Presentation: When the contractor is in liquidation, the liquidator will make the choice to terminate the lease or to sue for its sale. When the liquidator decides to terminate the lease, the landlord is notified and is binding on him. In this case, the landlord must obtain restitution of the premises and keys. However, when the liquidator decides to continue the lease, it does not always have cash to pay the landlord and that it can be very difficult. There are also times when the landlord opposes the sale because it believes that the lease is automatically terminated either for cause prior to judicial liquidation, or for reasons later. If in the first case, it is essentially a declaration of termination for default of the tenant obligations do (repairs, work etc. ..) or not do, in the second case, the landlord will act to get the payment of rent and expenses post-judgment liquidation the liquidator can not solve. It should be understood that the lessor must expect the sale to be paid may also find themselves in difficulty. The law allows it to act and get the legal termination of the lease notwithstanding ouveture and the effects of a bankruptcy procedure.
Termination for cause prior
Since the Act of July 26, 2005, the landlord who wishes to pursue judicial or termination of right of lease, for reasons prior to trial opening of the proceedings must commence proceedings within three months.
Parliament amended the starting point of this period as this one now runs from the publication of the judicial liquidation (Commercial Code Art
Be careful though as this is a limitation period and not a limitation period, which means very clearly that the landlord must be vigilant because at the end of that period, it will be inadmissible in any legal action to introduce declaration of termination of the lease for previous cases.
However, it is what the legislature intended the term "previous case".
Indeed, it is useful to consider the possibility of bringing legal action by the lessor for cause prior to the trial opening, such as non-payment of rent or any other breach of contract.
The rule in the prosecution led the Supreme Court to rule on this concept by considering that "the earlier cases to judicial liquidation may only apply to obligations other than payment of money."
Also, this case should continue to continue despite the new wording of Article L 661-12 of the Commercial Code, and the landlord could still not invoke as a cause of termination, failure to pay rent or charge prejudgment Opening.
In practice, this means that the landlord could not claim that the failure to do or not do (eg repair rental, work, rehabilitation, ...) liability of the tenant before the trial.
Of course the landlord will always take the precaution of assigning the liquidator as a representative of the company.
Termination for later:
It goes without saying that the lessor may act termination for financial reasons after the bankruptcies because the rule of the stay only for non-payment before the trial.
It would be totally unacceptable that the lessor has already lost the lease receivables and expenses will be unable to collect debts of rent post-judgment.
Article L 641-12 al 5 of the Commercial Code provides that: ...
The legislature has allowed the landlord to continue the termination for cause financial post-judgment receivership or conversion of a backup or to liquidation.
This rule makes sense because the rents and charges must be paid in cash for the duration or the lease is continued.
The landlord can bring a perfectly legal action and involve the mechanism of the clause.
However it will have deadlines as it can act only after a period of three months from the judicial liquidation (Article L622-14 al 3).
This waiting period is not without financial consequences for donors since they will have to wait before being allowed to act on termination.
This sacrifice is for the sole purpose of allowing the continuation of the lease will be assigned.
The landlord must keep in mind, though it enjoys a privilege for the last two years of rent before the trial opening (L622-16 Commercial Code).
In practice, instead of the landlord, however, is difficult because its special privilege is not only winning the super privilege of the employees and the privilege of legal fees and since the 2005 reform of the privilege of reconciliation established by Article L 611-11 of the new code.
You can also watch the video on the following topic: "What happens to my debts after bankruptcy proceedings" on the website TVDROIT, under "business".
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