Commercial Leases/Business Goodwill

Under the terms of Article L. 145-47, para. 2, of the Commercial Code, the notification by the lessee of a request for partial despecialization “constitutes formal notice to the owner to declare within a period of two months, under penalty of forfeiture, whether they contest the related or complementary nature of these activities” .

The landlord is not required to express their opposition in a particular form  nor to specify the reasons that determined it . However, they must have manifested it unequivocally . Thus, the landlord may respond via a registered letter with acknowledgment of receipt  or a simple letter . In this regard, Article R. 145-38 of the Commercial Code specifies that when, pursuant to Article L. 145-47, the landlord uses a registered letter with a request for acknowledgment of receipt, the date of notification for the landlord is the date of dispatch of the letter and, for the tenant, the date of first presentation of the letter.

If the lessor does not have to justify their opposition , they are obligated, when opposing, to contest the connection or complementarity of the proposed activity , to the exclusion of any other reason . They cannot, in particular, oppose an exclusivity granted, by virtue of a lease title, to another tenant in the same building .

Finally, if it is up to the tenant to establish that the landlord has granted permission to add the newly contemplated activity to those provided for in the lease , the landlord's agreement or waiver of any recourse can only result from positive acts clearly manifesting their intention . The landlord's agreement cannot result from a mere passive attitude , which alone cannot imply acceptance of the change in the use of the premises . The landlord's mere tolerance of the tenant adding an activity to their initial business does not constitute implicit authorization . Thus, when the small catering activity was only contemplated in a draft lease following unsuccessful negotiations, the landlord's awareness of the addition of this activity and lack of opposition only amount to mere tolerance . Similarly, the fact that a tenant named their business “Superette” without opposition from the landlord and the circumstance that the latter visited the business are not sufficient to demonstrate that they tacitly accepted the extension of the use of the premises as provided for in the lease . The presence of a landlord at the judgment authorizing the transfer of the business from the assignor to the assignee, and the reading of the deed of transfer of the business, do not imply the landlord's knowledge of the transformation projects intended to allow the musical bar activity, initiated by the tenant, and even less authorization to carry them out .

Cass. 3e civ., 1 March 1995, LawLex202200001113JBJ.

Cass. 3e civ., 23 April 1974, LawLex202200001115JBJ.

Cass. 3e civ., 16 February 1983, LawLex202200000679JBJ.

CA Douai, 2 November 2011, LawLex202200000884JBJ, which specifies that mere knowledge that the intended activity has been added is in itself insufficient.

Cass. 3e civ., 28 May 1997, LawLex202200000966JBJ.

Cass. 3e civ., 4 February 1997, LawLex202200000672JBJ.

Cass. 3e civ., 26 November 1991, LawLex202200001106JBJ.

Cass. 3e civ., 12 May 2016, LawLex202300000511JBJ.

CA Rennes, 23 November 2011, LawLex202200001140JBJ.

CA Toulouse, 13 April 2006, LawLex202200000887JBJ.

Cass. 3e civ., 6 March 1973, LawLex202200001114JBJ.

Cass. 3e civ., 9 February 2017, LawLex202200001116JBJ.

Cass. 3e civ., 6 March 1973, LawLex202200001114JBJ, préc.

Cass. 3e civ., 9 February 2017, LawLex202200001116JBJ, previously cited.

Cass. 3e civ., 11 February 1971, LawLex202200001117JBJ, which overturns the appellate decision that held, to refuse a tenant of premises used as a workshop the authorization to add retail sales activity, that Article L. 145-47 of the Commercial Code allows the addition of related or complementary activities to those exercised in accordance with the lease, but not to create a new business or modify the contractual purpose, and that since the text is inapplicable to such a request, it matters little that the landlord did not contest the relatedness or complementarity of the intended activity, whereas the tenant claimed that the activities he wanted to add were related or complementary, and that the owner, if deemed necessary, had the obligation to contest this nature within the legal deadline following the request.

Cass. 3e civ., 1 February 1978, LawLex202200001118JBJ.

Cass. 3e civ., 1 February 1978, LawLex202200001118JBJ, préc.

181. Response of the lessor