Disturbance of enjoyment: beware of abnormal and excessive work!

The obligation to issue is one of the fundamental obligations of the commercial lessor. Consecrated by Article 1719 of the Civil Code, it requires the lessor to make premises available to the lessee in accordance with their contractual purpose and to ensure their peaceful enjoyment throughout the term of the lease.

This obligation is of particular importance in the commercial context where the operation of a business requires optimal operating conditions. The lessor must therefore ensure that the leased premises allow the lessee to carry out his activity normally, without being hindered by excessive disturbances.

Peaceful enjoyment is not limited to the mere provision of premises. It also includes the obligation for the lessor to refrain from any act likely to disturb this enjoyment and to protect the lessee against disturbances from third parties. This protection extends to nuisances caused by work, whether carried out by the lessor himself or by third parties.

Suffering clauses: a delicate balance

Faced with this obligation, contractual practice has developed the suffering clauses, allowing the lessor to exonerate its liability in the event of necessary work. These clauses, validated by case law, authorize the lessor to carry out work without the lessee being entitled to compensation or a reduction in rent.

However, case law has progressively framed the scope of these clauses. They can only play if the inconveniences caused by the work remain normal and proportionate. As soon as the disturbances become abnormal and excessive, the suffering clause can no longer be invoked to exonerate the lessor from his liability.

As such, it should be recalled that the obligation to issue is an “essential” obligation of the lessor, in the absence of which the lease cannot exist and which it cannot discharge on the lessee.

Moreover, Article 1170 of the Civil Code provides that “Any clause that deprives the essential obligation of the debtor of its substance is deemed unwritten.”

The obligation to issue is eminently of public order.

The decision of the Paris Court: rigorous enforcement

In the case decided on 24 April 2025, the Paris Court of Justice heard a dispute concerning major renovation work carried out in a building housing office and training premises.

The landlord company had undertaken large-scale work, including asbestos removal, cleaning, structural work, enclosed and covered work, plumbing and electricity. This work, started in January 2020, continued until April 2022, a duration of about 18 months.

The lease agreement contained a particularly extensive suffering clause, providing that the lessee must “suffer without compensation or rent reduction, regardless of the duration, even if it exceeds forty days” all the work carried out in the building.

The lawfulness of the suffering clauses is well established, it being regularly held that the lessee must bear without compensation the necessary work, provided that they do not create abnormal disorders (Cass. 2^nd civ. 1991, No. 90-14600; Cass. 3^rd civ., June 1, 2005, No. 04-12200; Cass. 2^nd civ. 2008, No. 07-14631; Cass. 2^nd civ. 2009, No. 08-19972; Cass. 2^nd civ. 2012, No. 11-28170; Cass. 2^nd civ. 2013, No. 12-25816; Cass. 3^rd civ., 30 June 2021, No. 17-26.348).

In this decision obtained by the firm Gouache, the court followed the position of the High Court, retaining the responsibility of the lessor.

Indeed, depending on the tenant’s means, the judges considered that the significant duration of the work (eighteen months) and the high intensity of the noise produced characterized the abnormality of the disturbance of enjoyment.

The evidence retained by the court is particularly instructive: impossibility of holding telephone conversations, need to close the windows without eliminating nuisances, “deafening” and “extremely important” noises, obvious disruption of the training activity provided by the receiving company.

Assessing harm: a pragmatic approach

To quantify the damage suffered, the court chose a compensable period from September 17, 2020 to April 30, 2022, or 590 days, corresponding to the period during which the disturbances were sufficiently demonstrated.

The compensation has been set at 30% of the initial rents excluding taxes and charges due.

Beef producersThis pragmatic approach illustrates the need for a concrete assessment of the damage, taking into account the specificities of the activity carried out and the real impact of the disturbances on commercial exploitation.

This decision of the Court of Paris is a useful reminder that the obligation to issue the commercial lessor constitutes an intangible basis of the lease contract. Suffering clauses, although lawful, cannot defeat this fundamental obligation when disturbances of enjoyment are of an abnormal and excessive nature.

Indeed, it is common ground that the lessor cannot, even by means of a suffering clause, free itself from its obligation to issue, in particular in terms of noise pollution (Cass. 2^nd civ. 1991, No. 90-14600; Cass. 3^rd civ., ¹ June 2005, No. 04-12200; CA Limoges 28 Jan. 2016, No. 14/00869).

The Paris Court of Appeal recalled this position in a judgment of 13 May 2020, relating, as in this case, to renovation work:

“If the validity of these clauses is not discussed, it is common ground that the lessor cannot, under their cover, subject the lessee to an abnormal disturbance of enjoyment” (CA Paris, 5, 3, 13 May 2020, No. 18/27287).

For policyholders facing similar situations, this case law opens up prospects for compensation, subject to providing evidence of the excessive nature of the disturbances suffered. The establishment of an evidentiary file, including in particular detailed findings of the commissioner of justice, proves to be decisive for the success of such actions.

This decision is part of a case law approach protecting the commercial lessee, confirming that the contractual balance cannot be upset to the detriment of the peaceful enjoyment of the leased premises.

TJ Paris, April 24, 2025, No. 21/14569