Commercial Leases/Business Goodwill

The benefit of the status of commercial leases requires the existence of a building or premises. Indeed, Article L. 145-1 of the Commercial Code establishes the principle that the status applies “to leases of buildings or premises in which a business is operated,” excluding movable property . While Article 518 of the Civil Code defines immovables by nature as “land and buildings,” Article L. 145-1 …

Characteristics of premises

The benefit of the status of commercial leases requires the existence of a building or premises. Indeed, Article L. 145-1 of the Commercial Code establishes the principle that the status applies “to leases of buildings or premises in which a business is operated,” excluding movable property . While Article 518 of the Civil Code defines immovables by nature as “land and buildings,” Article L. 145-1, I, 2° of the Commercial Code refers to “bare land on which constructions have been erected.” Therefore, immovable should be understood as all constructed buildings, excluding only bare land on which no construction has been erected.

Neither the Civil Code nor the Commercial Code define the notion of premises. It has been left to case law to clarify the contours of this concept. Early on, the Paris Court of Appeal defined premises subject to the status of commercial leases as an enclosed and covered space in which sales must take place , with the criteria of permanence and solidity not being required when it is a building existing at the time of the conclusion of the lease agreement . An enclosed and covered space should be understood as a volume delimited by a floor, walls, and a ceiling, which is part of a building . Thus, parking areas  or spaces delimited by simple light partitions at human height  cannot be subject to the status of commercial leases.

To be entitled by right to commercial lease status, the premises must be arranged in such a way as to be accessible to customers , an essential element of the existence of a commercial space. Such premises, referred to as “principal,” are distinguished from “ancillary” premises to which, conversely, customers do not have access, and do not constitute a point of sale , but which, under certain conditions, may benefit from the protection of the status . The principal premises thus constitute the place of operation of the tenant's commercial or artisanal activity.

Cass. 3e civ., 15 June 2004, LawLex202100001283JBJ, which excludes the application of the status of commercial leases to an “operating agreement” for equipment, movable property, capable of being dismantled, in exchange for “fees” and not rents in the legal sense of the term.

CA Paris, 14 November 1956, Gaz. Pal. 1956, 2, 400.

Unlike a lease on undeveloped land, for which the solidity and permanence of the constructions built by the lessee are required to allow them to benefit from the status of commercial leases: Cass. civ. 3e, 25 January 1977, LawLex202100001274JBJ.

See BLATTER, AJDI 1996, 46: “the premises, which are part of a building, thus a construction, are defined as a volume (delimited by a floor, walls, and a ceiling) and cannot be merely a surface, whether vertical or horizontal" [le local, qui est une partie d'un immeuble, donc d'une construction, se définit comme un volume (délimité par un sol, des murs et un plafond) et ne saurait se réduire à une surface, qu'elle soit verticale ou horizontale"] (Cass. 3e civ., 18 March 1992, LawLex202100001319JBJ.”

Cass. 3e civ., 18 March 1992, LawLex202100001319JBJ, according to which the rental of simple parking spaces, without independent access, separated from areas rented to third parties by painted lines on the ground, is not subject to the status of commercial leases.

Cass. 3e civ., 5 July 1995, LawLex202100003007JBJ, regarding a space in a shopping mall which furthermore does not benefit from its own clientele in the absence of independent management.

Cass. 3e civ., 19 September 2006, LawLex202100001280JBJ.

Cass. 3e civ., 12 July 1995, LawLex202100001278JBJ, according to which a premises accessible to customers where goods can be selected and purchases made cannot be classified as an ancillary premises.

See notably Cass. 3e civ., 22 October 1974, LawLex202100004698JBJ, which qualifies as the principal premises a shop given in sublease that constitutes a point of sale to which a clientele is attached and within which commercial acts related to the operation of the business are performed.

Commercial Leases/Business Goodwill

9. Characteristics of premises

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Les notions juridiques connexes

9. Characteristics of premises

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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