Claim affecting the commercial premises, damage suffered and action for compensation

Damage, disorders, defects, damage, deterioration, or non-conformities may be revealed as soon as the lease is taken or after several years of use, disturbing enjoyment, disrupting the activity and thus causing harm. Why act?

The first reflex of the lessee must be to provide evidence of the damage suffered. This involves taking photographs, calling witnesses or requesting the service of a commissioner of justice who will draw up a report of his findings.

The lessee must also declare the claim to his insurer, if necessary through a broker or the insurance agent. This approach protects its interests:

– Both with regard to the insurance company which is likely to compensate it for the damage suffered. It is important that the policyholder respects the deadlines and terms provided for in the insurance contract so as not to be denied coverage.

– That with regard to the lessor who could oppose the lessee the failure to comply with the clause of the commercial lease requiring him to inform him to oppose the assumption of the repair work.

Following his first steps, the lessee must ask himself the question of the nature of the disorders at the origin of the disturbances of enjoyment.

If these disorders are not clearly and quickly identified by the expert appointed by the policyholder’s insurer, it will be in the interest of the policyholder to use the services of an amicable expert (project manager, design office or specialised companies, etc.).

On the basis of the report obtained, the lessee must question the terms and conditions of the commercial lease involved.

The comparison of the technical opinions, obtained from the experts, with the analysis of the obligations provided for in the lease and the distribution of these between the parties will make it possible to identify the negotiation levers or the actions to be deployed with regard to the lessor.

Thus, if the disorders are caused by obsolescence, that is to say wear and tear. of the work for a certain period, and that this obsolescence was expressly charged to the lessee under the terms of the lease by derogation from Article 1755 of the Civil Code, the latter could be deprived of the right to act against his lessor.

On the other hand, if these disorders affect the structure of the rented premises, the lessor must be held responsible, the one before:

– provide premises suitable for the exercise of the activity authorized in the destination clause of the lease and guarantee the lessee the peaceful enjoyment of the premises by virtue of his obligation of delivery, provided for in Article 1719 of the Civil Code,

– bear the cost of the work intended to remedy disorders of the nature of those referred to in article 1469 of the Civil Code i.e. those to be subject to major repairs, it being specified that the said work can no longer be transferred at the expense of the lessee in leases concluded or renewed after the so-called “Pinel” Law, this transfer being prohibited by the terms of Article R 145-35 of the Commercial Code.

In such a case, the lessee would have every interest in giving formal notice to the lessor to have to fulfil its obligations.

If necessary, if the technical elements necessary for the establishment of a claim with the lessor were not sufficient, the lessee could apply to the judge for interim relief for the appointment of a judicial expert.

The mission of such an expert is in principle to determine the origin and nature of the disorders but also to specify the work required to remedy the disorders, their execution times, as well as their cost.

The judicial expert will provide all the elements likely to allow the court which will be seized to evaluate the damages of any nature, direct or indirect, material or immaterial, resulting from the damage, disorders, vices, damage, deterioration, or non-conformities, in particular the operating disorder.

This financial loss may include disturbances of enjoyment already suffered and those that may result from restoration work.

In case of emergency, if the disorders cause harm that must be stopped without delay, procedural techniques can be put in place:

– it is possible to support an application for the purpose of being authorized to summon before the judge summary proceedings at the specified time or at short notice (Article 858 of the Code of Civil Procedure),

– a summons with a fixed date may also be considered before the trial judge (Articles 840 to 844 of the Code of Civil Procedure).

In parallel with the judicial procedure and expert appraisal operations, the Parties may seek an amicable solution.

The filing of the forensic expert’s report is generally the occasion for a reconciliation between the lessee and the lessor. It could make it possible to establish the bases of a memorandum of understanding equivalent to a transaction.

Stéphane Ingold

Associate Lawyer