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Assignment of a leasehold right

Need a lawyer to draft a lease assignment?

We assist you

Sign the first commitments as soon as possible and in particular the promise, then control the reiteration period
Verify that the purpose of the assignment is a leasehold right to avoid any requalification or nullity
Manage the Lessor’s agreement, in particular in the event of a modification of the activities authorized in the destination clause
Purge sources of litigation

What formalities for the assignment of a commercial lease or assignment of the right to the lease?

Gouache Avocats drafts deeds of assignment of lease rights, for its customers of brands and franchisors.

The assignment of the right to lease consists of the isolated assignment of an element of the business: the commercial lease, to which is attached, in France, a right to renewal or to eviction compensation, which confers a patrimonial value on the right to lease.

When an operator transfers his business, the buyer necessarily takes over the lease without the owner of the premises being able to oppose it. subject to the terms of the lease. On the other hand, the law, most often recalled in a clause of the lease, prohibits the tenant from assigning the lease independently of the land, unless otherwise provided (very rare in practice).

The assignment of the right to lease does not obey the same rules as those of the transfer of business. In particular, it is not subject to legal formality and the sale price does not necessarily have to be sequestered.

For these reasons, and when the lessor allows it, many sellers wish to use this solution to transmit a point of sale. However, it is necessary to be vigilant on the assessment of the risk of requalification of the assignment of leasehold rights to the assignment of goodwill. It should also be borne in mind that the commercial lease allows the lessee to enjoy a building and that as such, the role of the drafting lawyer is to secure the real estate aspects: alignment, urban planning provisions, diagnostics, compliance of the building with the regulations, co-ownership regulations, so as to assure the brand that the situation of the building will not prevent peaceful enjoyment.

Gouache Avocats drafts a large number of assignments of lease rights for its merchant, branch or franchisor clients. In this capacity, he developed:

a complete and secure act;
a procedure for preparing the deed, including standardized documents and steps.

This organization leads Gouache Avocats to apply competitive rates, really correlated to the average time spent on the file, which can allow us to be referenced by national or local intermediaries as well as by trade unions or professional bodies to draft the acts of the cases they deal with.

Gouache Avocats can assist you with any aspect related to the sale of your commercial leases.

Distinction between the door step and the right to the lease

When a trader wishes to ensure the enjoyment of a commercial premises, he may be required, depending on the circumstances, to pay:

a door step to the owner of the walls when concluding the lease. In this case, it is a clause of the lease;
a leasehold right to the outgoing tenant, in the event of the resumption of an existing lease. This time it is a clause of the commercial lease assignment contract.

These two concepts should therefore not be confused: they correspond to two different situations.

He is qualified

either a rent supplement by which the landlord wishes to protect himself against rent increases that do not follow the increase in the actual rental value of the premises;
either as an indemnity corresponding to the pecuniary consideration of elements of various kinds, in particular commercial advantages unrelated to the rent;
or as an indemnity corresponding to the pecuniary consideration for the depreciation of the value of the premises : in fact, if the owner wishes to take over the premises, he must pay the tenant an eviction indemnity.

It can also be mixed (rent supplement and compensation).

The landlord and the tenant must clearly specify in the commercial lease the qualification they intend to give to the door step. Failing this, the judges seek the common intention of the parties. In this case, they generally consider the door step as a rent supplement. This point is important insofar as tax consequences are attached to this qualification.

Indeed, if the door step is qualified as a rent supplement:

the lessor treats the amount received as property income and must subject it to VAT;
the tenant deducts the amount no door for the calculation of its tax result at the rate of an annual share calculated linearly over the term of the commercial lease.

On the other hand, if the door step has an compensatory nature:

the lessor is not taxed for the amount received, which is not subject to VAT, the compensation being considered as the consideration for the depreciation of the value of the premises;
the lessee immobilizes the door step which is a non-depreciable intangible asset, and not subject to registration duty when acquired.

The creator takes over the commercial lease concluded between the previous occupant and the owner.

The outgoing tenant wants to monetize the fact that their rent is undervalued compared to the market price. He will therefore assign his lease in return for the payment of compensation: the “right to the lease”.

For the transferring lessee, the sale of the leasehold right is taken into account for the determination of the taxable profit in respect of industrial and commercial profits (BIC).

For the lessee, the leasehold right is subject to registration fees and is included in the assets of the balance sheet as a non-depreciable intangible asset.