Day-to-day management of your commercial lease: rights, obligations and amendments

By Yasmine EDDAM15 April 2025

Signing a commercial lease is just the beginning of a contractual relationship that will shape the life of your business for many years to come. Far from being a fixed document, the commercial lease is the framework for ongoing interaction between the tenant (lessee) and the owner (lessor). Understanding the rights and duties of each party during the term of the lease is essential if you are to maintain calm relations and ensure the long-term future of your business. What's more, the needs of a business change over time: expansion, reorientation, transfer, etc. Under certain conditions, the commercial lease provides certain possibilities for adaptation, particularly in the face of recent legal developments. What are the maintenance obligations? Can I sublet part of my premises? How do I transfer my lease if I sell my business? Is it possible to change the business? And how do you managing the renewal or end of the lease ? This article explores these practical aspects of commercial leases.

The essential obligations of the parties during the lease

Commercial leases, like all rental contracts, create reciprocal obligations. The specific status of commercial leases and the Civil Code define the main outlines, although contractual arrangements are frequently made.

Obligations of the tenant

The lessee has three main obligations:

Paying rent and service charges: This is the fundamental obligation in return for making the premises available. Payment must be made at the times agreed in the lease. With regard to charges, taxes and fees, the Pinel Act (codified in article L. 145-40-2 of the French Commercial Code) now requires the lease agreement to include a precise and restrictive list of the categories of charges shared between the lessor and lessee. Certain expenses, such as major repairs under article 606 of the Civil Code or fees relating to rent management of the leased premises, can no longer be charged to the tenant for contracts entered into or renewed since September 2014. The landlord must also provide an annual summary of charges.
Peaceful use of the premises: Article 1728 of the French Civil Code requires the tenant to use the rented property "reasonably" (the old expression was "en bon père de famille"). This means not damaging the premises beyond normal wear and tear, not causing any abnormal neighbourhood disturbance, and ensuring that the property is maintained on a regular basis. Rental repairs" (minor maintenance work as defined by decree) are the responsibility of the tenant, unless they are due to obsolescence or force majeure. Major repairs affecting the structure of the building (large walls, entire roof, etc.) are, in principle, the responsibility of the landlord (article 606 of the French Civil Code), although specific clauses may transfer the cost to the tenant (except for those affecting the building itself).
Respecting the contractual destination : The tenant must use the premises in accordance with the use specified in the lease (e.g. "clothing sales", "restaurant", "office"). Carrying on an unauthorised activity is a breach of the lease. For example, a café-bar can generally sell pastries without this constituting a change of use requiring authorisation. This is assessed on a case-by-case basis, depending on the wording of the lease and usage.

Obligations of the lessor

The owner of the premises also has essential obligations towards the tenant:

Delivering compliant premises: The lessor must make the leased premises available to the lessee in a good state of repair (articles 1719 and 1720 of the French Civil Code). Above all, the premises must be fit for the purpose specified in the lease. If any work is required to enable the business to be carried on as stipulated (for example, to bring the premises into line with the health and safety standards required by the regulations governing the business in question), the lessor is in principle responsible for carrying it out, even if the lease contains a general clause making the lessee responsible for the work. Only a very express clause specifically covering the work required to bring the building into compliance with the relevant regulations can exempt the lessee from this obligation.
Maintaining the building : In addition to the initial repairs, the lessor must carry out major repairs throughout the term of the lease to keep the building in a condition to be used for the purpose for which it was leased (article 1720 C. civ. and 606 C. civ.). This typically concerns work on the structure (load-bearing walls, framework, complete roof). The maintenance obligation may even extend to common areas if their deterioration prevents normal use of the rented premises (for example, in a shopping centre). Here again, clauses may transfer some of these obligations to the tenant, but they must be interpreted strictly.
Guaranteeing peaceful enjoyment : The lessor must protect the lessee against disturbances that could affect his enjoyment of the premises. This includes a guarantee against latent defects in the premises (defects that are not apparent when the tenant takes possession of the premises and that render the premises unfit for use or significantly impair their use, article 1721 of the Civil Code). The lessor must also guarantee the lessee against eviction, i.e. against legal problems arising from third parties claiming rights to the premises (articles 1725 and 1726 C. civ.). Finally, the lessor must refrain from any personal action that would disturb the lessee's enjoyment of the premises (for example, by setting up a competing business in the same building if the lessee has signed a non-competition clause to this effect).

