Cass. 3e civ., 7 July 2016, LawLex202200002051JBJ, the biennial prescription period starting from the date on which the request for application of the status is made by either party.

Cass. 3e civ., 1 October 2014, LawLex202100001444JBJ; See also Cass. 3e civ., 13 May 2015, LawLex202100003523JBJ. – See also Aix-en-Provence, 22 February 2024, LawLex202400001809JBJ, which specifies that the request to establish the existence of a lease subject to the status arising from the tenant's continued possession following an interim lease, which results solely from the effect of Article L. 145-5 of the Commercial Code, is not subject to prescription.

Cass. 3e civ., 16 June 2004, LawLex202100001348JBJ.

Cass. 3e civ., 24 June 2009, LawLex202100002993JBJ: Since the leased premises do not constitute the place of operation of a business or are not essential to the operation of such a business, the new lease that took effect upon the expiration of the derogatory lease, and concerning the premises, does not benefit from the status of commercial leases.

Cass. 3e civ., 23 May 2013, LawLex202100002999JBJ.

Cass. 3e civ., 6 April 2011, LawLex202200001981JBJ: The lease subject to the status of commercial leases that takes effect upon the expiration of a derogatory lease can only bind the tenants who have actually remained and been left in possession, and not all the tenants of the derogatory lease.

Cass. 3e civ., 6 April 2011, LawLex202200001982JBJ, in this case, the landlord's waiver of a cause of inapplicability of the status cannot unequivocally result from the conclusion of a short-term lease.

Cass. 3e civ., 25 October 2018, LawLex202100001388JBJ.

Cass. 3e civ., 6 November 2001, LawLex202200002027JBJ: In the absence of a new agreement between the parties, a new nine-year lease takes effect upon the expiration of the derogatory lease under the same terms and conditions as the expired lease, provided that the tenant has remained in possession of the premises.

Nîmes, 17 September 1996, No 95/1325: Therefore, if, upon the expiration of a derogatory lease, the lessee remains in possession of the premises, a new lease is established, governed by the protective provisions of commercial leases, and the clauses of the original lease survive if they do not contradict mandatory legal provisions; See also Cass. 3e civ., 23 March 2011, LawLex202200002028JBJ, according to which a court of appeal that holds that upon the expiration of the derogatory lease, a new lease, subject to the status of commercial leases, has been established, rightly concludes that the notice must, in accordance with the mandatory provisions of the status before Law No 2014-626 of 18 June 2014, be given by extrajudicial act under penalty of nullity, and not by registered letter with acknowledgment of receipt as stipulated in the initial lease; Riom, 5 June 2024, LawLex202400004245JBJ, which specifies that the lease contract continues under the same conditions and clauses provided, except for those that would be incompatible, so that the designation of the rented premises remains the same as initially provided.

Commercial Leases/Business Goodwill

62. New lease

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62. New lease

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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