Indexation clause deemed unwritten: what is the tenant's claim?

A deemed unwritten indexation clause is supposed to have never existed. The lessee may thus, within the limit of the 5-year statute of limitations, request the reimbursement of overpayments of rents.

A judgment of the Court of Cassation rendered on January 23, 2025 specifies that the amount of the overpayment of rent must be calculated on the basis the amount of the rent which would have been due in the absence of the application of such a clause. This claim of the tenant will thus be calculated with regard to the rent at the entry into force of the lease.

Facing payment orders for the termination clause of the lease, as well as a leave without an offer of renewal, a lessee opposes, among other arguments in defense, the unwritten nature of the indexation clause and requests reimbursement of overpaid rents.

The Paris Court of Appeal (29 March 2023, No.20/07834) recalls that:

« shall be deemed unwritten the sliding scale clauses providing for a rent indexation only upwards, these clauses having the effect of preventing the readjustment of the rent by not respecting the reciprocity which is the an escalation clause, or whose purpose is to vary the rent, Scale up and down »

and that “it is common ground that the request for a disputed clause to be deemed unwritten is not subject to the five-year limitation period.“

The Court then approved the trial judge who had considered that the sums unduly paid, under a clause supposed to have never existed, must be returned.

On the other hand, the Court of Appeal considers the calculation of the amount of rent to be returned to the tenant to be made with regard to the rent paid on the date of the starting point of the five-year limitation period . For the Court, this limitation period prohibits taking into consideration the original rent:

« On the other hand, contrary to what was held by the first judge, if it is indisputable that the sums unduly paid under a clause supposed to have never existed must be returned, the claim in this respect is an action for recovery of the undue, subject to the five-year prescription Common law ratearticle 2224 of the civil code , so that the restitution claim cannot be calculated on the basis of the initial rent but must be calculated on the basis of the rent paid on the date of the starting point of the limitation period.

(…)

As a result, XX’s restitution claim will be calculated on the basis of the rent paid on the date of the starting date of the limitation period and the overpayment consists of the difference between the sums paid for five years and the sum it should have paid corresponding to the contractual rent. »

The tenant, who considers that the return of illegal indexing not prescribed must necessarily be made with regard to the initial rent and not the amount of the last illegally indexed rent, appeals to the Court of Cassation.

By a judgment delivered on 23 January 2025, the Court of Cassation annulled and partially annulled the appeal judgment.

The Superior Court of Appeals

• On the one hand, that the action for recovery of the undue amount falls within the five-year limitation period under ordinary law. This action does not fall within the abridged two-year limitation period, applicable to actions exercised on the basis of status of commercial leases.

• On the other hand, the action to have a clause of the commercial lease deemed unwritten is not subject to limitation (3rd Civil Division, November 19, 2020, appeal No.19-20.405, published; 3rd Civil Division, November 16, 2023, appeal No. 22-14.091, published)

The Court inferred that the tenant, who had acquitted a rent indexed under an indexation clause subsequently deemed unwritten, may act in payment of sums unduly paid in the five years preceding his claim in court.

The censure of the Court of Appeal intervenes at the stage of the application of these principles.

For the Court of Cassation, “as soon as a deemed unwritten stipulation is deemed never to have existed, the claim for restitution of the overpayment must be calculated on the basis of the amount of rent that would have been due if such a stipulation had not been applied“.

The Court of Appeal could therefore not take into account the rent paid on the date of the starting point of the prescription to determine the tenant’s claim.

From a legal point of view, this solution must be approved in that it draws the consequences of the non-existence of the deemed unwritten indexation clause.

From a practical point of view, the consequences of this decision are important and protective of tenants.

In the event of a dispute with his landlord, a tenant clearly has an interest, in the presence an escalation clause, or, to oppose a claim against the lessor and, if necessary, to take legal action to establish the unwritten nature of the clause and to request a refund of the overpaid rents.

Court of Cassation 3rd Civil Chamber, 23 January 2025 – No. 23-18.643