Compliance with these obligations is fundamental to the balance of the contract and, in the event of a serious breach by either party, may justify legal action or even termination of the lease.

Subletting: a regulated option

Sometimes a tenant does not use all of his or her premises and wishes to let part of them to a third party. This is known as subletting.

The principle of prohibition unless agreed

Unlike ordinary tenancy law, article L. 145-31 of the French Commercial Code prohibits subletting, whether in whole or in part. However, this prohibition is not absolute. Sub-letting is possible if :

A clause in the lease expressly authorises this.
The landlord gives his agreement during the course of the lease. This agreement must be clear and unequivocal, although it may be tacit (for example, if the landlord signs rent receipts directly to the sub-tenant with full knowledge of the facts). Mere tolerance, even over an extended period, does not constitute authorisation.

The obligation to call on the lessor to contribute to the deed

Even if subletting is authorised by the lease or by a subsequent agreement, there is one essential formality that must be complied with: the main tenant must must invite the lessor to take part in signing the sublease agreement. The invitation is sent by bailiff or by recorded delivery letter with acknowledgement of receipt. The landlord has 15 days to indicate whether he wishes to participate. If the landlord refuses or does not respond, the tenant may ignore the invitation and conclude the sublease. Failure to comply with this formality renders the sublease not enforceable to the lessor, even if it was authorised in principle. The sub-tenant would then be considered as an occupier without right or title vis-à-vis the landlord.

Consequences and rights

Unlawful subletting : The lessor may ask for the main lease to be terminated for fault on the part of the tenant, or may use this reason to refuse to renew the lease without compensation for eviction. The sub-tenant has no rights vis-à-vis the landlord and may be evicted if the main lease is terminated. The sub-tenant may be able to sue the main tenant for compensation.
Regular subletting : The sub-tenant has a contractual relationship with the main tenant. If the sub-lease meets the conditions of the statute (running a business, registration, etc.), the sub-tenant can apply to the main tenant to renew its own lease. More importantly, when the lease expires principalUnder certain conditions (in particular if the premises are divisible in the case of a partial sublease), the sub-tenant may have a "right of first refusal". direct right to renewal with the principal lessor (L. 145-32 C. com.).
Main rent adjustment : If the rent paid by the sub-tenant is higher than that paid by the main tenant (based on the corresponding surface area), the lessor has the right to request an increase in the main rent to compensate for this excess (L. 145-31 C. com.).

Selling your commercial lease: the rules you need to know

The transfer of a commercial lease is a frequent occurrence, particularly when the tenant sells his business. Here again, the law lays down specific rules.

Distinction between sale of a lease and sale of a business

It is essential to distinguish between the transfer of leasehold rights only the sale of business capital which includes the right to lease as one of its components. The transfer of the right to lease alone may be prohibited by a clause in the contract.

The principle of free transferability with the fund

However, Article L. 145-16 of the French Commercial Code states that void clauses that prohibit the lessee from transferring his lease to the purchaser of his business or company. This provision is a matter of public policy: a trader cannot be prevented from selling his business including the lease, which is often an essential part of it. The lessor cannot therefore oppose the transfer of the lease when it accompanies the sale of the business.

Valid restrictive clauses

If the total ban is null and void, the lessor may insert clauses that support transfer, even with the business. The following are therefore valid, provided that they do not constitute a disguised prohibition:

Approval clause: the lessor must approve the transferee. However, his refusal must not be arbitrary and may be challenged in court if it is not based on legitimate grounds (solvency, good repute of the transferee, etc.).
Clauses imposing formalities: for example, the obligation to carry out the transfer by notarial deed, or to comply with certain information procedures.
Joint and several guarantee clause: this stipulates that the transferring tenant remains liable for the payment of rent and the performance of lease obligations by the transferee (and sometimes successive transferees). However, the Pinel Act has limited the scope of this clause: the lessor can only invoke it for a period of three years from the date of the transfer (L. 145-16-2 C. com.).

