Commercial Leases/Business Goodwill

The provisions relating to the status of commercial leases apply “to leases of premises or buildings” that are part of the private domain of public entities mentioned in Article L. 1 of the General Code of Public Property, “in cases where these premises or buildings comply with the provisions of Article L. 145-1” and subject to Article L. 145-26 of the Commercial Code, which states that “the renew …

Occupation of private property

The provisions relating to the status of commercial leases apply “to leases of premises or buildings” that are part of the private domain of public entities mentioned in Article L. 1 of the General Code of Public Property, “in cases where these premises or buildings comply with the provisions of Article L. 145-1” and subject to Article L. 145-26 of the Commercial Code, which states that “the renewal of leases concerning buildings belonging to the State, local authorities, and public institutions cannot be refused without the owning entity being required to pay the eviction indemnity provided for in Article L. 145-14, even if its refusal is justified by a reason of public utility.”

The application of the status to leases concerning property within the private domain of public entities requires that there be no clauses departing from ordinary civil law in the agreement governing the contractual relationship between the parties. An agreement containing such clauses would be administrative in nature and therefore not subject to commercial lease regulations. This is the case for the agreement by which a public establishment authorizes the operation of a refreshment stand in premises located on the private State-owned forest land, as the agreement, titled “administrative contract,” contains clauses departing from ordinary  law relating to the strictly personal nature attached to the operating authorization without the possibility of transfer, adherence to specified opening hours, the control by the State and the National Forestry Office over the authorized activity with the submission of all evidence proving the proper management of the refreshment stand, the execution by the operator of instructions that may be given by the agents responsible for control, and the termination procedure in accordance with domain regulations . If the presence of clauses departing from ordinary law in a contract involving occupation of the private domain prevents the application of the status of commercial leases, the fact that a single clause derogates from this status by conferring a precarious nature on the right granted to the occupant is not sufficient by itself to deem it to be departing from ordinary law, as the nature of a contract cannot be deduced from a clause conferring jurisdiction on the administrative court .

Finally, in the case of workshop-hubs built by municipalities and assigned to a public service mission, the courts considers that the fact that their construction falls under a public service mission is not sufficient to incorporate them into the public domain. The lease granted for the occupation of one of these workshop-hubs, in the absence of any terms derogating from ordinary law, is  a private law contract subject to the status of commercial leases .

Cass. 3e civ., 13 March 2002, LawLex202100001424JBJ.

Cass. 3e civ., 2 February 2005, LawLex202100002986JBJ.

CA Pau, 6 July 2016, LawLex202100003536JBJ. See also Cons. d’Et., 11 June 2004, LawLex202100001427JBJ, according to which a lease granted by a municipality to a company for the occupation of a relay workshop located on its private domain is, in the absence of an extraordinary clause of common law, considered a private law contract since, although the construction of relay workshops by the municipality to promote its economic development by enhancing its capacity to accommodate companies is a public service mission, this circumstance is not sufficient to regard these workshops, which are intended to be rented or sold to their occupants, as being assigned, once constructed, to a public service and, provided they have been subject to special development, to incorporate them solely for this reason into the public domain of the municipality.

Commercial Leases/Business Goodwill

24. Occupation of private property

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24. Occupation of private property

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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