The amicable termination of commercial lease

Presentation: In a commercial lease, the parties are free to decide by mutual agreement to terminate their contractual relationship. The landlord and tenant can agree to break the lease allowing the lessor to repossess his property quickly and the tenant to stop paying rent and expenses until the end of the triennium in exchange for release sites. Such termination is subject to a formality, since the writing requirement is necessary. In practice, the parties will take the precaution to write in clear terms of the termination settlement. This article aims to highlight the principle of mutual termination of the lease business, and its principal mechanisms.

In a commercial lease, the parties are free to decide by mutual agreement to terminate their contractual relationship.

The landlord and tenant can agree to break the lease allowing the lessor to repossess his property quickly and the tenant to stop paying rent and expenses until the end of the triennium in exchange for release sites.

Such termination is subject to a formality, since the writing requirement is necessary.

In practice, the parties will take the precaution to write in clear terms of the termination settlement.

This article aims to highlight the principle of mutual termination of the lease business, and its principal mechanisms.

 

The principle of admission of the termination by agreement

Article 1134 of the Civil Code provides:

"Agreements legally formed take the place of law to those who made them.

They can not be revoked by mutual consent or for causes authorized by law.

They must be performed in good faith. "

This is in support of this article that the 1134 law allows the termination of early amicable commercial lease.

The Cour de cassation, in a ruling dated November 14, 2007, it is preferable to attach importance to this act of termination by agreement, in that it may constitute evidence in proceedings.

The tenant can leave after notification to and acceptance of the deed by the lessor.

Otherwise, his departure could be a breach of contract.

Termination by agreement subject to the condition

Sometimes, however, that the amicable termination of commercial lease is accepted by the contracting parties, but it is also subject to conditions:

 

The landlord may accept the cancellation provided that the tenant pays a termination fee or vice versa or just a new tenant who will succeed him in the rental.

It must still be noted that in the latter case, the tenant must be quite careful as it is faced with the autonomy of the will of the landlord that can easily refuse the successor subject or even modify the terms of the lease.

In a case where a landlord had refused to sign with the successor presented by the tenant a new lease terms and conditions of the former was censured the decision of a court of appeal, without characterizing the fault of the lessor, held that this refusal stemmed from a breach of its obligations to the lessor by the lessee (Cass. civ third. November 14, 2007 No. 06-15544 FS-PB, of Caffarelli c / Company film Film: RJDA 4 / 08 No. 380).

 The Supreme Court admits abuse of rights, even if it is very difficult to prove.

 

The substitution of the commercial lease contract by another

The amicable termination of commercial lease does not automatically mean the final rupture of the contractual relationship between landlord and tenant. It is possible that both parties agree a new lease after termination of the first to leave the "new basis".

This substitution is not necessarily beneficial to the tenant in the same way that the landlord: the restitution of the premises is not required, as a new security deposit for example.

But any changes made locally by the tenant will be considered for re-evaluation of the monthly rent (Cass.com March 14, 2008).

The amicable termination of commercial lease is possible even if the landlord can turn to his advantage. The tenant must be careful when the termination procedure, including not to leave before the act of termination is written.

Nevertheless, it is imperative for the tenant to use an act of termination by agreement to avoid conflict with his landlord.

The notification to the registered creditor of the act of termination by agreement

The lessor continues to terminate the lease of the building in which operates a business that is subject to registration must notify its request to creditors previously registered at the domicile elected by them in their entries (C. com. Art. L 143 -2).

So even in the case of a termination by agreement, the requirement of notification to the registered creditors is required because it is obvious that this is to prevent fraud and protect the creditors who have a security interest in the goodwill.


The notification is formal notice to carry out the terms of the lease (Cass. civ third. February 8, 1989 No. 87-11919, Sté Soficim c / Coche: Bull. Civ. III 31).

Its purpose is to reserve the registered creditors a means of safeguarding their security, whose lease is a key element, enabling them to perform the obligations under the lease in lieu of their debtor (third Cass. civ. 13 April 1976 No. 74-11774, Lamy c / Coffy: Bull. civ. III 151; Cass. 3rd civ. May 17, 1977 No. 75-14976, Gay c / Arnaud: Bull. civ. III 215) .

Creditors are recipients of the notification of all creditors who requested the registration of a lien or pledge on the business.

However, the creditor beneficiary of a provisional registration of collateral on a business can not rely on the provisions of Article L 143-2 of the Commercial Code if it has not conducted a supplementary registration two months from the day the decision on the claim has acquired the authority of res judicata, indeed, in this case, the provisional registration became effective retroactively without (Cass. civ third. No. 6 December 1995 2210 P, Nahabedian c / Flex Vich: RJDA 2 / 96 No. 191, third case).

The creditor must have registered before the termination of commercial lease has become effective.
The prior assessed upon termination settlement, the registration must be prior to the date of the agreement.

This step requires the writer of the act that ensures the effectiveness of the agreement between the parties.

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