One-Year Commercial Lease: The Interim Relief Judge Cannot Dismiss Allegations of Sham Without Deciding the Merits

Imagine: you own commercial premises in Cognin, a small commune in Savoie. You signed a one-year lease with a tenant, but at the expiry, you discover that the former operator never actually left the premises. He continues to work there, as if nothing had happened. You want to evict him. Can the interim relief judge grant you a swift remedy?

This question, which arises daily for landlords and tenants, found a clear answer in a judgment of the Court of Cassation of 17 April 1974 (No. 73-12.466). The high court laid down an essential principle: the interim relief judge, seised of an application for eviction against a commercial tenant whose one-year lease has expired, cannot, without resolving a serious dispute, dismiss the sham nature of the lease and the notice to quit when it is argued that the previous tenant never ceased operating the business.

In other words: when the reality behind the paperwork is disputed, the interim relief judge must decline jurisdiction. He cannot evict someone on the basis of a lease and a notice that are alleged to be false, without the trial court first verifying whether it is true or not. This decision, handed down nearly 50 years ago, remains highly relevant for short-term commercial leases, particularly in tourist areas such as Aix-les-Bains where seasonal lets are common.

The facts: a story that happens every day

The case begins in Cognin, Savoie. The company that owns commercial premises grants a one-year lease to Miss X, who later becomes Mrs KORCAZ. The lease ends following a notice to quit given by the owner company on 30 November. So far, everything seems normal: a one-year lease, a notice to quit, the tenant must leave.

But Mrs KORCAZ does not leave the premises. The landlord then applies to the interim relief judge for her eviction. The Court of Appeal upholds the jurisdiction of the interim relief judge, holding that KORCAZ did not oppose the notice and does not benefit from the status of commercial leases (the status that protects traders against eviction without serious grounds).

The case goes to the Court of Cassation. KORCAZ argues that the lease granted to Miss X was a sham: in reality, the former tenant – probably her husband or herself under another identity – had never ceased operating the business on the premises. The one-year lease and the notice to quit were merely a charade to get rid of a de facto occupant who, in reality, benefited from the status of commercial leases. In short, a serious dispute.

The Court of Cassation quashes the Court of Appeal's judgment. It holds that by deciding as it did, when KORCAZ was arguing that the lease granted to Miss X was a sham and that the previous tenant had never ceased operating, the Court of Appeal resolved a serious dispute – something the interim relief judge is not entitled to do. The interim relief judge is a judge of urgency and obviousness, not a trial judge tasked with unravelling complex situations.

The reasoning of the court — explained

To understand this decision, one must first understand the role of the interim relief judge. Interim relief is a swift procedure, intended to take provisional measures when urgency is shown and there is no serious dispute (Article 808 of the Code of Civil Procedure, now Article 834). In other words, the interim relief judge cannot resolve a complex dispute. He can only ascertain a clear situation and take the necessary measures.

In our case, the Court of Appeal considered that KORCAZ did not oppose the notice and did not meet the conditions of the status of commercial leases (Articles L. 145-1 et seq. of the Commercial Code). But the Court of Cassation reminds that the question of whether the one-year lease was a sham – that is, whether it concealed in reality an oral lease or a continuation of the previous operator's occupation – is a serious dispute. The interim relief judge cannot dismiss it with a wave of the hand.

Why? Because if the one-year lease was indeed a sham, then the notice given at the end of that lease might itself be fictitious. And if the previous tenant never ceased operating, this means that the original lease (prior to the one-year lease) may have been tacitly renewed, conferring on the tenant the benefit of the status of commercial leases. In that case, eviction would be impossible without serious grounds, such as non-payment of rent or breach of obligations.

The Court of Cassation does not say that the sham is proven. It says that the interim relief judge does not have the power to decide that. It is for the Tribunal de grande instance (now the Tribunal judiciaire) to decide this issue of substance. This decision is therefore a confirmation of the division of jurisdiction between the interim relief judge and the trial judge. It protects occupants against hasty evictions based on documents whose authenticity is disputed.

