The commercial lease is a central element of any business. Governed by commercial lease statutes (Articles L. 145-1 et seq. of the French Commercial Code), it affords the tenant specific protections — notably the right to renewal and rent caps — while imposing strict obligations whose breach may result in the loss of tenancy rights.
Maître Léa Scemama advises landlords and tenants throughout France on all commercial lease matters: from initial negotiation through litigation before the competent courts, including lease assignment and the management of difficulties arising during the lease term.
Negotiation and Drafting of the Commercial Lease
Negotiation Assistance
Entering into a commercial lease commits both tenant and landlord for a minimum term of nine years (the 3/6/9 lease). The clauses negotiated at signing will determine each party's rights and obligations throughout the term and directly affect the value of the business.
The firm assists landlords and tenants in negotiating the key provisions of the lease:
- Permitted use and activity clause (all-commerce clause or restricted use)
- Initial rent, triennial review mechanism and indexation
- Allocation of service charges, works and taxes between landlord and tenant (Pinel Act reform)
- Lease term, triennial break options and contractual derogations
- Forfeiture clause and its conditions of enforcement
- Lease assignment terms and landlord's consent requirements
- Security deposit, personal guarantees and sureties
- Non-competition and exclusivity clauses
Commercial Lease Audit
Whether you are about to sign a new lease, acquire a business, or renew an existing lease, a prior analysis of the contract by a lawyer allows identification of unfavourable clauses, legal risks and negotiating room.
The firm reviews in particular:
- Compliance of the lease with commercial lease statutes and mandatory provisions (Pinel Act of 18 June 2014)
- Allocation of service charges and works under Article R. 145-35 of the Commercial Code
- Clauses relating to lease assignment and subletting
- Renewal terms and the risk of rent uncapping
- Scope of the forfeiture clause and obligations whose breach may cause loss of the lease
Lease Drafting
The firm drafts commercial leases tailored to each situation, ensuring a balance of the parties' interests and compliance with applicable law. The firm also drafts short-term leases (bail dérogatoire within the meaning of Article L. 145-5 of the Commercial Code) and precarious occupation agreements.
Lease Assignment and Business Transfer
A lease assignment allows the tenant to transfer to a third party all rights arising from the lease contract, including the right to renewal and the remaining term. It differs from a business transfer (cession de fonds de commerce), which covers all elements of the business (customer base, trade name, equipment, lease).
Lease assignment is in principle freely permitted, but the lease may strictly regulate it: a landlord's approval clause, a clause requiring the landlord's participation in the deed, or a clause prohibiting standalone assignment of the lease separate from a business transfer. However, no clause may prohibit assignment to a buyer of the business.
The firm acts to:
- Analyse lease clauses relating to assignment and verify their enforceability
- Draft the lease assignment deed or preliminary assignment agreement
- Secure legal formalities: notification to the landlord by bailiff's act (Article 1690 of the Civil Code), joint inspection report (Article L. 145-40-1 of the Commercial Code)
- Manage the landlord approval process where required by the lease
- Verify the conditions for change of permitted use where the assignee changes activity
- Handle the municipality's commercial pre-emption right (Article L. 214-1 of the Urban Planning Code)
Commercial Lease Renewal
The right to renewal is one of the pillars of commercial lease law: it guarantees the tenant the continuity of their business. Upon expiry, the tenant may request renewal, or the landlord may serve notice with or without an offer of renewal.
Setting the Renewed Lease Rent
On renewal, rent is in principle capped: it may only be increased up to the variation in the Commercial Rents Index (ILC) or the Tertiary Activities Rents Index (ILAT). However, the landlord may seek uncapping where there has been a material change in the rental value factors (Article L. 145-34 of the Commercial Code): property characteristics, permitted use, parties' respective obligations, or local commercial factors.
The firm assists landlords and tenants in negotiating the renewed rent and, in case of disagreement, in the judicial rent-setting procedure before the commercial rent judge.
Refusal of Renewal and Eviction Compensation
A landlord refusing to renew a commercial lease must, absent limited exceptions (serious and legitimate grounds, property uninhabitability), pay the tenant eviction compensation intended to cover the full loss caused by non-renewal (Article L. 145-14 of the Commercial Code). This compensation includes the market value of the business, removal costs, re-establishment costs and transfer taxes.
