Right to repentance and expert fees

Reminder of the mechanism of the right to repent

Article L. 145-58 of the Commercial Code offers the lessor who initially refused the renewal of a commercial lease, the possibility of retracting his leave with refusal of renewal, by offering the renewal of the commercial lease.

This right of repentance may be exercised until the expiry of a period of fifteen days from the date on which the decision fixing the eviction indemnity has become res judicata.

This faculty of repentance allows the lessor to escape the payment of the eviction indemnity, which is often very high, by finally accepting the renewal of the lease. However, this possibility is not without consideration: the lessor must bear the “costs of the proceedings”.

The right of repentance can only be exercised if two cumulative conditions are met: the tenant must still be in the premises and not have already rented or purchased another building intended for his relocation.

Case law adds that the right of repentance may be exercised by the lessor, as long as the lessee has not taken irreversible steps to leave the premises.

The case law on the subject considers that the exercise of the right of repentance entails the obligation for the lessor to bear all the costs incurred by the lessee, whether they consist of extrajudicial costs or lawyer’s fees (Cass. 3^rd civ., 27 March 2002, No. 00-22.534, Bull. civ. IIIn No. 76, AJDI 2002), before the exercise of this right (Cass. 2^nd civ. 16 September 2009, No. 08-15.741).

It also specifies that the lawyers’ fees borne by the lessee must be reimbursed on the basis of Article L.145-58 of the aforementioned Commercial Code, and not on the basis of Article 700 of the Code of Civil Procedure (CA Aix-en-Provence, 10 May 2016, No. 15/04604)

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Cabinet Gouache obtained a particularly interesting and protective decision for tenants.

In this decision obtained on 15 April 2025, the Court of Justice of Valencia confirms the consequences of the lessor’s right to repent: full coverage of the costs of the proceedings, including lawyer’s fees.

In addition, the lessor was ordered to reimburse the lessee for the costs related to the amicable appraisal that it had to carry out as part of the eviction compensation procedure.

In this case, the lessee had requested from his lessor, by extrajudicial act dated June 8, 2023, the renewal of his commercial lease from September ^{1, 2023.}

However, by extra-judicial act of 7 August 2023, the Lessor served its Lessee with a formal notice prior to refusal of renewal for serious reasons and, by extra-judicial act of 7 September 2023, it issued a refusal of renewal for serious and legitimate reasons.

Faced with this situation, the Lessee summoned the Lessor on 19 June 2024 to contest this refusal and obtain the payment of an eviction indemnity.

It is under these conditions that, on August 8, 2024, i.e. during the proceedings, the lessor exercised its right of repentance, by offering the renewal of the commercial lease.

The decision of the Court of Justice of Valencia extends the costs of proceedings that must be borne by the lessor who exercises his right to repent.

The court held that these costs are not limited to taxable costs alone and ruled as follows:

“In this case, Company X is required to pay the costs of the proceedings which are not limited to taxable costs and must include all costs, including lawyers’ fees, incurred until the end of the proceedings during which the repentance is exercised, and include costs, the cost of any expertise, as well as the costs provided for in Article 700 of the Code of Civil Procedure”

“The owner may, until the expiry of a period of fifteen days from the date on which the decision has become final, evade payment of compensation, provided that he bears the costs of the proceedings and agrees to the renewal of the lease, the conditions of which, in the event of disagreement, are fixed in accordance with the regulatory provisions adopted for this purpose.