Conditions of validity for subletting commercial premises

In a ruling handed down on March 8, the French Supreme Court (Cour de cassation) reiterates the conditions governing the validity of subletting commercial leases, and specifies that irregular subletting of commercial premises does not in itself cause damage to the lessor.

Cases where subleasing a commercial lease is possible

The sublease of commercial premises involves the tenant making all or part of the premises available to another person, a subtenant, in return for the payment of rent.

Although in principle prohibited, subletting of commercial leases may be authorized under certain conditions.

First, the lessor must have given his authorization. This may be in writing (stipulated in the initial lease contract or formulated in an amendment to the commercial lease) or tacit (resulting from a clear and unequivocal attitude on the part of the lessor).

Next, the tenant must inform the lessor of his intention to sublet the premises by deed of commissioner or by registered letter with acknowledgement of receipt. If the landlord does not reply within 15 days, his agreement is deemed to have been given.

Once the parties have reached an agreement, a sublease contract is signed between the tenant and the subtenant. The contract contains a number of elements, including: a description of the premises to be sublet and its use, the sublease rent, the apportionment of charges between the tenant and subtenant, and the duration of the sublease.

Subletting is not without consequences for the main tenant. He receives rent from the sub-tenant, but must continue to pay the amount due to the lessor. The principal tenant must also ensure that the sub-tenant complies with the terms of the lease, otherwise he or she may be held liable.

Irregular subletting of commercial leases: the consequences

In the event of irregular subletting, the lessor may refuse to renew the lease on serious and legitimate grounds. However, he is not entitled to demand termination of the sublease or eviction of the subtenant. In a ruling handed down on March 8, 2023, the French Supreme Court (Cour de cassation) points out that, generally speaking, the lessor cannot take legal action against the sub-tenant.

In this case, a tenant had taken the initiative of subletting commercial premises without asking the lessor's permission. The latter considered that he had suffered a loss due to the loss of the sub-rentals which, according to him, were owed to him. The court disagreed, considering that the premises had been returned after the sublease and that there was no evidence that the amount of rent paid by the subtenant exceeded that owed by the main tenant.

Consequently, the lessor cannot take direct action against the sub-lessee. In this case, it was only in the event of default by the principal tenant that he could have taken action against the latter, up to the amount of the sub-lease.