Following the reform of commercial leases, the landlord must act quickly to recover unpaid rent.
Law No. 2026-403 of May 26, 2026, on simplifying economic life, has modified several important rules governing commercial leases, impacting the collection of commercial rents. At first glance, it offers greater protection to tenants: monthly rent payments in certain premises, caps on security deposits, and regulated deadlines for their return. However, it also makes the conditions under which a defaulting tenant can obtain payment extensions and suspend the effects of a termination clause more stringent.
These developments are part of a broader reform of commercial leases, which also concerns monthly payments, indexation, guarantees and their return.
For landlords, the reform does not eliminate the means of recovering commercial rents. It alters the balance and, above all, the timing. Less protected by the guarantees established when the lease was signed, landlords now have an even greater incentive to detect, document, and quickly address the first missed payment.
A reform that reduces certain financial protections for landlords regarding the recovery of commercial rents
Guarantees are now capped for certain premises
For leases relating to premises intended for retail or wholesale trade, commercial services or craft activities, the new article L. 145-40 of the commercial code caps the guarantees that the lessor may require from the lessee to secure the recovery of commercial rents.
The sums paid as a guarantee may not exceed the amount of rent due for a quarter. The same limit applies to the value of assets, securities, commitments, and guarantees of any kind required to ensure the proper performance of the lease.
The wording is broad: it covers not only the security deposit, but also other commitments required from the lessee or a third party, including sureties or independent guarantees. Their value must therefore be included in the assessment of the overall limit, subject to the classification and specific terms of each guarantee.
This rule applies to leases signed or renewed since the law's enactment. It prohibits landlords from offsetting rental risk through an accumulation of guarantees exceeding a total of one quarter's rent. However, its scope must be interpreted precisely: not all premises subject to commercial lease regulations necessarily fall within the activities listed in the new legislation.
Guarantees that must be returned within specified timeframes
The reform also governs the termination of the lease. Security deposits must be returned within a reasonable timeframe, not exceeding three months from the date the keys are returned, after deduction of any outstanding or duly justified amounts. Other security deposits must be released within a maximum of six months.
In the event of the sale of the premises, the obligation to return the sums paid is transferred to the new landlord. Other guarantees generally become void, and the seller must carry out the necessary restitutions and releases.
For the landlord, these rules make a quick, documented and enforceable statement of account essential when the premises are vacated.
Monthly payments reduce the amount of each installment, but not the outstanding debt
The new Article L. 145-32-1 of the French Commercial Code allows tenants engaged in the activities covered by the text to obtain the right to monthly rent payments. This right applies to existing leases.
However, this option is only available if there are no outstanding rent or service charges that have not been previously disputed. A tenant already in default cannot therefore use monthly payments to unilaterally restructure their debt. The request only takes effect from the next payment due date stipulated in the lease.
When these conditions are met, the landlord cannot refuse monthly payments. Although the law does not specify a particular form, the tenant is advised to submit their request in writing to establish the date and content. Monthly payments do not, of course, affect the enforceability of any outstanding rent.
The distinction is essential: monthly payments can prevent certain cash flow problems, but they are not a mechanism for clearing unpaid debts.
In return, the defaulting tenant must now meet stricter conditions
The termination clause remains one of the landlord's main tools for recovering commercial rent. Pursuant to Article L. 145-41 of the French Commercial Code, it only takes effect one month after a formal notice to pay has been issued and remains unheeded; this notice must explicitly state this timeframe.
Until the reform, the tenant could ask the judge for payment extensions and the suspension of the effects of the termination clause. This possibility remains, but the law of May 26, 2026 now imposes two additional conditions:
- be able to pay off the rental debt;
- having resumed full payment of the current rent before the date of the first hearing.
These conditions apply to suspension requests submitted since the law came into effect.
The reform here does not concern the suspension of the provisional enforcement of a court decision. It more strictly regulates payment deadlines and the suspension of the effects of a termination clause. In practice, a tenant who allows arrears to accumulate while ceasing to pay current rent seriously jeopardizes their chances of preserving the lease.
Collecting commercial rents is becoming a matter of timing
The new balance created by the law encourages landlords to no longer allow rental debt to accumulate while awaiting spontaneous regularization.
Formalize the first unpaid invoice immediately
From the first missed payment, the landlord must verify the statement of account, the breakdown between rent, charges, taxes, and related expenses, as well as any disputes already raised by the tenant. A written reminder establishes the date of the incident, specifies the amount owed, and reserves the landlord's rights.
This traceability is all the more important as the existence of previously undisputed arrears deprives the lessee of the right to obtain monthly payments.
Do not unnecessarily delay the order invoking the termination clause
If the payment remains unpaid, the issuance of a formal demand for payment invoking the termination clause starts the statutory one-month period. A simple reminder or ordinary formal notice does not have this effect.
