Overview: With the arrival of the contractual maturity date, the lease not be renewed automatically, and it will be there to issue a compulsory act, leave or renewal application for the lease ends, and be implemented renewal. Otherwise, the lease continues by tacit agreement of indefinite duration. The merchant holds a commercial lease has a right to renewal. However, the landlord will always have a choice but to refuse renewal shall pay the compensation for eviction. The commercial lease is for a period equal to nine. Either party may initiate the implementation of the end of the lease: The lessor may grant leave with a renewal offer, but the renewal of the lease may also be requested by the tenant, under certain conditions described below . The renewal application has no other role than to implement the renewal.
That can form the renewal application?
Under Article L.145-10 of the Commercial Code, the "tenant" can form the renewal application. There is of course hear the tenant in the broad sense, meaning the person will be beneficiary of renewal: the tenant, assignee, assigns ... it will more often than the owner of the land.
Naturally, the tenant can not make this request only if it meets the conditions that give rise to the status of commercial leases.
Being a commercial lease, the tenant must of course be a merchant, and that as a trader means that the tenant is to be registered as such in the commercial register and corporate or business directory, and have effectively and regularly exploited its commercial, industrial or handicraft in the leased premises during the three years before the lease expires.
Business interruption of more than three years can defeat the right to renewal and a discontinued operation in the three years preceding the end of the lease.
When to apply?
Article L. 145-10 of the Commercial Code provides that "failing to leave, the tenant who seeks renewal of the lease must apply, within six months before the lease expires or, if applicable at any time during its continuation. "
The first condition is the absence of leave. It is completely unnecessary and inefficient for the tenant who received leave to form an application for renewal of the lease.
The tenant did not receive its request off form in the six months preceding the expiry of the lease and the landlord has three months to respond. If no answer, the lease will continue by tacit agreement and will become a permanent lease to which it may be terminated at any time for the next term of use.
Who should be sent an application for renewal?
Article L. 145-10 of the Commercial Code provides that "the request for renewal must be served to the lessor by extrajudicial act. Unless stated otherwise, or notifications from it, he may, as well as himself, he properly be addressed in the person of the Manager, which is deemed to be qualified to receive it. If there are multiple owners, the request to one of them is, unless otherwise stipulated or notifications in respect of all. "
Depending on the circumstances, the request should be addressed to the owner or one of them if they are several co-owners, the manager of the building and possibly by the tenant subtenant, in some cases.
It states that in cases of multiple owners, the request to one of them is valid towards all, unless otherwise notified or not, it is necessary to read the lease and its amendments which may provide for the lease to mean all donors.
How the application form?
At the formal level, the application must be filed by an extrajudicial act, ie the act of a judicial officer (bailiff) who is not prepared in connection with legal proceedings.
Thus, it was considered that the nullity resulting from the use of the registered letter was absolute (CA Paris, 16th ch. A, June 27, 1989).
You will have to necessarily use the services of a bailiff to serve your request.
The request must be made by extra-judicial acts, and other forms, such as the letter, would render null and devoid of any effect without the need to investigate whether it caused a complaint to the lessor, this step is considered as substantial.
In addition, the application must, on pain of nullity, cited in paragraph 4 of Article L.145-10 of the Commercial Code, namely "Within three months of delivery of the request for renewal, the landlord must , in the same manner, notify the applicant declines the renewal stating the reasons for the refusal. If they have not made his intentions known in this period, the landlord is deemed to have accepted the principle of the renewal of the previous lease. "
The fund, the conditions of renewal need not be explained in the application, and the rent will be fixed later and possibly challenged.
Irregularities either in the form of the request or the contents of the application is punishable by disqualification.
The amount of new rent
The lease is renewed with its old terms, but the rent of the lease renewal is free: it is also worth noting that the words "the same terms and conditions of the lease" does not necessarily full and complete agreement the lessor for the renewal of the old rent, and can then ask a higher rent, which will eventually be challenged.
In practice, the landlord will offer a price for the rent, the price of a share to be consistent with the rental value of the premises, on the other respect a ceiling calculated by the INSEE index variation in the cost of construction has occurred since the last fixing of rent.
In case of disagreement on the amount of rent, the dispute may be submitted to the departmental committee to reconcile the commercial leases (provided that the premises are not only offices) that will give its opinion within three months and make a quotation.
If that price still does not satisfy the parties, the president of the High Court, which exercises judicial office rent, set the rent.
The refusal of the lessor
Article L. 145-10 paragraph 4 of the Commercial Code lays down a limitation period of three months to invoke the reasons for not renewing the landlord knows and could be argued at the time of the request by the tenant.
The refusal to renew operating on a renewal application to terminate the lease without the notice period required if leave is to be respected in this case.
Remember that failure to reply within three months, the lease is automatically renewed.
If the landlord refuses to renew without cause, he will be required to pay an indemnity or compensation equal to the value of the business, unless the injury is less (Article 8 of the Decree of September 30, 1953).
The lessor may nevertheless be exempted from paying the compensation in the following cases: if he wants to take over the premises to demolish, rebuild or restore them, if he wants to take over the accommodation of commercial accessories for living himself or to house a family member, if the property is pending demolition due to unsafe or dilapidated, and finally, for good cause and legitimate against the tenant in the event of default After repeated delays or demands, in the payment of rent, or as explained above, upon termination without cause serious and legitimate operation of the fund.
Note that the lessor has a right to reconsider: it may, after refusing to finally accept the new lease without having to pay the compensation for eviction.