Overview: Any lessee or tenant is required in principle to use the rented according to the destination that has been given in the lease contract. Any change of activity may result in termination of the lease. In commercial matters, is considering legislation leases, however, several cases of de-specialization, envisaged by Articles L 143-47 to L 145-55 of the Commercial Code (formerly Articles 34 to 34-8 of the Decree of September 30, 1953). This possibility is consistent with an economic development ...
Any lessee or tenant is required in principle to use the rented according to the destination that has been given in the lease contract.
Any change of activity may result in termination of the lease.
In commercial matters, is considering legislation leases, however, several cases of de-specialization, envisaged by Articles L 143-47 to L 145-55 of the Commercial Code (formerly Articles 34 to 34-8 of the Decree of September 30, 1953).
This possibility is in line with economic developments.
This is the possibility given to a commercial tenant to modify the activity specified in the lease, to strict conditions.
Two types of de-specialization are possible
- The partial de-specialization. Which allows the tenant to add or complementary activities related to his business. Article L 143-47 of the Commercial Code
- The total de-specialization, which implies a total change of destination and is subject to stricter conditions Article L 145-48 of the Commercial Code
I-The partial de-specialization for an activity closely related to that already carried
A) Introduction
This de-specialization is limited to public policy, which means that no clause to the contrary can not ban it. Om. Article L 145-15 of the Commercial Code.
The notification will be made to the lessor by extrajudicial act, (usher) in which will indicate the type of activity related or complementary.
It requires a prior authorization request.
The owner will have a period of two months from the date of notification failing which he shall be deprived of any right of objection, which means that his silence would be accepted.
In case of dispute related and complementary character of the High Court will have a sovereign power to assess the related and complementary activities.
In this matter respecting the form and timing will be important in pain of one of the following sanctions:
- A termination of the lease (with application of the termination clause in the lease for non-compliance clauses);
- A refusal to renew if necessary for a legitimate reason
B) Definition of related or complementary character and Jurisprudence
There is no definition, except an appreciation of the courts to the case, which hold alternative or cumulative number of criteria, such as:
- The identity of customers or product category,
- The similarity of working methods,
-The identity of raw materials,
-The identity of the manufacturer (although this criterion is not sufficient by itself)
-The extension of a party to a while: rarely recognized by the courts.
Ex. 3 rd Civ. July 19, 2000, appeal No. 1259 fs-d, Michaud c / Hugonnenc), coffee bar with the activity of fast food.
with butcher catering business
Civ 3rd, April 3, 1996, Pigne c / Taun selling sandwiches and soft drinks into the bakery business.
For cons:
Com 18 June 2002, the activity of pizzeria, involving a cook, can not be an activity related to the restoration in the form of salads, sandwiches, which does not require cooking, since the terms of the lease agreement does not allow such an addition of activity.
B) The result of the expansion of activity: an increase in the price of rent
It will be amicable or speak at the next triennial review if it has increased the rental value.
Upon renewal, an uncapped rent could be considered.
Plenary II despecialization change in total activity
A broad discretion of the judge is possible in case of difficulty being noted that the first tenant can not rely in the first nine years.
A) The change in activity
will be considered "given the economic conditions and needs of the rational organization of the distribution" which implies a broad discretion of the Judge.
This implies that these activities are compatible with the destination, the characters and the situation of the building, the condominium (art L 145-49 al 1 of the Commercial Code)
Note that in case of disability of the policyholder or retirement,
It will be entitled to assign its lease with a change of activity except in case of incompatibility with the destination and characteristics of the building (Article. L 145-51 of the Commercial Code). It will make the same request for extra-judicial act to the landlord and creditors indicating the nature of the planned activities and the price of the sale.
B) Establishment
The application for authorization to the lessor will be made by extrajudicial act, (usher) in which will indicate the type of activity on pain of nullity. So be careful to respect the form under penalty of termination of the lease.
The extra-judicial act must be reported to the registered creditors of the business
The landlord will have a period of 3 months.
In the same way and no reply, his silence shall permit a change of activity.
The answer may be authorized under strict conditions (eg carry out work at the expense of the tenant, a rent increase ...)
The High Court referred the tenant may, notwithstanding the refusal of the lessor, authorize the transformation of the lease, unless the refusal is a serious and legitimate reason.
The landlord can ask the rent increase from the transformation of the lease.
Note that in case of retirement or disability of the tenant, the landlord will have a period of two months to buy out the lease conditions notified. In case of dispute, the High Court must be entered within two months.
Living at your disposal for any clarification.
07/07/2011
