Commercial lease: no right of pre-emption for tenant on sale to a family property company

Imagine: you are the owner of commercial premises in Hendaye, let to a ready-to-wear shop. You decide to sell this property to a family property company (SCI) that you have set up with your spouse and children. The tenant, who hoped to buy it himself, sues you, claiming that you should have offered him the property first. I come across this scenario regularly in my practice. Until now, the courts were divided: does the commercial tenant's right of pre-emption apply when the buyer is a family property company (SCI)? In a judgment of 5 March 2026 (No. 24-11.525), the Court of Cassation ruled: no, a sale to an SCI, even if formed exclusively between parents or in-laws, does not trigger this right of pre-emption. Analysis of this decision and its practical consequences.

The facts: a story that happens every day

Mr X is the owner of commercial premises in Saint-Jean-de-Luz, which he has let to the company Fenix for several years. In 2022, he decides to sell the property. Rather than offering it to his tenant, he transfers it to SCI du Plessis Bouchet, a company he has formed with his wife and two children. The tenant, considering that this sale prejudices him, sues Mr X and the SCI. He relies on Article L. 145-46-1 of the Commercial Code, which establishes a right of pre-emption in favour of the commercial tenant in the event of a sale of the leased premises. According to him, the sale to a family SCI is equivalent to a sale to a descendant of the landlord, which is expressly excluded from the right of pre-emption. But the SCI, although family-based, has a separate legal personality from its members. The Commercial Court of Bayonne rules in favour of the tenant. Mr X and the SCI appeal. The Court of Appeal of Rennes, seised of the matter, sets aside the judgment. The tenant appeals to the Court of Cassation. The Court of Cassation, in its judgment of 5 March 2026, dismisses the appeal and confirms that the sale to an SCI, even a family one, does not constitute a transfer to the spouse, ascendant or descendant of the landlord. Consequently, the tenant does not benefit from the right of pre-emption.

The reasoning of the court — analysed

The question put to the Court of Cassation was simple but delicate: Article L. 145-46-1 of the Commercial Code provides that the commercial tenant has a right of pre-emption in the event of a sale of the leased premises. However, this right does not apply in the event of a sale to the landlord's spouse, or to an ascendant or descendant of the landlord or his spouse. The law adds that a sale made in favour of a property company (SCI), even if formed exclusively between parents or in-laws, does not constitute such a transfer. This last sentence, introduced by a 2014 reform, was at the heart of the dispute. The tenant argued that the sale to a family SCI should be treated as a sale to a close relative, because the SCI is only a screen. The Court of Cassation rejected this argument. It recalls that an SCI has a legal personality distinct from its members. It does not matter that all the members are relatives of the landlord: the sale is made to the company, not to the natural persons. In other words, the letter of the law is clear: the SCI is not a close relative within the meaning of the article. In doing so, the Court confirms earlier case law (Civ. 3e, 17 September 2020, No. 19-16.701) and rejects any extensive interpretation. In short, the legislator intended to protect asset transfers within the family, but only when they are direct, without the interposition of a legal entity. However, if the SCI were fictitious or formed for a fraudulent purpose, the solution might be different. But in this case, nothing demonstrated that.

What this changes for you — practically

If you are an owner landlord: you can sell your commercial premises to a family SCI without having to offer the property to your tenant first. This is a safety valve for asset transfers. For example, in Saint-Jean-de-Luz, you can transfer your shop to the SCI you manage with your children, without fear that the tenant will block the transaction. But be careful: the right of pre-emption revives if you sell to a non-family third party. In that case, you must notify your offer to the tenant, who has one month to accept (the time limit under Article L. 145-46-1). If you omit this formality, the tenant may obtain damages or, in some cases, the nullity of the sale.

If you are a commercial tenant: this decision reduces your chances of acquiring the premises you occupy when the owner sells them to a family SCI. You cannot rely on the right of pre-emption. However, if the owner sells to a third party, you retain this right. undefined, I have come across cases where tenants, thinking they were protected, were disappointed. My advice: negotiate a pre-emption clause in your lease, which will give you a contractual right of pre-emption, even in the case of a sale to a family SCI. This is an additional safeguard.

If you are a buyer through an SCI: you can buy with peace of mind, without fear of action by the tenant based on the right of pre-emption. But make sure the SCI is not fictitious, because the courts could reclassify the sale as a direct sale to the members.

Four tips to avoid this type of dispute

• Draw up a solid lease: include a pre-emption clause in favour of the tenant in the event of a sale, even to a family SCI. This clarifies everyone's rights.
• Comply with notification formalities: if you sell to a non-family third party, notify the offer to the tenant by extrajudicial act (bailiff) or by registered letter with acknowledgement of receipt, respecting the one-month period.
• Consult a lawyer before selling: a professional will check whether the transaction falls within the legal exceptions and will save you from costly litigation.
• For the tenant: register your right of pre-emption with the Trade and Companies Register (RCS) to be informed in the event of a sale.

Further reading: related case law and developments

This decision is part of a consistent line of case law. Already, in a judgment of 17 September 2020 (No. 19-16.701), the Court of Cassation had ruled that a sale to a family SCI did not trigger the right of pre-emption. The present decision confirms this and clarifies that the nature of the SCI (family or not) is irrelevant. However, the question of the fictitious nature of the SCI remains open: if the SCI is a screen to conceal a sale to a close relative, the right of pre-emption could be restored. But the burden of proof lies with the tenant, which is difficult. The trend is therefore favourable to owners wishing to organise their assets through SCIs. In the future, the courts may be called upon to clarify the criteria for fictitiousness, but for now, the rule is clear.

Summary and next steps

FAQ:

• Can my tenant buy my premises if I sell to my family SCI? No, the right of pre-emption does not apply.
• What if I am a tenant and my landlord sells to a family SCI? You cannot oppose it, but you can negotiate a pre-emption right in the lease.
• What are the risks if I do not respect the right of pre-emption? The tenant may claim damages or nullity of the sale if he proves prejudice.
• Does this decision protect all sales to SCIs? Yes, as long as the SCI is not fictitious. If it is formed solely to circumvent the law, the judge could reclassify it.

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