The demand for payment must be based on an accurate accounting and only claim amounts covered by the termination clause. Imprecision, the inclusion of unjustified sums, or bad faith in the application of the clause can jeopardize the procedure.
Acting quickly does not mean acting hastily. It means initiating a time limit based on a verified claim, without undue delay.
Refer the matter to the judge when the regularization does not occur
Upon expiry of the one-month period, the landlord may request the confirmation of the acquisition of the termination clause, the provisional payment of the debt, the eviction and the setting of an occupancy indemnity.
This referral places the tenant before the new requirements of article L. 145-41: in order to hope for delays and preserve the lease, he must have resumed full payment of the current before the first hearing and establish his ability to clear the arrears.
The procedure is therefore no longer simply the final step in a long-standing debt recovery process. It can be a tool for regularization: either the tenant quickly rectifies their situation, or the landlord preserves the possibility of repossessing the premises before the debt becomes disproportionate.
The lease must outline the cost of collecting commercial rent, without promising the impossible
A landlord sometimes hesitates to issue a formal notice or initiate legal proceedings because they fear incurring the costs if the tenant rectifies the situation later. The lease must therefore clearly stipulate the consequences of non-payment: late payment interest, reasonable contractual compensation, the cost of actions necessitated by the default, and reimbursement of expenses incurred within the limits permitted by law.
Such a stipulation is useful, but it does not automatically make all legal fees recoverable. In the event of a trial, costs are governed by Articles 695 et seq. of the Code of Civil Procedure, and costs not included in these costs fall under Article 700, among others. Their allocation remains subject to the judge's decision. A contractual indemnity that constitutes a penalty clause may also be reduced if it is manifestly excessive.
The drafting challenge therefore consists of providing a clause that is sufficiently clear and proportionate so as not to systematically leave the cost of a proven default to the landlord, without attributing to it a scope that it cannot legally have.
The opening of insolvency proceedings immediately changes the rules
The strategy must finally incorporate the risk of safeguard, reorganization or judicial liquidation of the lessee.
The commencement of insolvency proceedings suspends or prohibits, in particular, actions seeking payment of prior debts and those aimed at terminating a contract for non-payment of a previous sum of money. The landlord must file a claim and can no longer pursue its recovery as before.
The chronology of events preceding the commencement of insolvency proceedings can then become crucial. The issuance of a formal notice is not always sufficient, on its own, to definitively shield the lease from the effects of the insolvency proceedings. Termination based on prior arrears must have been obtained under the conditions required by law and case law before the commencement of the proceedings.
Thus, when the formal notice has been served but the one-month period has not yet expired on the date of the judgment opening the proceedings, the termination clause is not, in principle, triggered with respect to prior arrears. The landlord cannot then pursue the termination action as if the insolvency proceedings had not been initiated.
For rent and charges relating to occupancy after the commencement of insolvency proceedings, a specific regime applies. The landlord may only request termination or have termination for non-payment recorded after a period of three months from the commencement of insolvency proceedings.
This perspective further reinforces the importance of early treatment of payment incidents: when collective proceedings are initiated, the landlord loses some of their freedom of action and must comply with a mandatory timetable.
After the reform: five key actions for commercial landlords
The reform leads to a review of both the drafting of the lease and the day-to-day management of deadlines and the collection of commercial rents:
- verify that the guarantees requested comply with the new ceiling and its scope;
- to accurately predict the interest, compensation and costs related to unpaid invoices;
- set up an alert as soon as the first payment deadline is missed;
- have the account statement checked before issuing a writ of execution invoking the termination clause;
- monitor the tenant's economic situation and immediately adapt the strategy in the event of insolvency proceedings.
What the reform actually changes for landlords in the collection of commercial rents
The law of May 26, 2026 reflects a new balance. It limits the protection that the landlord can provide upstream for certain categories of premises, while reserving legal protection for the defaulting tenant to the one who resumes payment of the current rent and demonstrates a real ability to repay.
The landlord is therefore not without resources. However, they are more vulnerable if they remain passive. Following the reform, the quality of the lease agreement, the reliability of the accounting records, and the speed of response to the first missed payment become the true guarantees of recovery.
ARST Avocats assists landlords in auditing their leases, preventing and recovering unpaid commercial rents, and implementing termination clauses, including when the tenant is subject to insolvency proceedings.
Anticipating rent arrears and ensuring a favorable response from the landlord
The reform may justify an audit of the guarantees stipulated in the lease and the procedure applied from the first missed payment. ARST Avocats assists landlords in reviewing their contracts, defining a recovery strategy, and implementing the termination clause, including when insolvency proceedings threaten or affect the tenant.
Are you facing unpaid commercial rent or do you want to check the effectiveness of your guarantees? Talk to our team to get an initial assessment of your situation.
By Morgan Jamet, lawyer – ARST Avocats
