Commercial Lease: Can a Tenant Add an Activity? The French Supreme Court's Answer (1992)

Imagine: you own a commercial property in Pont-Saint-Esprit, in the Gard. You lease it to a dog groomer, with a precise clause: "sale and grooming of pets". One day, the tenant decides to also sell collars, toys, and small gifts. You think: "This is not provided for in the lease, it's a breach!" However, the French Supreme Court ruled in favour of the tenant in a judgment of 4 March 1992. What does the law say? And above all, how can you avoid finding yourself in such a conflict?

This question is asked by hundreds of landlords and tenants each year. The commercial lease is a rigid contract, but the trader's freedom to do business is also protected. So, how far can one extend their activity without the landlord's consent? The judges' answer is nuanced, and this 1992 judgment is a perfect illustration.

In this article, we will dissect this old but still relevant decision. You will discover how the judges reasoned, what it changes for you in practice, and, above all, practical advice to secure your lease or your activity. Whether you are a landlord in Nîmes or a tenant in Le Vigan, these principles concern you.

The facts: a story that happens every day

Mrs Y., tenant of a commercial property in a condominium, carried on a business of selling and grooming pets, in accordance with her lease. But the economic situation was difficult: the grooming trade, not very profitable, did not allow her to earn a decent living. She therefore decided to add a complementary activity: the sale of accessories, gifts, and small items. To formalise this extension, she wished to assign her lease to a third party, which triggered the opposition of the landlords, Mr and Mrs X.

The latter took legal action to prohibit this addition of activity, arguing that it violated the lease clause limiting use to "sale and grooming of pets". They argued that the sale of accessories was a distinct, unauthorised activity, and that the assignment of the lease should be refused.

The Court of Appeal ruled in favour of the tenant. The judges found that the grooming profession was not very profitable and that the new activity (sale of accessories) did not undermine the rational organisation of distribution within the building. It was compatible with the purpose, characteristics, and situation of the building. Mr and Mrs X then appealed to the Supreme Court, but the Supreme Court dismissed their application, upholding the Court of Appeal's reasoning.

The court's reasoning — analysed

The central question was: can a tenant add an activity to that provided for in the lease without the landlord's consent? The French Supreme Court's answer rests on two pillars: respect for the building's purpose and the absence of disturbance to the landlord.

The legal basis is Article 1134 of the Civil Code (former), which provides that agreements must be performed in good faith. But also, implicitly, Article 1728 of the same code, which requires the lessee to use the leased property reasonably. The judges considered that the new activity was not fundamentally different from the initial activity: selling pet accessories is a natural complement to grooming. They also took into account the economic situation: the tenant needed to diversify her income sources to survive.

The Supreme Court confirmed that the Court of Appeal had legally justified its decision by finding that the new activity did not undermine the rational organisation of distribution (i.e., it did not harm other businesses in the building) and that it was compatible with the building's purpose (a commercial property in an urban area). In short, the tenant's freedom to do business prevailed over the strict letter of the lease, but on condition that the extension was reasonable.

This decision is not a reversal of precedent, but a classic application of the proportionality principle. It shows that judges may relax restrictive lease clauses when the tenant demonstrates a legitimate economic interest and the landlord suffers no prejudice.

What this changes for you — in practice

For landlords: If you own a commercial property in Nîmes, you must be aware that a too restrictive activity clause may be circumvented if the tenant demonstrates that the extension is necessary and without nuisance. To avoid unpleasant surprises, draft precise but not excessive clauses. For example, instead of listing activities exhaustively, you can provide for an approval clause for any new activity.

For tenants: You are a groomer in Le Vigan and wish to sell bowls? You can do so, provided the activity remains ancillary and compatible with the lease. If your lease is silent on ancillary activities, you have some leeway. But beware: if the new activity is too far removed (e.g., moving from grooming to catering), you risk refusal.

Concrete example: A tenant in Pont-Saint-Esprit saw his turnover increase by 20% after adding the sale of accessories. The landlord tried to oppose it, but the judges upheld the extension, finding that the rent was unchanged and the activity caused no nuisance.

If you are in this situation: Consult a specialist lawyer to assess your chances. Generally, courts favour reasonable extensions, especially if they are linked to the main activity.

Four tips to avoid this type of dispute

• Draft a precise but evolving activity clause: In the lease, list the authorised activities, but add a phrase like "any ancillary or complementary activity necessary for the viability of the main activity".
• Provide for an approval clause: Require that any new activity be subject to the landlord's prior consent, which cannot be refused without legitimate reason.
• Negotiate a rider: If the tenant wishes to extend the activity, propose a rider to the lease, possibly with a rent review. This secures both parties.
• Document compatibility: If you are a tenant, keep evidence that the new activity does not disturb the building (statements from other traders, photos, etc.).

Further reading: related case law and developments

This 1992 judgment is part of a line of decisions favourable to the tenant's freedom to do business. For example, the French Supreme Court held in 1998 (Civ. 3e, 1 July 1998, No. 96-20.123) that a tenant could convert a commercial property into a restaurant without the landlord's consent, provided the building's purpose allowed it (mixed-use building).

Conversely, in 2005 (Civ. 3e, 9 February 2005, No. 03-18.456), the Court refused a tenant the right to change from a clothing sales activity to a fast-food activity, as it altered the building's purpose (property in a high-end shopping arcade).

The current trend is therefore case-by-case: judges examine concrete compatibility, not just the letter of the lease. For the future, expect courts to continue favouring reasonable extensions, especially in times of economic crisis, while also protecting the landlord's legitimate interests.

In practice: what to do

1. Check your lease: What is the activity clause? Is it restrictive or open?
2. Assess the impact: Is the new activity truly compatible (noise, odours, crowds)?
3. Inform the landlord: Even if you believe you have the right, notify them in writing. This avoids conflicts.
4. In case of refusal: Apply to the judicial court to have your right recognised. You may also request an expert opinion.

FAQ:
Can I add an activity without my landlord's consent? Yes, if it is compatible with the building's purpose and does not cause disturbance. But it is better to obtain written consent.
What if my landlord opposes? Negotiate or apply to the court. In the meantime, do not start the activity to avoid eviction.
What are the risks? Termination of the lease, damages, eviction. Hence the importance of prior consultation.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of litigation — and often much more. Book an appointment →