Presentation: In principle, the leased premises under a commercial lease can not be sublet by the tenant, unless expressly. Article L 145-31, para. 1 of the Commercial Code states, however, that, unless otherwise stipulated in the lease or agreement of the lessor, any sub-letting whole or in part is prohibited. It is therefore permissible to locatare main sub-let part of the premises subject to an express agreement of the lessor. This agreement may be subject to a development between the parties. It is important to note that the landlord can refuse any sublease and its refusal to license can not be objetd a control of the court by the judge. The landlord is totally free to accept or not. This note is to inform the tenant intends to sublet a portion of its premises in order to take the necessary steps to seek the permission of his landlord. The penalties of failure to uatorisation will be a note intulée "sanctions and sublease inrrégulière".
It should be noted that the conditions laid down in Article L145-31 paragraph 2 are cumulative, meaning that the tenant will be dispensed to call the landlord to assist in the act on the grounds that it would have allowed in general terms to sublet the premises.
I / permission to sublease
The legislature has come to ask the condtions of a regular sub-lease and made it clear that to be valid, the sublease must fulfill several conditions.
Article 145-31 of the Commercial Code states:
-Sublease shall have been authorized by the lessor or by a clause in the lease or subsequently,
- And the landlord should have been known to contribute to the sublease agreement.
In principle, the authority figure in the lease but it may provide that the lessor must give its approval either by a separate document.
The authorization may be oral or written, but it is strongly recommended to protect the evidence of written permission.
Permission may be implied, so that the lessor, without having been called to assist in the act of subletting, to waive irregularities affecting rpévaloir of the sublease with respect to the provisions of the Commercial Code.
However, it should pay attention to the scope of the authorization
The lessor may give permission to any subletting or not to grant it for a sublease determined. It may limit his consent to certain people (eg a subsidiary or related company tenant) and, where appropriate, include a clause giving the right to approve the proposed subtenant, the authorization may be limited specific activities or to a part of the premises.
II / call the landlord from the obligation to contribute to the act of subletting
The call of the landlord to contribute to the sublease agreement is an essential procedural requirement that the tenant can not be dispensed even if the landlord is aware of the sublease and tolerates long.
Formalté This is essential for the lessor may:
- Be aware of the identity of the subtenant,
- The contents of the sublease, including its duration, destination etc. .. to verify its compliance with the main ball.
The tenant must notify the owner of its intention to sublet by extrajudicial act or by registered letter (C. com. Art. L 145-31, para. 4).
Notifying the landlord of his intention to sublet it may, in the same act, to provide the place, date and time of signing of the sublease.
The lease may extend the disclosure requirement imposed on the tenant, for example by requiring it to provide the lender with accurate information on the sub-tenant or the proposed contract.
It is, in principle, to the tenant to call the landlord to assist in the act but the subtenant prudent to ensure that the tenant has made claims and substiituer to him, in case of default.
The subtenant will overcome these omissions to:
-Binding to the sublease to the landlord,
- Ensure that no blame can be read opposite.
Within fifteen days of receipt of the notice by which the tenant expressed its intention to sublet, the landlord must make known whether he intends to contribute to the act (C. com. Art . L 145-31, para. 4).
The landlord is not obliged to answer, nor is it required to be present at the time of the call to compete.
I am at your disposal for any information and all happy.