Unused commercial lease: can the landlord obtain termination?

The closure of a commercial property does not automatically terminate the lease. In the absence of a clause expressly requiring the tenant to operate their business on the leased premises, the mere cessation of activity does not necessarily constitute a breach of contract.

The situation differs when the lease contains an obligation for continuous and effective operation. In such cases, the landlord can invoke the termination clause or request a court order to terminate the lease. However, the wording of the contract, the duration of the closure, its causes, and the actual seriousness of the breach must all be taken into account.

The absence of operation can also produce effects at the time of lease renewal, even when it does not allow for its immediate termination.

Does the closure of the premises automatically lead to the termination of the commercial lease?

The commercial tenant is required to comply with the obligations stipulated in their lease. In particular, they must pay the rent and charges, maintain the premises, and use them in accordance with their contractual purpose.

Article1728 of the Civil Code requires him to use the leased property reasonably and according to the purpose for which it was intended by the lease.

However, this text does not, by itself, establish a general obligation for the permanent operation of the business.

The Court of Cassation recalled this in a judgment of December 3, 2020, No. 19-20.613. An appeals court had ordered the termination of a commercial lease due to the shared fault of the landlord and the tenant, accusing the latter of having ceased all activity and left the premises even though no material obstacle prevented him from operating them.

The decision was overturned: judicial termination of a commercial lease for failure to operate cannot be pronounced when no express stipulation in the contract obliges the tenant to operate his business in the leased premises.

The mere fact that a property is closed, empty or temporarily unused does not always allow the landlord to terminate the contract.

Why must the obligation to operate be expressly stipulated?

The commercial lease gives the tenant the right to operate a business on the premises, but this right does not necessarily translate into an obligation to carry out this business without interruption.

The landlord who wishes to impose effective operation must clearly stipulate this in the contract.

A clause may, for example, stipulate that the lessee must:

• to effectively and personally operate the activity authorized by the lease;
• keep the premises open according to the agreed days and times;
• respect the collective opening periods of a shopping centre;
• to keep on the premises the personnel, equipment and authorizations necessary for the activity;
• inform the landlord of any foreseeable interruption;
• not to permanently cease its activity without the prior agreement of the landlord.

A simple clause defining the purpose of the premises — for example “restaurant”, “retail” or “service activity” — is not necessarily sufficient to characterize a permanent obligation to operate.

The contractual purpose defines the activities that the tenant is authorized to carry out. The operating obligation, on the other hand, specifies that the tenant must actually carry out the authorized activity.

How to write an effective exploitation clause?

An overly general operating obligation can be difficult to implement. Conversely, an excessively rigid clause may prove unsuitable for the actual constraints of the business.

The contract should therefore specify:

• whether the operation is to be continuous, regular or simply effective;
• the minimum opening days and hours;
• permitted leave periods;
• the maximum duration of an unauthorized closure;
• the methods of informing the landlord;
• situations in which a temporary closure is permitted;
• the consequences of non-compliance;
• the possible application of the termination clause.

In a shopping mall or arcade, business continuity can be of particular importance. The prolonged closure of a single unit can negatively impact the overall appeal, customer traffic, and other retailers.

The lease may then include obligations relating to collective working hours, window displays, maintaining the signage, and informing the manager. These obligations must nevertheless remain sufficiently precise to allow for monitoring and, if necessary, enforcement.

Drafting the lease is therefore the primary tool for prevention. TheARST Avocats team specializing in real estate law and commercial leases assists landlords and tenants in negotiating, reviewing, and resolving disputes related to these clauses.

Does any interruption of activity constitute a breach of contract?

The existence of an operating obligation does not mean that the slightest closure authorizes the termination of the lease.

The duration, cause and consequences of the interruption must be taken into account.

A temporary cessation of activity may be justified, in particular, by:

• annual leave;
• renovation or compliance work;
• a disaster;
• an administrative ban;
• a closure imposed for health or safety reasons;
• the illness or temporary unavailability of the operator;
• a supply difficulty;
• a procedure for the sale of the business or a change of brand;
• a circumstance of force majeure;
• a fault on the part of the landlord preventing the normal use of the premises.

The landlord cannot validly blame the tenant for a lack of use that the landlord himself caused. This may be the case when the premises are rendered unusable by leaks, construction work, lack of access, inadequate equipment, or a failure to fulfill the obligation to deliver the premises in a habitable condition.

It is also important to investigate whether the landlord has tolerated the closure for a long period, accepted a work schedule, or agreed to a temporary interruption.

Each situation must therefore be assessed based on the contract, the exchanges between the parties and the circumstances that led to the closure.

How can the landlord prove the failure to operate?

The landlord who alleges non-performance must be able to demonstrate it.

An isolated observation made at a time when commerce is exceptionally closed does not always allow us to characterize a lasting cessation.

Evidence may include, in particular:

• of several reports from a judicial commissioner carried out on different dates and times;
• photographs showing a premises that are permanently closed or emptied;
• the removal of the sign and commercial furniture;
• the lack of opening hours;
• testimonies from neighboring shopkeepers or residents;
• of water or electricity consumption becoming insignificant;
• of the closure of booking or ordering tools;
• the removal of the establishment's internet pages or social networks;
• of a modification or removal of the establishment from the national business register;
• of letters in which the tenant acknowledges the cessation of his activity;
• of formal notices that have gone unanswered.

The evidence gathered should make it possible to establish not only the closure, but also its duration and its unjustified nature with regard to the lease.

Termination clause or judicial termination: which procedure to choose?

When the contract expressly requires the operation of the fund, two main paths can be considered.

