A commercial lease has a legal term of 9 years, to enable the trader to carry on a long-term business. What's more, if the lessor wishes to give notice to the lessee at the end of this period, he must pay eviction compensation. Commercial leases are therefore very onerous for the lessor, so much so that the term "commercial property" is sometimes used to describe this type of lease.
Before having an impact on the duration of commercial leases, the Pinel Act provides a number of clarifications on precarious occupancy agreements and derogatory leases.
Firstly, for the first time it provides a definition of a precarious occupancy agreement. Article L. 145-5-1 of the French Commercial Code states that a precarious occupancy agreement is not subject to the rules governing commercial leases if, irrespective of its duration, it is characterised by the fact that occupancy of the premises is only authorised due to special circumstances beyond the control of the parties. This is a lease that derogates from the status of commercial leases (not to be confused with the status of derogatory leases), and whose duration is uncertain. The legislator has taken up previous case law by characterising precariousness not by its duration, but by the fragility of the occupier's rights. In a precarious occupation agreement, it is possible to terminate the occupation at any time due to an event whose arrival is foreseeable but exceptional. Precariousness must be justified on serious and legitimate grounds.
There are three ways in which this restriction can be applied:
Secondly, the Pinel Act modifies derogatory leases, which do not fall within the scope of the restrictive commercial lease regime, in order to allow the trader and lessor to test the viability of the business. In this type of lease, unlike a commercial lease, there is no right to renewal or eviction compensation. Initially limited to two years, the reform now stipulates that a derogatory lease may not exceed three years. The lessee may have doubts about the relevance of such a change, particularly in view of the possibility of giving three-year notice.
In the event that the retailer remains on the premises on the expiry of the exceptional lease, a commercial lease will take effect from the day following the expiry of the exceptional lease.
The reform specifies that it is forbidden to enter into several derogatory leases in succession. Previously, this was still possible if the second lease was entered into after the first had expired. As the parties were once again in a position of freedom, there was nothing to prevent them from subjecting themselves once again to the regime of a special lease. It is regrettable that the legislator has interfered, creating a presumption of vitiated consent to the detriment of contractual freedom, by prohibiting two parties who are under no obligation to enter into a new contract that meets their expectations.
Lastly, the so-called Pinel Act directly affects commercial leases by strengthening the lessee's right to terminate the lease early. By deleting the words "in the absence of an agreement to the contrary" from article L. 145-4, paragraph 2, of the Commercial Code, the option to terminate the lease after 3 years once again becomes a rule of public policy. The lessee can therefore no longer be prohibited by the lease from exercising his right to give notice every three years. However, leases for premises built for a single use, leases concluded for a term of more than nine years, leases for premises used exclusively as offices and leases for storage premises are still subject to contractual freedom in this respect.