Commercial Leasing Regime and Subletting: Analysis of Lease Transfer and Despecialization
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Commercial leasing regime, subletting, lease transfer, despecialization, business assets, commercial activity, landlord, tenant, lease contract, status, prescription, deadlines, business assets, commercial activity, clientele, assignment, sale, refusal, nullity, deed, co-signature
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Abstract
This document provides an in-depth analysis of the commercial leasing regime and subletting, including the rules and regulations surrounding lease transfer and despecialization. It is a valuable resource for law students, professionals, and anyone interested in understanding the complexities of commercial leasing and subletting. Written as part of a law course, this document offers a comprehensive overview of the topic, making it an essential read for anyone looking to gain a deeper understanding of the subject.
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[...] Commercial Leasing Law QUESTION 1 The head office consists of office space with an area of approximately 750 m2 for an initial rent of 230,000 euros excluding tax. In 2013, the SAS granted a sublease covering 150 m2 for a subrent of 70,000 euros excluding tax. The lessor is requesting an adjustment of the rent. The commercial leasing regime in principle prohibits subletting, the lessor may be tempted to request the termination of the lease at the slightest provision of the premises by the tenant to a third party, while, for the same reason, the tenant may try to conceal a sublease under another type of contract that is not subject to any prohibition. [...]
[...] In this case, the tenant will have to ask for permission to despecialize the lease, whether this despecialization is partial or plenary. As a result, it is not possible for the owner to refuse the assignment if the new tenant exercises the same activity. To avoid any ambiguity, it ispreferable to foresee that the lessee will only be able to assign his lease in cases where the status authorizes it explicitly or to specify the nature of the trade that the successor will be able to exercise (for example, the annulment of a transfer as a result of which a cheese shop trade had been substituted for the butchery trade provided for in the lease,CA Rouen 3-12-1987). [...]
[...] The landlord can rely on subletting to ask the tenant for an increase in his rent and to refuse him the renewal of the lease. As soon as the rent is clearly higher, as in this case, the landlord can ask for an additional rent and this, even if the knowledge of this fact reaches him after the main rent has been fixed (Cass. civ. 30-10-1991 :RJDA 1/92 n° 17). The increase in the main rent cannot be passed on by the tenant to the subtenant, in the absence of a stipulation in the sublease contract,locationCA Chambéry 16-5-1995 : JCP G 1995.IV.2064). [...]
[...] The judges may authorize the tenant to disregard the landlord's refusal which would not be based on a legitimate reason (Cass. com. 28-2-1956 : Bull. civ. III p. 71 ; Cass. civ. 10-4-1973 : RTD com obs. Pédamon ; Cass. com. 4-1-1994 :RJDA 6/94 n° 636). The landlord has a legitimate reason when he has introduced against the outgoing tenant an action for termination of the lease (Cass. civ. 14-4-1982 : GP 1982.pan.291) or when the assignment does not relate to a business, the assignor having operated no activity in the leased premisesCass. [...]
[...] 3e civil 9-12-2009 n° 04-19.923 : RJDA 3/10 n° 220 : it is of little importance that the landlord had knowledge of the causes of the failure to exploit)The landlord who gives his consent does not become a party to the transfer (Cass. civ. 25-3-1992 : Bull. civ. III p. 59). The non-respect of the formal conditions of transfer leads to the unenforceability of the transfer to the landlord. In this case, the president will have every interest in asking the landlord's consent to the transfer of the lease, if he does not want to incur the unenforceability of the latter. In any case, this concurrence will go without saying in the event of a lease despecialization. [...]
