We will look here at the conditions under which the protective status of the commercial lease must be applied.
A commercial lease is a rental agreement entered into between the owner of a property and a trader, industrialist or craftsman to enable the latter to carry on his business.
The status of commercial leases grants important rights to the lessee, in particular to ensure the long-term future of the business.
A commercial lease is mandatory if four conditions are met:
- The contract is a lease;
The contract must therefore provide for private use of the leased property by the lessee, in return for fixed or determinable consideration.
- The lease must relate to an immovable property;
The lease will relate to the main premises required for the business. It is important to note that the protective status will also apply to ancillary premises, where their deprivation is likely to compromise the operation of the business.
- A commercial, industrial or craft business;
If a business is not being run, the lessee cannot take advantage of the status of commercial leases, even if the lease takes the form of a commercial lease.
A business is a universality made up of tangible and intangible assets that are exclusively movable. A business may therefore include, for example, merchandise, a brand name, leasehold rights, customers or furniture. It should be noted that the customer base is the only element that determines whether or not a business exists.
To benefit from the status of commercial leases, the business must be effectively and continuously operated. A commercial lease gives the tenant the right to renew the lease if he can prove that he has actually been operating the business for at least three years.
- The lessee must be registered in the Trade and Companies Register or the Trades Register;
The lessee's registration must relate to the same activity authorised in the lease. In the case of a management lease, only the registration of the tenant-manager is required to benefit from the status of a commercial lease.
In some cases, commercial lease status does not apply. For example, it does not apply to precarious occupation agreements, authorisations to occupy the public domain, exceptional leases of less than two years, professional leases or seasonal lets.
Conversely, the parties to a lease may voluntarily agree to be governed by the commercial lease regime even though they are under no obligation to do so. This could be the case, for example, if you are a professional. However, the lease must explicitly state that the parties wish to be governed by commercial lease law. Furthermore, it will then be impossible to derogate from the mandatory rules of the aforementioned statute, particularly those relating to duration, renewal or eviction compensation. Only the non-mandatory rules (other than those set out in articles L. 145-15 and L. 145-16 of the Commercial Code) can be modified by the parties.