Reference decision: cc • N° 96-20.204 • 1998-07-01 • View the decision →
Imagine: you are the owner of commercial premises in Caen, rue de la Gare. Since 1991, you have leased these premises to a trader. In 1997, you decide to renew the lease, but you believe the rent is undervalued. You serve a notice to quit (an act by which the landlord notifies the tenant of their intention to terminate the lease, or to renew it on new terms) with an offer of renewal, as provided for in Article L. 145-9 of the Commercial Code. But you wait more than two years before applying to the court to have the new rent fixed. Too late, says the court. Your action is inadmissible. That is exactly what the Court of Cassation ruled in this judgment of 1 July 1998.
Why such a short deadline? Because the legislature wanted to secure contractual relations. The tenant must know where they stand quickly. Otherwise, they might be forced to pay an unforeseen retrospective rent, which would jeopardise their business.
What happened in this case? Landlords gave notice to their tenants with an offer of renewal on 25 August 1989, for a lease expiring on 1 March 1991. The tenants accepted the renewal, but the landlords only sent their memorandum for rent review on 3 August 1994, more than two years after the new lease took effect. The Caen Court of Appeal declared the action inadmissible, and the Court of Cassation confirmed. A lesson in law for all landlords.
The facts: a story that happens every day
The story begins in Caen, where Mr and Mrs X... are the owners of commercial premises leased to Mr and Mrs Y... under a lease dated 1 March 1991, for a term of 9 years. On 25 August 1989, the landlords give notice to the tenants with an offer of renewal. The lease is therefore tacitly renewed on the same terms, but the landlords consider the rent too low.
They then decide to seek a rent review. To do so, they must serve a memorandum (a written document setting out their claims and the desired rent amount) for rent review on the tenants. They send this memorandum on 3 August 1994. The problem: the renewed lease took effect on 1 March 1991. So more than three years elapsed between the effective date and the service of the memorandum.
The tenants contest: they argue that the action for rent review is inadmissible because the two-year deadline has passed. The landlords retort that this deadline does not apply when there has been a notice with an offer of renewal. The Caen Court of Appeal rules against them. For the judges, the two-year deadline runs from the effective date of the renewed lease and is mandatory. The landlords appeal to the Court of Cassation.
The reasoning of the court — broken down
The Court of Cassation (the highest French judicial court) upholds the decision of the Caen Court of Appeal. It relies on Article 33 of the Decree of 30 September 1953 (now codified in Article L. 145-56 of the Commercial Code), which provides that the landlord may apply for rent review "within two years following the date of renewal of the lease".
The judges explain that this deadline is a limitation period (a period after which one can no longer bring a legal action). It cannot be interrupted or extended. It does not matter that the landlord gave notice with an offer of renewal: the deadline always runs from the actual renewal of the lease. In this case, the lease was renewed on 1 March 1991, and the memorandum was served on 3 August 1994, more than two years later. The action is therefore inadmissible.
The landlords tried to circumvent the rule by arguing that the notice with an offer of renewal opened a new deadline. The Court of Cassation rejects this argument: the notice is only a preliminary step, but the starting point of the deadline remains the date of renewal. This is a strict interpretation, but consistent with the objective of legal certainty: the tenant must be promptly informed of the rent they will have to pay.
What this changes for you — concretely
For landlord owners: if you have just renewed a commercial lease and you think the rent is undervalued, you have two years to act. After this period, you definitively lose the possibility of requesting an increase. Concrete example: in Ifs, a landlord leases premises to a bakery since 2020. The lease is renewed in 2023. If they want to revise the rent, they must send their memorandum before 1 March 2025. If they wait until 2026, it is too late.
For tenants: this decision is a protection. If your landlord demands a higher rent after more than two years, you can object to the inadmissibility of their claim. You are entitled to keep the current rent until the next term.
For purchasers of commercial premises: check whether the previous owner has commenced an action for rent review. If the two-year deadline has expired, the new owner cannot claim a higher rent.
If you are in this situation, you must act quickly. The service of the memorandum must be made by bailiff's writ (act of a judicial officer) or by registered letter with acknowledgement of receipt, and must state the desired rent amount and the grounds justifying the claim.
Four tips to avoid this type of dispute
- Note the date of renewal of the lease in your diary. As soon as the lease is renewed, set a reminder at 18 months to prepare your memorandum for rent review. Do not wait until the last minute.
- Consult a specialist lawyer as soon as you consider a rent review. A professional will help you meet deadlines and draft a compliant memorandum. In Caen, several lawyers specialising in property law can assist you.
- Do not rely on a notice with an offer of renewal to extend the deadline. As the Court of Cassation reminds, the deadline always runs from the actual renewal, not from the service of the notice.
- In case of a dispute, systematically check the date of service of the memorandum. If you are a tenant and your landlord acts after two years, raise the issue of inadmissibility at the first hearing.
Further reading: related case law and developments
This decision is part of a consistent line of case law from the Court of Cassation. Already, in a judgment of 9 November 1993 (n° 92-10.264), the Court held that the two-year deadline for applying for rent review was a limitation period and could not be suspended. More recently, in a judgment of 24 September 2008 (n° 07-14.622), the Court specified that this deadline applies even if the landlord served a notice with an offer of renewal after the renewal of the lease.
The trend is therefore clear: the courts are uncompromising on compliance with this deadline. No circumstances, not even the landlord's good faith, can rectify it. In the future, the legislature may extend this period, but for now, the rule is strict but clear.
What you absolutely must remember
Practical FAQ:
- Can I review the rent after 2 years if I have given notice? No, the deadline runs from the renewal, not from the notice.
- What should I do if I am a tenant and my landlord acts after 2 years? You must raise the inadmissibility of their claim in court.
- Does this deadline also apply to residential leases? No, only to commercial leases.
- Can I interrupt the deadline by sending a simple letter? No, only a bailiff's writ or a registered letter with AR is valid.
- What is the risk if I exceed the deadline? You definitively lose the right to demand a rent increase for that period.
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. Book an appointment →
📌 Does this apply to your situation? Maître Cécile Zakine, French real estate lawyer, practises throughout France.
→ Avocat bail commercial |
→ Browse all our legal articles