Implementation of the termination clause

If the obligation to operate falls within the scope of the termination clause, the landlord can issue a notice referring to this clause.

Pursuant to Article L. 145-41 of the French Commercial Code, a termination clause can only take effect one month after a formal notice to perform has been issued and remains unheeded. The formal notice must explicitly state this time limit.

The document must precisely identify:

• the clause imposing the exploitation;
• the acts alleged against the tenant;
• the observed closure period;
• the measures expected to put an end to the breach;
• the termination clause whose acquisition is being pursued.

The landlord must act in good faith. A termination clause cannot be misused to cause the termination of a lease based on an artificial, vague, or already rectified breach.

The implementation of this clause must be carefully prepared. As illustrated by our publication on termination clauses and landlord waivers, the procedural choices made can have lasting consequences.

Judicial termination

The landlord can also ask the court to order the termination of the lease.

Judicial termination is currently governed by Articles 1224, 1227, and 1228 of the Civil Code. The judge then assesses the seriousness of the breach.

Even when there is an obligation to operate, termination is not automatic. The judge may take into account:

• of the actual duration of the closure;
• reasons given by the tenant;
• steps taken to resume operations;
• damages suffered by the landlord;
• of the existence of other shortcomings;
• of the good or bad faith of the parties;
• of the possibility of regularization.

A brief, justified closure without particular consequences does not present the same seriousness as a lasting abandonment of the premises accompanied by unpaid bills, a lack of maintenance and the absence of any prospect of reopening.

Can failure to operate result in the loss of the right to renewal?

The termination of an existing lease and the right to its renewal are subject to different rules.

ArticleL. 145-8 of the French Commercial Code stipulates that the right to renewal can only be invoked by the owner of the business operated on the premises. The business must, unless there are legitimate reasons to the contrary, have been effectively operated during the three years preceding the expiry of the lease or its renewal.

As a result, a lack of operation may prevent the lessor from obtaining immediate termination of the contract, while subsequently compromising the lessee's right to renewal and eviction compensation.

This distinction is essential:

• Termination is a penalty for the non-performance of a contractual obligation during the lease;
• Renewal requires that the legal conditions of the commercial lease status be met at its expiry.

A tenant facing a prolonged closure must therefore assess the consequences of their situation, even when the lease does not include an express obligation to operate.

The existence of a legitimate reason — works, disaster, illness, temporary impossibility of operating or breach by the landlord — must be documented without waiting for the expiry of the lease.

What happens when the tenant encounters financial difficulties?

A prolonged closure sometimes reveals the tenant's financial difficulties. It may be accompanied by rent arrears, deterioration of the premises, or the commencement of insolvency proceedings.

As long as no collective procedure is opened, the landlord may exercise the remedies provided for by the contract and by common law, subject to compliance with the applicable formalities.

When a tenant is subject to safeguard proceedings, receivership, or liquidation, the applicable rules change. The current lease cannot be terminated solely for non-payment of debts incurred before the commencement of these proceedings. Prior rent arrears must be declared as liabilities.

Breaches other than non-payment may be subject to different treatment, particularly when they occurred before the commencement of proceedings. The precise nature of the unfulfilled obligation and the chronology of the proceedings then become decisive.

Our article on lease management in insolvency proceedings outlines the main steps landlords should take in this situation.

In the event of unpaid rent, it is also essential to coordinate the operational strategy with the debt collection strategy. The 2026 reform modified several rules concerning guarantees, monthly payments, and the conditions under which a tenant can obtain a suspension of the termination clause. These changes are detailed in our analysis of commercial rent collection after the reform.

What steps should the landlord take?

When a business appears to be permanently closed, the landlord should avoid concluding too quickly that the lease should be terminated.

First, he must:

1. carefully reread the lease and its amendments;
2. verify the existence of an express obligation to operate;
3. identify the exceptions provided for in the contract;
4. question the tenant about the causes and duration of the closure;
5. retain all exchanges;
6. to observe the situation over time;
7. check for any outstanding payments or other breaches;
8. to determine if collective proceedings have been initiated;
9. choose between formal notice, order invoking the termination clause, legal action or negotiation of an amicable termination.

The order should only be issued after verification of the clause invoked, proof of the breach and the real possibility of remedying it.

What steps should the tenant take?

A tenant who has to interrupt their business should promptly inform the landlord and document the reasons for the closure.

In particular, it must:

• reread the operating obligation contained in his lease;
• inform the landlord in writing;
• specify the expected duration of the interruption;
• keep the supporting documents relating to the work, the disaster or the impediment encountered;
• request, if necessary, an authorization or an amendment;
• maintain the payment of rents and charges;
• take the necessary measures for the maintenance and security of the premises;
• organize the resumption of business or the sale of the business;
• to respond immediately to any formal notice or order.

Silence and a lack of transparency increase the risk of litigation. A written agreement outlining a closure period is generally preferable to informal tolerance, the scope of which can then be debated.

Key takeaways

The cessation of operation of a commercial premises does not automatically lead to the termination of the lease.

In the absence of a clause expressly requiring the operation of the business, the mere closure of the premises does not necessarily constitute a sufficiently serious breach of contract.

When a lease contains an obligation to operate the business, the landlord may consider a termination clause or judicial termination. However, they must establish the reality, duration, and unjustified nature of the closure.

Even when it does not allow for immediate termination of the lease, the lack of operation can compromise the tenant's right to renewal and eviction compensation.

The drafting of the contract, the reasons for the closure, the evidence gathered and the chronology of the steps are therefore crucial.

Fanny Hurreau and Morgan Jamet,
Partner Attorneys – ARST Avocats