Secure the drafting and assignment of the commercial lease

The conclusion of a commercial lease, as well as its assignment, are never simple administrative formalities.Behind the signing of a contract lie considerable economic, legal and strategic stakes.A poorly drafted lease or a poorly prepared assignment can jeopardize not only the operation of a business, but also the investment of a life for the tenant, or the valuation of an asset for the lessor.

It is therefore essential to secure these operations by respecting the essential steps, anticipating pitfalls and surrounding yourself with sound advice. And, above all, it is fundamental to remember that, given the technicality of the subject and the number of legal pitfalls, the use of a lawyer specializing in commercial leases is not an option but a real insurance against risks.

Secure the drafting of the commercial lease

A commercial lease is much more than just a contract: it is a legal framework that determines the relationship between landlord and tenant for many years. However, practice shows that the slightest inaccuracy or omission can give rise to lengthy and costly litigation.

Before signing, it is therefore imperative to proceed with method: first check certain prior elements, then write the essential clauses rigorously, finally attach the required documents.

Pre-checks: laying a solid foundation

Premises: check their compatibility

The first question to ask is simple: are the premises suitable for the planned activity?

• The co-ownership regulations: they may prohibit certain activities. An “exclusively bourgeois” occupancy clause means that the building is reserved for housing. Renting an apartment to do business with would therefore be tantamount to signing a null and void lease.
• The administrative use of premises: in large municipalities, transforming a dwelling into a commercial premises requires an administrative authorization. Omitting this formality exposes the tenant to sanctions and the risk of eviction.
• The state of the soil: some past activities (printing, garage) may have left pollution. The law requires the lessor to inform the lessee. But in practice, only an environmental diagnosis can secure the situation.

The specialist lawyer intervenes here like a guardrail. He will be able to detect, upon reading the co-ownership regulations or a title deed, incompatibilities that the tenant or even the lessor would have neglected.

The tenant: ensure their identity and capacity

The policyholder must be clearly identified and checked for seriousness:

• For a company, request a Kbis extract, check its corporate name, capital and especially the identity of the person authorized to sign.
• Check that the planned activity is compatible with the premises.
• Ensure that the tenant has the necessary administrative authorisations (IV licence, health approval, authorisation for classified facilities, etc.).

A lawyer here helps to avoid errors of form: for example, a company signing through an unentitled manager can make the lease unenforceable.

The lessor: check its legal capacity

The lessor must have the authority to sign the lease. It seems obvious, but practice demonstrates the opposite.

• Indivisibly, all co-divisions must sign.
• In the case of common property in a married couple under community, both spouses must consent.
• In the event of a mandate, it must be special and annexed to the lease.

The lawyer ensures that all such signatures are obtained. Otherwise, the lease may be challenged, and the activity of the tenant compromised.

To remember: from the verification phase, the support of a lawyer specializing in commercial leases avoids the constitution of a legally fragile lease, or even null.

The essential clauses: writing the rules of the game

Once the verifications have been made, it is necessary to proceed to the drafting of the lease. And this is where most of the traps focus. Each clause must be clear, balanced and legally sound.

Designation of premises

Address, surface, floor, annexes (parking, cellar): nothing should be left in the dark. Since 2014, an entry inventory is mandatory.

The destination of the place

The destination specifies the permitted activities. An excessively restrictive clause limits the tenant’s freedom; an excessively broad clause (“all shops”) may, on the contrary, lead to an increase in the rent at renewal.

A lawyer will find the balance, by drafting a clause that protects the lessor without unnecessarily restraining the tenant.

The duration of the lease

The minimum legal leasehold is for nine years. The tenant may give notice every 3 years. Exceptions exist (monovalent premises, long-term leases).

Rent

The rent must be serious and not fictitious. It can be fixed, progressive or variable (e.g. calculated on turnover). A rent exemption may be provided at the beginning.

The indexation clause

It must be based on a legal index (ICC, ILC or ILAT) and comply with the Monetary and Financial Code. It cannot play only upwards.

The lawyer secures this drafting: many poorly drafted indexation clauses are annulled by the courts, resulting in heavy financial consequences.

Security deposit, charges, works and repairs

• The security deposit earns interest beyond two terms of rent.
• The charges must be clearly distributed (some can no longer be charged to the tenant since the Pinel law).
• The work must be supervised: who pays what? what permissions?

These technical clauses are sources of permanent litigation. The lawyer anticipates and secures by avoiding inaccuracies.

Assignment and sublease

• The transfer of goodwill cannot be prohibited, but the transfer of the only lease can be.
• Subletting is subject to the written permission of the Lessor.

Termination clause

It allows automatic termination in the event of non-compliance, but must comply with strict legal conditions (order, one-month period).

Return of premises

The lease must specify the fate of the developments (property of the lessor or the lessee) and the state of restitution.

Remember: in writing, every word counts. A lawyer specializing in commercial leases is the architect of the contract: he ensures that the building will not collapse in the event of a dispute.

The appendices: the strength of the supporting documents

Some appendices are mandatory (diagnostics, DPE, risk status, environmental appendices for large areas). Others are recommended (plans, asbestos diagnostics, safety reports).

Again, the lawyer knows the customs and obligations. He ensures that the contractual file is complete and enforceable.

Secure the assignment of the commercial lease

A commercial lease is not fixed. During its lifetime, it can be divested, usually with goodwill. But this operation presupposes a transfer of rights and obligations particularly regulated by law and by the lease itself.

The prerequisites for the transfer: respect the rules

The clauses of the lease

Most leases frame the transfer: requirement of agreement of the lessor, obligation to transfer with the fund, joint and several guarantee of the transferor.

A lawyer analyzes the existing lease: he identifies the constraints, advises on the steps and prevents the assignment from being cancelled for non-compliance with the contract.

The municipalities’ right of first refusal

Since the Dutreil law, municipalities can pre-empt commercial, artisanal or leasehold rights. This right must therefore be purged before any assignment.

The lawyer ensures that deadlines are met (the municipality has two months to respond) and secures this often forgotten step.

The conditions precedent

Promise of transfer, obtaining financing, agreement from the lessor: all conditions that must be clearly provided for.

The deed of transfer: a sensitive document

The deed must include mandatory information: identity of the parties, price, payment terms, disposition of the security deposit, registered creditors, etc.

The lawyer is here the guarantor of the validity. An omission may open the way to appeals or a challenge of the act.

In addition, the assignment must be notified to the lessor by bailiff, failing which it is not enforceable. The lawyer oversees these formalities.

Conclusion: the essential role of the lawyer in securing the drafting or assignment of the commercial lease

The commercial lease is a complex contract, which commits the parties for a long time and conditions the success or failure of an activity.

At each stage — due diligence, drafting of clauses, appendices, assignment — there are many legal risks: nullity of the lease, loss of land, disputes over rent, tax disputes, unforeseen termination.

This is why involving a lawyer specializing in commercial leases is essential.

• For the lessor, it is a question of protecting the value of their property and guaranteeing stable income.
• For the tenant, the very survival of their business is at stake.
• For both, it is the certainty of a solid contract or assignment, in accordance with the law, balanced and defensible before a judge.

In practice, a lawyer’s fees represent a minimal investment compared to the cost of litigation or the loss of a commercial lease.