Interpretation of the clause relating to charges and recovery of undue

A tenant may claim reimbursement of charges if he demonstrates a lack of express stipulation in the commercial lease imposing these charges on him. 

The decision commented on relates to a commercial lease concluded before the Pinel Law. 

As a reminder, the latter has inserted in the status of commercial leases articles relating to the distribution of charges, namely articles L.145-40-2, R.145-35 to R 145-37 of the Commercial Code, which apply to leases concluded or renewed from 5 November 2014

 The lease in question, which included a unilateral promise of sale for the benefit of the lessee, is registered. 

The lessor having died, the lessee company assigns the heirs in authentic reiteration of the sale, repetition of the charges unduly paid and compensation of the balance with the sale price. 

The Court of Appeal rejected the application for the repetition of charges and ordered the tenant company to pay unpaid rents. 

Before the High Court, the lessee company maintains that the charges due by the lessee are listed exhaustively. 

In other words, according to the lessee company, only the charges explicitly specified and due by the lessee under the terms of the lease were to be re-invoiced. Charges not included in the lease list were not due.   

In addition, according to the tenant company, the Court of Appeal could not reject its request to deduct from the rents the amount unduly paid for charges for the following erroneous reasons:
 

• that it had executed the said lease for 9 years without reservation, 

• and that it could no longer maintain, given the payment of expenses for 9 years, that these expenses were not due given a terminological imprecision of the lease.
   

The Court of Cassation recalls that, according to the old wording of Article 1134 of the Civil Code (formerly Article 1103), only legally formed agreements take the place of law to those who have made them. 

It follows that if the parties to a commercial lease contract are free to agree on the distribution between them of the charges, taxes, duties and fees related to this lease, only the contractual stipulations determine which of them weigh on the lessee. 

Thus, according to the High Court, the Court of Appeal should have looked precisely at which payments corresponded to the charges that the lessee requested to be repeated and whether they had been charged to him by a stipulation of the contract. 

In these circumstances, the judgment of the Court of Appeal is quashed in that it rejects the request for repetition of charges and orders the tenant company, which has become the owner, to pay unpaid rents.  

This case law is constant. 

For leases concluded before the Pinel Law, the lessor may not re-invoice charges to the lessee in the absence of clear and express mentions.  

Court of Cassation, 3rd Civil Chamber, February 13, 2025, No. 23-17.978