Law No. 2014-624 of June 18, 2014: The reform of commercial leases
Law No. 2014-626 of June 18, 2014, relating to crafts, trade and very small businesses brings profound changes to the commercial lease regime .
The majority of the provisions of this law entered into force on June 19, 2014. Consult the information letter n° 5
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Early termination of the commercial lease by the tenant or his assignees
The lessee may request the early termination of the lease, if he has requested to benefit from his retirement rights, if he has been admitted to the benefit of a disability pension. Failing agreement to the contrary, the tenant may also request the termination of the lease at the end of a three-year period. The law modifies the early termination regime by removing the possibility of using a waiver clause for early termination by the lessee (Article L.145-4 of the Commercial Code). This new provision is applicable to contracts entered into or renewed as of September 1 , 2014.
The lessee's heirs are granted the possibility of terminating the lease, in the event of the latter's death. The request of the beneficiaries must be presented “ in the forms and within the time limits of article 145-9 ” (Article L.145-4 al.4 of the Commercial Code). This provision is applicable to any succession opened from the entry into force of the law.
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Extension of the duration of derogatory leases
The duration of the derogatory lease is extended from two to three years. The law specifies that at the end of this period, the parties cannot conclude a new derogatory lease to operate the same property in the same premises.
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The definition of the notion of precarious occupation agreement
The precarious occupation agreement was not defined by law. It is now provided that it is characterized " whatever its duration, by the fact that the occupation of the premises is only authorized because of special circumstances beyond the sole control of the parties " (Article L.145- 5-1 of the Commercial Code). This new provision is applicable to contracts entered into or renewed as of September 1 , 2014. It should be recalled that the precarious occupation agreement does not fall within the status of commercial leases.
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Arrangement of the right to renewal of the lease
Articles L.145-15 and L.145-16 of the Commercial Code, providing for the nullity of clauses or agreements which have the effect of defeating the right to renewal of the lease or which aim to prohibit the tenant from assigning his lease make subject to modification.
From now on, it is provided that the non-observance of these articles will no longer be sanctioned by the nullity of the clauses. These will be “ deemed unwritten ”.
According to the report of the Economic Affairs Committee of the National Assembly, this amendment aims to exempt these articles from the two-year prescription established by Article L.145-60 of the Commercial Code. The provisions depriving foreigners of the right to renewal of the lease are also deleted.
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Rent review
The reference to the construction cost index is deleted. Only the commercial rent index or the rent index for tertiary activities are taken into account to limit the variation in the amount of rent (Article L.145-34 of the French Commercial Code). In the event of derogation from the rule of capping the amount of rent, the variation in rent is limited to “ 10% of the rent paid during the previous year ”.
The law also specifies that the revision of the rent takes effect on the date " of the request for revision " (Article L.145-38 al.1 of the Commercial Code).
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The inventory, rental charges and taxes
A new article relating to the establishment of a contradictory inventory (Article L.140-40-1 of the Commercial Code) has been adopted.
An inventory must be drawn up when taking possession of the premises and when returning them. When the parties fail to establish an inventory, at the request of one of the parties, it is drawn up by a bailiff. It is expected that this new provision applies to leases entered into before its entry into force only when an inventory has been drawn up when taking possession. As of September 1 , 2014, the law requires the lessor to inform the lessee of the distribution of rental charges, taxes, duties and fees related to the lease (Article L.145-40-2 of the French Commercial Code).
In addition, at the conclusion of the lease and then every three years, the lessor must bring to the attention of the tenant: – A provisional statement of the works that he plans to carry out in the following three years accompanied by a provisional budget;
– A summary statement of the work carried out over the previous three years.
Disputes relating to charges, works as well as disputes relating to the amount of rents during the three-year review and the rate of variation may be submitted to the departmental commission of conciliation in matters of commercial leases, which therefore sees its jurisdiction extended (Article L .145-35 of the Commercial Code).
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Right of pre-emption of municipalities and delegation
The law complements Article L.214-1 of the Town Planning Code relating to the pre-emptive right of municipalities.
The amount of information that must be contained in the declaration prior to the alienation of a fund has been increased. The declaration of intention to alienate had to mention only the price and the conditions of the transfer. From now on, it must mention “the price, the activity of the prospective buyer, the number of employees of the transferor, the nature of their employment contract and the conditions of the transfer. It also includes the commercial lease, if applicable, and specifies the turnover when the transfer relates to a commercial lease or an artisanal or commercial fund ” (Article L.214-1 al 3 of the Town Planning Code).
The new article L.214-1-1 of the Town Planning Code provides for the possibility for the municipality, holder of a right of first refusal, to delegate this right to a public institution for inter-municipal cooperation. This public institution or the municipality may delegate this right of pre-emption to " a public institution with a vocation to do so, to a semi-public company, to the concessionaire of a development operation or to the holder of a contract for artisanal and commercial revitalization ".
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The benefit of a right of preference in the event of the sale of the premises
The law establishes a right of preference for the benefit of the tenant in the event of the sale of commercial premises, which is inspired by the tenant's right of pre-emption established in terms of residential leases by the law of July 6, 1989 (Article L 145-46-1 of the Commercial Code).
The provisions providing for this right of preference are not of public order and can therefore be set aside by a contrary clause in the lease.
In addition, they do not apply in the event of: – single transfer of several premises of a commercial complex,
– single transfer of separate commercial premises,
– transfer of commercial premises to the co-owner of a commercial complex,
– global sale of a building including commercial premises,
– sale of premises to the lessor's spouse or to an ascendant or descendant of the lessor or his spouse.
When the lessor plans to sell the commercial premises, he must now inform the tenant of his intention to sell the premises by registered letter with acknowledgment of receipt.
The lessor must specify the price as well as the conditions of the sale. This letter is an offer. If the lessee accepts, the parties have a period of two months to conclude the sale.
Failing this, the acceptance has no effect. By way of exception, if the lessee specifies in his response his intention to use a loan, the period is four months. When the premises is a lot belonging to a set subject to a single sale, the tenant does not benefit from this right of preference.
This article is applicable to leases already in force from the sixth month following the promulgation of the law, i.e. from 1 December 2014.
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leave
According to article L.145-9 of the Commercial Code, notice must be given by extrajudicial act. The law relaxes the formal conditions governing the leave. Thus, the parties can choose to send a registered letter with acknowledgment of receipt.
