The delivery of the commercial premises: an obligation at all times for the lessor.

The lessor is required with regard to the lessee to deliver the premises and to ensure their peaceful enjoyment. Failure to comply with these essential obligations is punishable. Thus, it is in the lessor’s interest to invoke the statute of limitations against the lessee who is the victim of a failure to deliver. But what is this prescription and from when does it run?  It is to these questions of law that the judgment of the Court of Cassation of 10 July 2025 answers.

The disputed facts

A commercial lease agreement provides for the provision by the lessor of a plot of land, sheds and offices, so that its lessee can carry out its logging, timber trading and sawmill activity. During the lease, there is a change of ownership. This new owner amputates nearly a third of the leased land to rent it to a new company.

The tenant, who is aware of the breaches of the new lessor, does not immediately take legal action. Faced with multiple and serious breaches, the tenant finally assigns him to terminate the lease at his exclusive fault.

The procedure

The decision of first instance

At first instance, the Court:

• Holds that the lessor has committed contractual faults by failing to fulfil his obligation to deliver,
• Cancels the commercial lease, that is to say that it terminates the contract, on a date that it determines to the exclusive fault of the lessor,
• Judges that the lessor has incurred its contractual liability and orders it to pay various compensation to the lessee; in particular for the loss of the lessee’s business.

The appeal judgment

On appeal, the landlord opposes to his tenant the prescription of his action in liability.

For the lessor, the action of the lessee is prescribed both on the basis of the biennial liability of Article L.145-60 of the Commercial Code, and the liability of common law.The lessee replies that the five-year limitation period under ordinary law of Article 2224 of the Civil Code is applicable to his action, but that it has not begun to run because the lessor has not ended the amputation of the land, and, in the alternative, that the action is not time-barred.

The Court of Appeal answers that:

• The applicable limitation period is that of ordinary law of five years,
• The limitation period of the termination action based on the lessor’s failure to comply with its obligation of delivery or peaceful enjoyment runs from the day of knowledge of the reduction in the leased area and the difficulty of access to the premises.

In these circumstances, the Court finds inadmissible as prescribed part of the tenant’s claims (Court of Appeal, Colmar, 1st Chamber, Section A, 17 May 2023 – No. 21/01877).

The tenant is appealing in cassation.

The commented decision of 10 July 2025, published in the bulletin

Reminder of the provisions applicable to the commercial lease and the limitation period

The Court of Cassation issues a reasoned decision pursuant to Articles 1709, 1719 and 2224 of the Civil Code.

It thus recalls that Article 2224 of the Civil Code relating to the limitation period under ordinary law provides that:

“Personal or movable actions are time-barred after five years from the day on which the holder of a right knew or should have known the facts allowing him to exercise it.

For the application of these commercial lease provisions, the Court specifies that:

• Article 1709 of the Civil Code provides that the lease of things is a contract by which one of the parties undertakes to make the other enjoy a thing for a certain time, and for a certain price that the latter undertakes to pay him,
• Article 1719 of the Civil Code relating to the essential obligations of the lessor provides that: the lessor is obliged, by the nature of the contract, and without the need for any particular stipulation, to deliver the leased item to the lessee and to ensure its peaceful enjoyment during the term of the lease.
• Article 2224 of the Civil Code provides for personal or movable actions to be prescribed by five years from the day on which the holder of a right knew or should have known the facts allowing him to exercise it.

The statement of principles: the prescription of actions based on the failure of the lessor to issue

The Court of Cassation recalls the provisions of common law relating to the limitation of personal and movable actions. The limitation period, applicable to the lessor’s breaches of its obligation to issue, is that of ordinary law of 5 years.

However, in order to decide the dispute, the Court must also determine the starting point of this limitation period.

Therefore, the Court states that the obligations to deliver and guarantee the peaceful enjoyment of the premises are continuous, that is to say, payable throughout the duration of the lease.

Ongoing obligations are defined as obligations whose performance is part of the duration. These obligations are found in contracts with successive performance, that is to say in contracts in which the performance of the obligations is continuous, and in contracts with staggered performance. Conversely, instant bonds are executed in an instant (for example: sale).

Thus, a commercial lease is characterized by a service that extends over time and the respective obligations of the parties are due until the end of the contractual relationship.

In this case, the Court of Cassation recalls very clearly that the lessor’s obligations are continuous and payable throughout the term of the lease.
Ongoing

obligations of the lessor and prescription

The essential obligations of the lessor being continuous, the Court of Cassation concludes that “the persistence of the lessor’s breach of them constitutes a fact allowing the lessee to exercise the action for termination of the lease“.

The obligation to deliver and guarantee the lessor’s peaceful enjoyment extends throughout the contractual relationship and is renewed day after day.

Thus, each day passed without the contractual breach being terminated has the effect of “renewing the breach” and therefore shifting the starting point of the limitation period.

Annulment of the judgment of appeal

In this case, the Court of Appeal considered that the tenant’s action was time-barred on the grounds that: “the limitation period of the termination action based on the breach by the lessor of its obligation to deliver or peaceful enjoyment runs from the day of knowledge of the reduction in the leased area and the difficulty in accessing the leased shed“.

The Court of Cassation censures this reasoning. It considers that the Court cannot consider the action as time-barred when the lessor did not put an end to its offence: “By ruling thus, while the reduction in the basis of assessment of the leased property persisted, the Court of Appeal violated the aforementioned texts.“.

Failure to issue: a five-year prescription starting from the termination of the contractual breach

It follows from the foregoing, on the one hand, that the Court of Cassation confirms that the obligations of delivery and peaceful enjoyment are indeed subject to the five-year limitation period under ordinary law of Article 2224 of the Civil Code.

On the other hand, the limitation period only begins to run when the offense ceases.

It follows from the foregoing that the continuing nature of the Lessor’s obligations has the effect of delaying the limitation period as long as the infringement persists. A tenant, who would like to avoid the procedures, could feel reassured about the possibility of acting against his landlord.

However, the lessee must not fall into the trap of inaction and be particularly attentive to the facts alleged against his lessor. Indeed, the starting point of the limitation period against the different offenses of the lessor will not necessarily be the same. Accompaniment by a lawyer to analyze breaches and, if necessary, interrupt the prescription is essential.