Works carried out by the lessee and authorisation by the lessor

Whether during the regularization of the commercial lease, or during its course, the lessee may wish to carry out work on the leased premises. Points of attention

First of all, it should be remembered that if the work carried out constitutes a significant modification of the rented premises, it may allow the rent to be de-capped, in accordance with Article L. 145-34 of the Commercial Code.

On the other hand, if it is improvement work., the lessor who became the owner by virtue of the accession may not invoke them, under Article R.145-8 of the Commercial Code, until the second renewal following their execution to request the rent de-capping (Cass. 3rd Civil Chamber, September 7, 2022, No.21-16.613).

In addition, where the Tenant has performed work for adapt the premises to their contractual destination or proceed to Ensuring compliance with new standards, this work cannot be invoked by the lessor to set the rent of the renewed lease at rental value (Cass. 3ème civ., October 31, 1989, No. 88-15403; Cass. 3ème civ., January 20, 2009, 07-20780).

Finally, work that has been authorized by the lease cannot constitute a reason for de-capping (Cass. 3rd Civil Chamber, 22 Jan. 2003, AJDI 2003, p. 349).

Once these consequences have been identified, it should be recalled that the lessee must imperatively respect the stipulations of the commercial lease in order to carry out the work.

Work carried out during the commercial lease by the lessee: authorisation from the lessor

Indeed, commercial leases generally provide for the need to obtain authorization from the lessor before carrying out the work, especially when it concerns structural work.

This is the case when the lease provides, for illustration, a clause of the type:

“The Lessee may not carry out in the leased premises any construction, wall drilling and, in general, any work affecting the structural work without the prior express authorisation of the Lessor“.

In these cases, written permission from the lessor is required.

The commercial lease may also provide for prior intervention by the architect of the building, and that the costs of his intervention will be borne by the tenant.

It is imperative to be very attentive to the drafting of the clauses of the lease relating to the work.

For illustration, when the tenant needs to perform upgrading work and that the lease provides for prior authorization from the lessor to proceed with all works this authorization must actually be obtained, under penalty of termination of the lease (Cass. 3ème civ., 26 Sept. 2001, Bull. civ. III, No. 102).

In general, when the rules provided for in the commercial lease are not respected, the lessor may issue a summons for the termination clause, to the lessee, for the removal of the work carried out irregularly.

In the absence of restoration, the lease may be terminated.

To this end, the lessor may bring an action in summary proceedings or on the merits.

However, the lease can sometimes provide a great deal of freedom to the lessee in terms of carrying out work, so that the lessor’s authorisation will not always be necessary.

Work carried out by the lessee of a commercial lease: other authorisations to be obtained

Nevertheless, and in any event, it should be recalled that when the work affect the common areas of a condominium building, a with the permission of the lessor;, and especially the meeting of co-owners, is necessary, as provided for by Law No. 65-557 of 10 July 1965 establishing the status of co-ownership of built buildings (Articles 25 et seq.).

In addition, the construction, renovation or repair of the storefront of a store, without change of purpose of the commercial premises, or addition of surface, is subject to a prior declaration of work.

The prior declaration is mandatory if the work involves the modification of the exterior appearance of the building: modification or replacement of the window, change of joinery or other materials, drilling of a new opening, new paint color for the facade in particular.

The prior declaration file for a commercial storefront modification must be filed with the town hall of the municipality where the commercial establishment is located.
In some cases, a building permit may be required.

It should also be remembered that in hotel matters, specific legislative provisions exist.

Articles L. 311-1 et seq. of the Tourism Code provide that the owner of a building in which a hotel is operated may not oppose, notwithstanding any stipulation to the contrary, the execution of equipment and improvement work that the tenant, owner of the business, carries out at his expense and under his responsibility when this work concerns the distribution of water, gas and electricity, the installation of the telephone, radio and television receivers, sanitary equipment, sewerage, the installation of central heating or hot or air conditioning distribution, the installation of elevators, freight elevators and dumb lifts, the installation of kitchens and pantries, the construction of swimming pools, even if this work must result in a change in the distribution of the premises.

In the event that these affect the structural work of the building, they can only be undertaken, in the absence of the owner’s agreement, after a favourable opinion of specific commissions.

The lessee must, before proceeding with the work, notify his intention to his owner by registered letter with acknowledgment of receipt, attaching to his request, an execution plan and a descriptive and estimated estimate of the planned work.

The date of completion of the work carried out by the lessee: attention to the refusal of renewal of the commercial lease

Finally, attention should also be paid to the date of completion of the work.

Indeed, it is recommended that the lessee be attentive to the contractual term of his lease, since the agreement of the lessor on the works planned by the lessee does not constitute acceptance of the renewal of the lease.