What this means for you — practically

For the landlord: if you let commercial premises for a short term (one year or less) and at the expiry you find that the former tenant is still in occupation, do not rely on the interim relief judge to evict him quickly, especially if he challenges the validity of the lease or the notice. You will first need to bring proceedings on the merits to have the sham or nullity of the lease declared. Practical example: in Aix-les-Bains, a landlord let premises to a trader for one year, but the former operator (the seller of the business) remained. The new tenant never actually operated. The landlord sought eviction in interim relief. The judge refused, referring the matter to the trial court. Result: 18 months of proceedings and €15,000 in legal fees.

For the occupying tenant: if you are in occupation after the expiry of a one-year lease and the landlord summons you in interim relief for eviction, you can challenge it by raising the sham. Show that you (or a previous operator) never ceased operating the business. The interim relief judge must decline jurisdiction and refer the matter to the trial court. This gives you time to organise your defence or negotiate a new lease. Caution: you must provide evidence (invoices, witness statements, Kbis extract, etc.) of your continuous operation.

For the purchaser of a business: always check who is actually operating the premises at the time of purchase. A one-year lease signed with a new tenant may conceal a de facto situation. Require a statement from the former operator confirming non-occupation. If you buy a business in Cognin, for example, ask to visit the premises unannounced. If the former owner is still there, be wary.

For the co-owner: if a commercial unit in your co-ownership is let for a short term and the occupant refuses to leave, know that the management company cannot act in interim relief if the reality of the occupation is disputed. A decision of the Tribunal judiciaire will be needed.

Four tips to avoid this type of dispute

• Prepare a joint inventory of fixtures at entry and exit: with dated photos, signatures of both parties, and mention of the identity of the natural person operating the premises. This helps prove who is actually in occupation.
• Require proof of regular operation: for any commercial lease, ask the tenant to provide a Kbis extract, proof of business address, and utility bills in his name. Check that the business is personally operated by the tenant.
• Avoid automatically renewable one-year leases: unless there is a compelling reason (seasonality, works), prefer a 9-year lease in accordance with the status of commercial leases. A one-year lease may be reclassified as a standard commercial lease if the tenant proves he has been operating for more than two years.
• Consult a lawyer before serving a notice to quit: a poorly drafted notice or one based on a contestable lease may expose you to a claim for reclassification and damages for abusive proceedings. In Cognin as elsewhere, prevention is better than cure.

Further reading: related case law and developments

The 1974 solution has been confirmed several times. For example, in a judgment of the Court of Cassation of 13 February 2008 (No. 06-21.432), the judges reiterated that the interim relief judge can only order the eviction of a commercial tenant if the obligation to leave the premises is not seriously contestable. If the tenant invokes a right to renewal or a sham, the interim relief judge must decline jurisdiction.

More recently, case law has evolved on the notion of serious dispute. Courts have become stricter: a mere allegation of sham is not enough; concrete elements (prima facie evidence) are required. But the principle remains the same: as soon as the existence of the right to eviction is doubtful, interim relief is not the appropriate route.

This trend favours bona fide occupants, but it requires landlords to secure their leases from the outset. In tourist regions like Savoie, where seasonal leases are common, vigilance is key. Sham is often invoked by tenants who never actually left the premises. Trial courts are now accustomed to these disputes and require solid evidence.

Checklist before taking action

What to do if you are a landlord and the one-year lease has expired, but the former tenant is still in occupation:

1. Verify the reality of the operation: go to the premises, take photos, question neighbours. Gather evidence that the former operator is no longer there (or that he is still there).
2. Consult a specialist lawyer: he will analyse whether the one-year lease is likely to be reclassified or challenged. Do not start interim relief proceedings alone.
3. Put the occupant on formal notice to justify his right: by registered letter with acknowledgement of receipt, ask him to prove that he personally operates the business. If he does not respond, you will have prima facie evidence.
4. Issue a claim on the merits if the situation is unclear: the Tribunal judiciaire has jurisdiction to decide issues of sham. Prepare for proceedings lasting 12 to 18 months, with legal fees of €2,000 to €5,000 depending on complexity.
5. Negotiate an amicable departure: sometimes an eviction indemnity or an offer of a new lease can resolve the conflict faster than a trial.

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