Sale formalities

As with any assignment of a claim or contract, in order to be enforceable against the lessor (the "assignee"), the assignment of a lease must be served on the lessor by a bailiff or accepted by the lessor in a notarial deed, in accordance with article 1690 of the Civil Code. Failure to comply with this formality renders the assignment unenforceable against the lessor, even if it is otherwise valid between the assignor and the assignee. The lessor could then consider the transferee to be an occupier without right or title.

Merger and partial contribution of assets

Article L. 145-16 provides for a special regime in the event of a merger of companies or a partial contribution of assets subject to the demerger regime: the acquiring company or the beneficiary of the contribution is automatically substituted in the lease, notwithstanding any clause to the contrary (prohibition on transfer, approval clause, etc.).

Changing the business: despecialisation

Market needs change, and tenants may wish to adapt their business, either by adding new activities or by changing the business altogether. The Commercial Leases Act provides for this possibility under the term "despecialisation". This right is a matter of public policy; a clause in the lease prohibiting any change of activity would be null and void.

Partial despecialisation (L. 145-47 C. com.)

The tenant has the right to add other activities to the activities provided for in the lease. related (closely related to the main activity) or additional (enabling the main activity to be carried out more effectively).

Procedure: The tenant must inform the landlord of his intention by bailiff's writ, specifying the planned activities. The lessor has two months in which to contest the related or complementary nature of the business. Silence on the part of the landlord will be deemed to constitute acceptance. If the landlord does not agree, the dispute is referred to the courts.
Consequences for rent : If the partial despecialisation leads to a change in the rental value (even a small one), the lessor will be able to request an increase in the (uncapped) rent at the time of the partial despecialisation. next triennial review following notification.

Full despecialisation (L. 145-48 C. com.)

If the tenant wishes to carry on a completely different, unrelated or complementary activity, he or she must apply for full authorisation to despecialise.

Terms and conditions: It will only be granted if it is justified by the economic conditions (for example, the original business is no longer profitable) AND by the the need for rational organisation of distribution. In addition, the new activity must be compatible with the purpose, character and location of the building.
Procedure: The tenant must make a formal request to the landlord by bailiff's writ. The landlord has three months to respond. Silence on the part of the landlord means acceptance. If he refuses, he must give reasons for his refusal (for example, incompatibility of the new activity). The tenant can then take the matter to court. The lessor must also inform any other lessees who benefit from an exclusivity clause.
Consequences for rent : If the full despecialisation is authorised (amicably or by court order), the lessor may request an increase in the price of the property. immediate of the rent to bring it into line with the rental value of the new activity, without waiting for a three-year deadline. The tenant may also claim compensation if the conversion causes him harm.

The special case of sale and despecialisation (L. 145-51 C. com.)

A tenant who retires or becomes incapacitated has the right to transfer his lease by requesting a full despecialisation for the transferee, even if the lease prohibits this. The lessor must be informed of the proposed transfer, the new activity envisaged and the price. He then has a priority right to buy back the lease on the terms proposed. If the landlord does not pre-empt the sale or does not validly object (on the grounds that the business is incompatible with the building), the sale and despecialisation can go ahead.

Managing a commercial lease requires constant attention to everyone's rights and obligations. Anticipating the need for changes and knowing the applicable procedures is essential to avoid conflict and ensure the smooth development of your business.

Is your company planning to sell, sublet or reorientate its business? Are you experiencing difficulties with your landlord or tenant regarding the performance of your lease? For a detailed analysis of your situation and tailored advice, contact our firm.

Sources

Commercial Code, articles L. 145-16, L. 145-31, L. 145-32, L. 145-40-2, L. 145-47 to L. 145-55.
Civil Code, articles 606, 1690, 1719, 1720, 1721, 1725, 1728, 1754.