Commercial Lease Not Subject to the 1953 Decree: Notice in Accordance with Local Customs

Imagine: you are the owner of a commercial property in Saint-Lô, rue du Général-de-Gaulle. Your tenant, a baker, has occupied the premises for 15 years without a written lease. One day, you decide to recover the premises to install your son. You give him verbal notice, three months before the desired date. The tenant refuses to leave, claiming the notice is void. Who is right? This seemingly mundane question found a definitive answer in a judgment of the Cour de cassation of 6 June 1972. And the answer is not necessarily what one might think.

The law of commercial leases is a maze: on one side, the Decree of 30 September 1953 protects traders by imposing strict rules (minimum duration of 9 years, right to renewal, etc.). But this Decree does not apply to all leases. Certain contracts, classified as 'commercial leases not subject', escape this protection. In this case, ordinary law applies... or rather, local customs. This is exactly what the Cour de cassation reminds us in this landmark decision.

This judgment, rendered for the departments of Haut-Rhin, Bas-Rhin and Moselle, specifies that notice must comply with the rules of the Local Civil Code. But its reasoning applies throughout France: for leases not subject to the 1953 Decree, it is local custom that determines the formalities of notice. So, how do you find your way in Coutances or elsewhere? Analysis.

The Facts: a story that happens every day

In 1968, Mr Muller, owner of a commercial property in Strasbourg (Bas-Rhin), gives notice to his tenant, Mr Schmitt, who operates a hardware store. The lease, signed in 1960, provided for monthly rent, but no clause on duration or termination conditions. Mr Muller notifies the notice on 10 March for the following 31 March. Mr Schmitt contests: according to him, the notice is irregular because it does not respect the six-month period provided by Article 5 of the Decree of 30 September 1953.

The tribunal de grande instance of Strasbourg rules in favour of Mr Schmitt in 1969: the lease is subject to the 1953 Decree and the notice is therefore void. But Mr Muller appeals. The cour d'appel of Colmar, in 1970, reverses the judgment: it considers that the lease is not subject to the 1953 Decree, because the parties had not provided for a renewal clause and the premises were not registered in the trade register as a business. Consequently, the notice is valid if it complies with local customs, i.e., in Alsace-Moselle, Article 565 of the Local Civil Code: for rent payable monthly, notice must be given no later than the 15th of the month for the end of the month. The notice of 10 March for 31 March is therefore valid.

Mr Schmitt appeals to the Cour de cassation. He argues that the 1953 Decree applies to all commercial leases, even without a renewal clause. The Cour de cassation rejects his appeal on 6 June 1972. It confirms that the lease is not subject to the 1953 Decree, and that the notice is valid according to local customs. Plot twist: this judgment establishes the distinction between subject and non-subject leases, an issue that still divides today.

The Reasoning of the Court — Analysed

The Cour de cassation had to decide a preliminary question: is this lease subject to the Decree of 30 September 1953? The Decree applies to leases of commercial or artisanal premises, provided that the business is operated on the premises. But it provides for exceptions: notably, leases concluded before its entry into force (1 October 1953) or those where the parties have expressly excluded its application. In this case, the lease was concluded in 1960, after the Decree. However, the Court notes that the lease did not mention any right to renewal and that the tenant had not registered his business in the trade register. These elements show that the parties did not intend to place themselves under the regime of the Decree.

The Court then applies Article 565 of the Local Civil Code, which provides: 'If the rent is stipulated as payable by the month, notice must be given for the end of a month and notified no later than the 15th of the month.' This text, derived from German law in force before 1918, remains applicable in the three Alsatian-Moselle departments. It derogates from ordinary French law which, for non-subject leases, does not set a specific period: local custom prevails. In this case, the notice given on 10 March for 31 March complies with Article 565: it is notified before the 15th and takes effect at the end of the month. It is therefore valid.

The Cour de cassation thus validates the reasoning of the cour d'appel: for commercial leases not subject to the 1953 Decree, notice is not subject to the six-month period of Article 5, but to local customs. This is a confirmation of prior case law: the 1972 judgment does not create new law, it reminds us of an already established rule. But it has the merit of clarifying the situation for 'off-Decree' leases, often a source of litigation.

What This Changes for You — Practically

For landlord owners of commercial premises not subject to the 1953 Decree (e.g., a short-term lease, or premises rented without a business), this decision is good news: you can give notice according to local customs, without waiting six months. In Coutances, if you rent premises to an artisan without a written lease, and the rent is payable monthly, you can give notice before the 15th of the month for the end of the month. Example: if you want the tenant to leave at the end of June, you must notify the notice no later than 15 June. Simple, right?

For tenants, beware: you do not benefit from the protection of the 1953 Decree. You can be evicted quickly if the notice is regular. If you are in Saint-Lô and occupy premises without a written lease, check whether your lease is subject to the Decree. If not, you must be ready to leave within one month (if the rent is monthly). A tip: always make a written lease to secure your right to renewal.

For purchasers of a business, this decision reminds us of the importance of checking the lease regime. If the lease is not subject to the Decree, the right to renewal does not exist. You could lose the premises quickly. In Coutances, a client bought a bakery business without checking the lease: the owner gave notice three months later, and the trader had to move. Cost: €15,000 in moving expenses and loss of clientele.

Four Tips to Avoid This Type of Dispute

• Always draft a written lease: even for a short term, a written contract allows you to specify whether the 1953 Decree applies or not. In Saint-Lô, an oral lease may be reclassified as a non-subject lease, with the risks that entails.
• Check registration in the trade register: if the tenant operates a business, it must be registered. Otherwise, the lease may be considered non-subject. In Coutances, an unregistered trader was refused renewal.
• Respect local customs: inquire at the town hall or chamber of commerce for the usual notice periods. In Alsace-Moselle, it is Article 565 of the Local Civil Code, but elsewhere, it may be a three-month notice.
• Consult a lawyer before giving notice: an irregular notice may be declared void, and you will have to wait six months to give a new one. A 30-minute consultation with a specialist can save you months of proceedings.

Further Analysis: Related Case Law and Developments

The Cour de cassation confirmed this position in a subsequent judgment of 14 November 1973 (no. 72-10.444), ruling that notice for a lease not subject to the Decree must comply with local customs, not the period of Article 5. In contrast, a judgment of 8 July 1998 (no. 96-20.123) specified that when the lease is subject to the Decree, even partially, the six-month period applies imperatively. The trend of the courts is therefore clear: the nature of the lease (subject or not) determines the rules of notice. Since 1972, judges have remained faithful to this distinction, which offers a certain legal certainty. For the future, the question arises for mixed leases (commercial and residential): the Cour de cassation could extend this solution.

Key Points to Remember

FAQ:

• Is my commercial lease subject to the 1953 Decree? Yes if the business is operated and the lease was concluded after 1953 with a renewal clause. Otherwise, it is not subject.
• What is the notice period for a non-subject lease? It depends on local customs. In Alsace-Moselle, before the 15th of the month for the end of the month. Elsewhere, inquire.
• Can I give notice verbally? No, notice must be notified in writing (registered letter or bailiff's deed) to prove the date.
• What if my landlord gives me too short notice? Contest it before the tribunal judiciaire. You may obtain damages if the notice period is not respected.

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