Use of the termination clause and judicial termination
The order to pay, referring to the termination clause, must specify the date from which the termination must occur. Judicial termination must be justified by a sufficiently serious breach.
The order to pay, referring to the termination clause, must specify the date from which the termination must occur. Judicial termination must be justified by a sufficiently serious breach.
A commercial lease is concluded in a building subject to the status of co-ownership.
Two orders to pay charges, relating to the termination clause, are issued by the lessor to the lessee company.
The lessor assigns the lessee company to note the termination clause and, in the alternative, to pronounce the termination of the commercial lease. The lessor also requests payment of an arrears and an occupancy allowance.
Before the Court of Appeal, a first plea is invoked by the lessor.
He complains that the judgment rejected his request for a finding of termination of the lease by acquisition of the termination clause and to have the occupancy allowance run from the date of the judgment.
According to the Lessor, the termination clause, inserted in the commercial lease, providing for automatic termination, takes effect one month after an order to pay remains unsuccessful.
Consequently, according to the lessor, the Court of Appeal violated the provisions of Article L 145-41 of the Commercial Code by refusing to find that the termination clause was operative on the grounds that the lessor did not specify the date from which the termination was to take place under the termination clause provided for in the lease.
The High Court notes that the Court of Appeal found that the lessor was relying on the issuance of two payment orders relating to the resolutory clause in support of its request for a statement of termination of the lease, without specifying from what date this termination was to take place.
According to the High Court, the Court of Appeal rightly held that this application should be dismissed, since a lease that had already been terminated could not be terminated again.
Before the Court of Appeal, another plea was raised by the lessee.
He complains that the judgment ordered the judicial termination of the lease and ordered him to pay a certain amount in respect of the arrears of rents and charges, as well as to set an occupancy allowance from the date of the judgment until the premises are vacated.
However, according to the lessee, the Court of Appeal pronounced the termination of the lease by merely noting a non-payment of rents and charges without ruling on the seriousness of this breach, even though the charges claimed were disputable and disputed.
Consequently, according to the Lessee, the Court of Appeal violated Article 1184 of the Civil Code, as drafted prior to the order of 10 February 2016.
The High Court upholds this plea.
It recalls that said Article 1184 implies resolution, which must be requested in court.
It observes that the judgment of the Court of Appeal held that the tenant is liable for a certain sum in respect of rents and charges, without examining whether the non-payment of rent and charges was a sufficiently serious breach to justify the judicial termination of the commercial lease.
Consequently, the judgment is quashed in that it condemns the tenant to have paid sums in respect of the arrears of rents and charges.
Court of Cassation, 3rd Civil Chamber, 27 February 2025 No.23-17.898
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Challenging an order to pay
A technical argument is notified by our firm to your lessor to demonstrate that the order to pay for the termination clause is unlawful, the rents for which he requests payment cannot be claimed.
A technical argument is notified by our firm to your lessor to demonstrate that the order to pay for the termination clause is unlawful, the rents for which he requests payment cannot be claimed.
Commercial Real Estate
Resist the lessor's request for judicial termination of the commercial lease
You have just received an order to execute for the express termination clause of the lease, or a summons from your lessor to terminate the lease in court.
We will have to react quickly and appropriately.
You have just received an order to execute for the express termination clause of the lease, or a summons from your lessor to terminate the lease in court.
We will have to react quickly and appropriately.
And resources on the same topic: "Acquisition of resolutory clauses"
Immobilier commercial
Commercial lease and collective proceedings from the tenant's point of view
The opening of collective proceedings: the commercial lease is not automatically terminated. The article examines I) the continuation of the lease and its consequences; II) the interruption of shares and the freezing of previous rents. Support avoids procedural pitfalls.
Immobilier commercial
Is the commercial lease continued in the event of collective proceedings?
The opening of collective proceedings, whether a safeguard, a reorganization and even a liquidation, does not automatically entail termination of the lease.
Immobilier commercial
The effects of a termination clause inserted in a commercial lease may be suspended
The lessee who is issued an order for the termination clause may request deadlines to perform his obligation, including when the breach alleged by the lessor does not concern the payment of rents.