The amount of eviction compensation is often a significant financial issue. The firm acts to negotiate it amicably or, failing agreement, to defend your interests before the Civil Court, including in the context of the judicial valuation expert process.
Until eviction compensation is paid, the tenant has the right to remain in occupation. The landlord has a right of withdrawal allowing them to reverse their decision within 15 days of the judgment fixing the compensation amount.
Pre-Litigation: Commercial Lease Disputes
Many commercial lease difficulties can be resolved before any court proceedings through prompt and structured intervention. Maître Léa Scemama assists clients at the pre-litigation stage to preserve their rights and seek a negotiated outcome.
Common pre-litigation scenarios:
- Receipt of a formal payment demand invoking the forfeiture clause: assessment of its validity, negotiation of a regularisation schedule within the one-month cure period, preparation of a defence if proceedings are issued
- Challenging a triennial rent review or proposed uncapping by the landlord
- Formal notice to the landlord to carry out works falling within their repair and maintenance obligations
- Negotiating the conditions for return of the security deposit at the end of the lease
- Dispute over the allocation of service charges and works post-Pinel Act
- Challenging an irregular or unjustified notice to quit served by the landlord
- Referral to the departmental conciliation commission for revised or renewed rent disputes
Commercial Lease Litigation
Where amicable resolution fails, Miraï Avocats represents landlords and tenants before the Civil Court, the emergency judge (juge des référés) and the commercial rent judge in all disputes relating to commercial leases.
Forfeiture Clause and Lease Termination
The forfeiture clause, found in virtually all commercial leases, allows the landlord to obtain termination of the lease upon the tenant's breach of obligations (unpaid rent, failure to insure, unauthorised works, unauthorised change of activity). Its enforcement requires prior service of a formal demand by a court enforcement officer and a one-month cure period for the tenant.
The firm acts for both the landlord (enforcement of the forfeiture clause, eviction proceedings) and the tenant (application for time extensions, suspension of forfeiture effects, challenging the validity of the formal demand, challenging the landlord's good faith).
Judicial Rent Determination
Where there is disagreement on the renewed lease rent or triennial review, the commercial rent judge of the Civil Court has jurisdiction to fix the rent. The procedure requires prior service of a written statement by recorded delivery. The firm assists you in building the file, establishing rental value and defending your interests before the judge.
Eviction Compensation Disputes
Where the amount of eviction compensation cannot be agreed, the judge appoints a judicial expert to assess the tenant's loss. The firm assists you throughout this expert process, both in defending the tenant's position (maximising compensation) and the landlord's position (limiting the amount or invoking a legitimate ground for non-renewal without compensation).
Lease Assignment Disputes
Lease assignment disputes concern in particular the enforceability of the assignment against the landlord where contractual formalities have not been observed (lack of approval, absence of notification), the validity of restrictive assignment clauses, or change of permitted use where the assignee alters the activity. The firm brings or defends such claims before the competent court.
Rent Arrears and Recovery
Non-payment of rent and service charges is the most common source of commercial lease litigation. The firm assists landlords in recovering unpaid rent (formal notice, payment order application, payment proceedings) and, where applicable, in enforcing the forfeiture clause. For tenants, the firm negotiates regularisation schedules and applies for grace periods before the court.
Repairs, Works and Landlord's Duty to Provide
The allocation of works and repairs between landlord and tenant is a recurring source of disputes. The landlord has a duty to provide premises fit for the contractual use and, absent contrary provision, bears the cost of major repairs (Article 606 of the Civil Code). The firm brings claims against landlords in breach or defends them against unmeritorious tenant claims.
Why Instruct a Lawyer for Your Commercial Lease?
Commercial lease law is a specialised, technical and constantly evolving field. The financial stakes are often substantial: the commercial lease is an essential element of the business and its loss can jeopardise the company's future.
Legal assistance is recommended from the negotiation stage to prevent future disputes, and becomes essential when difficulties arise during the lease or at renewal. Legal representation is compulsory before the Civil Court for most commercial lease proceedings.
Miraï Avocats intervenes at every stage of the commercial lease: negotiation, drafting, audit, assignment, renewal, pre-litigation and litigation.