Commercial Leases/Business Goodwill

Article L. 145-1, I of the Commercial Code subjects the merchant and the industrialist registered in the trade and companies register, as well as the head of a company registered in the trade directory, to the obligation of registration, for which the registration must be personal . The lessee, as the holder of the commercial lease and owner of the business operated in the leased premises, must be …

Persons subject to registration

Article L. 145-1, I of the Commercial Code subjects the merchant and the industrialist registered in the trade and companies register, as well as the head of a company registered in the trade directory, to the obligation of registration, for which the registration must be personal . The lessee, as the holder of the commercial lease and owner of the business operated in the leased premises, must be registered for the activity that is actually carried out in the leased premises  and for which he has been authorized by the lease . The personal nature of the registration excludes that following a partial asset transfer operation, the beneficiary company, substituted in the rights and obligations of the lease to the transferring company, benefits from the status of commercial leases as long as it cannot rely on the registration in the trade and companies register of the latter .

However, Article L. 145-1, II, of the Commercial Code provides a legal exception in the case of a management lease. If it is regular, the owner of the business benefits from the status of commercial leases “without having to justify registration with the trade and companies register or the trade directory,” even if the tenant-manager is not himself registered . Conversely, a tenant erroneously registered with the trade and companies register as a tenant-manager of a business cannot benefit from the protection of commercial leases, as he is not registered as the owner of the business .

In the case of multiple tenants or co-owners, the personal nature of the registration implied, until Law No 2008-776 of 4 August 2008 , that each of them had to meet the registration requirement under penalty of depriving all co-holders of the lease of the protection of commercial leases . Thus, the co-tenants of a commercial lease, one of whom, co-owner of the business and non-operating, was not personally registered in this capacity in the trade and companies register, could not benefit from the right to renew the commercial lease, as the tenant's registration was a condition for the application of the status . However, when a co-tenant was registered in the trade and companies register as a non-operating owner, the Court of Cassation held that the judges could not deny the co-tenants the benefit of the commercial lease status . Like the co-tenants, the co-owners had to each meet the registration requirement in the trade and companies register or the trades directory . This was the case for spouses married under the regime of separation of property when they were co-holders of a lease for premises for commercial use, each spouse having to be registered , with the Court of Cassation considering this requirement not to constitute a disproportionate infringement on the right to “commercial property” . Conversely, when the spouses were married under the community regime, the registration of only one of the two spouses common in property was sufficient to claim the benefit of the status , even if the co-tenants, formerly married under the community regime, found themselves in post-community indivision . Furthermore, in the case of a succession indivision, if, at the date of the notice given by the lessor, none of the co-heirs was registered in the trade and companies register, they could not claim the protection of commercial leases , even if the lessor had proposed the payment of eviction compensation only to retract later, the absence of the conditions for the application of the commercial lease status thus being established . However, the status of a registered trader in the trade and companies register could only be required for the member of a succession indivision who operated the business on behalf and in the interest of the co-owners .

Since the reform initiated by Law No 2008-776 of 4 August 2008 , when a lease is granted to several co-lessees or co-indivisors, the operator of the business or artisanal establishment benefits from the provisions relating to the status of commercial leases even if one of them, not operating the establishment, is not registered in the trade and companies register or the trades directory . The law also improved the situation of indivisible heirs following the death of the owner of the establishment . In this case, the heirs or beneficiaries, although not operating the establishment, can request the maintenance of the registration of their predecessor for the needs of the succession in order to benefit from the protection of the status. Decree No 2010-1706 of 29 December 2010, which supplemented Articles R. 123-45 and R. 123-46 of the Commercial Code, specified the conditions . Thus, the temporary maintenance of the registration of the deceased operator, limited to a maximum of one year with the possibility of renewal for an additional year, must be the subject of a request for a modified registration submitted by the indivisible heirs within one month from the date of death.

Finally, in the event of the dismemberment of ownership of the business assets between a usufructuary who has the status of a trader and a bare owner who does not have this status, the latter must be registered in the trade and companies register to benefit from the application of the status of commercial leases, which can only be invoked by the one who is both the holder of the lease and the owner of the business assets .

Article R. 123-31 of the Commercial Code specifies that registration is personal in nature and excludes the possibility of being registered multiple times in the same register.

Cass. 3e civ., 22 September 2016, LawLex202100001391JBJ.

Cass. 3e civ., 1 June 1994, LawLex202100001261JBJ.

Cass. 3e civ., 24 May 2000, LawLex202100001270JBJ.

Cass. 3e civ., 18 May 2005, LawLex202100001277JBJ.

Cass. 3e civ., 8 May 1979, LawLex202200000132JBJ, in this case, the two spouses jointly owned the property, but only the wife was registered in the Trade and Companies Register.

Cass. 3e civ., 1 June 2011, LawLex202100001290JBJ, in this case, only the ex-wife, operating the business in the interest of the joint ownership, was registered with the trade and companies register.

Cass. 3e civ., 11 December 1991, LawLex202200000133JBJ.

Cass. 3e civ., 23 May 1995, LawLex202200000154JBJ, in this case, at the date of delivery of the notice, none of the joint heirs being registered in the Trade and Companies Register, the conditions for the application of the status of commercial leases were not met.

Cass. 3e civ., 3 July 1979, LawLex202200000155JBJ.

Art. 42, Law No 2008-776 of 4 August 2008 on the Modernization of the Economy.

Paris, 17 June 2004, LawLex202100003392JBJ : Does not benefit from the status of commercial leases, the lessee registered in the trade and companies register for an activity distinct from that authorized by the lease.

Arts. 6 and 7, Decree No 2010-1706 of 29 December 2010 relating to the individual entrepreneur with limited liability.

Cass. 3e civ., 5 March 2008, LawLex202100001288JBJ.

Cass. 3e civ., 7 November 2001, LawLex202100001271JBJ.

Cass. 3e civ., 15 September 2010, LawLex202100001342JBJ.

Cass. 3e civ., 3 April 1997, LawLex202100001307JBJ.

Act No 2008-776 of 4 August 2008 on the Modernization of the Economy.

Cass. 3e civ., 2 June 1999, LawLex202100001380JBJ, in this case, one of the co-lessees had never been registered with the trade and companies register.

Cass. 3e civ., 14 November 2007, LawLex202100001286JBJ.

Cass. 3e civ., 15 June 2005, LawLex202100001281JBJ.

Commercial Leases/Business Goodwill

35. Persons subject to registration

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35. Persons subject to registration

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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