Commercial lease: the interim relief judge may order an expert assessment to evaluate the eviction compensation

Imagine: you are the owner of a commercial premises in La Motte-Servolex, and your tenant announces that they are leaving the premises. You offer them an eviction compensation (the money paid to the tenant who has to leave) of €50,000, but they demand €150,000. Negotiations stall, no one seizes the court, and you remain in the dark. What can you do?

This is exactly what happened in the case decided by the Court of Cassation on 18 December 2002 (appeal no. 01-14.202). The high court ruled: the interim relief judge (the judge who decides in urgent matters) may order an expert assessment (an evaluation by an expert) to determine the amount of the compensations, even if no specific text on commercial lease provides for it. A decision that reassures landlords and tenants stuck in fruitless negotiations.

But what does this change in practice? And how can you apply it to your situation? I will explain everything.

The facts: a story that happens every day

Mr X, owner of a commercial premises in Chambéry, leases his premises to the company Carella, which operates a business. One day, the landlord decides not to renew the lease: he wants to recover his premises. In commercial lease law, the owner who refuses renewal must pay the tenant an eviction compensation, intended to compensate for the loss of the business (clientele, equipment, etc.). On the other hand, the tenant who remains in the premises without title must pay an occupation compensation (a kind of increased rent).

Problem: the two parties cannot agree on the amounts. Mr X proposes one sum, the company Carella demands another. Negotiations go on for months without result. No trial judge (the court competent to decide the dispute) is seized. The landlord, fed up, decides to ask the interim relief judge to order an expert assessment to evaluate both compensations.

Company Carella opposes this. Their argument: the status of commercial leases (the set of specific rules) would be a complete system that prevents the interim relief judge from intervening. For them, only a full trial procedure is possible.

The Court of Appeal rules in favour of the landlord and orders the expert assessment. Company Carella appeals to the Court of Cassation. The Court of Cassation, in its judgment of 18 December 2002, dismisses the appeal and confirms the decision of the lower court.

The reasoning of the court — dissected

The core of the debate concerns Article 145 of the Code of Civil Procedure (CPC). This text allows any person who has a legitimate interest (a valid reason) to request the interim relief judge to order a preparatory inquiry (such as an expert assessment) before any trial. The objective? To preserve evidence or establish facts that could be used in a future trial.

The question posed to the Court of Cassation was: does this power of the interim relief judge apply in commercial lease matters, even though the status of commercial leases (law of 30 June 1926, now Articles L.145-1 et seq. of the Commercial Code) provides specific rules for calculating eviction and occupation compensations?

The Court answers yes. Its reasoning is simple: no text in the status of commercial leases prohibits the application of Article 145 CPC. In other words, the two sets of rules coexist. The interim relief judge can therefore perfectly order an expert assessment as long as the applicant justifies a legitimate interest.

In this case, the Court of Appeal had noted that negotiations had failed and that no trial judge had been seized. The landlord therefore had a legitimate interest in knowing the exact amount of the compensations before starting a procedure. The Court of Cassation validates this reasoning: it is a sovereign decision (i.e., within the discretion of the lower court).

What few people know is that this decision is part of a consistent line of case law: the Court of Cassation has always favoured access to expert assessment before trial, to avoid unnecessary litigation or to facilitate amicable settlement.

What this changes for you — in practice

This decision is a breath of fresh air for landlords and tenants who find themselves in a deadlock. Here is what it means for you.

If you are a landlord: you can, as soon as discussions with your tenant on the amount of eviction or occupation compensation fail, apply to the interim relief judge for an expert assessment. However, be careful: there must be a legitimate interest. For example, if the tenant refuses any negotiation or if the differences in figures are significant (as in our example: €50,000 vs. €150,000), the expert assessment will provide you with an objective evaluation. undefined, I have seen cases where an interim expert assessment helped to unblock a situation and avoid a two-year trial. The cost of the expert assessment (usually between €1,000 and €5,000) is often shared between the parties.

If you are a tenant: you can also request an expert assessment if the landlord offers you a derisory compensation. Be careful: the interim relief judge is not there to decide the merits of the dispute, but only to order a technical measure. You retain all your rights to later challenge the amount set by the expert.

If you are a buyer of a business in Chambéry: this case law also protects you. In the event of a dispute over the amount of eviction compensation due by the former owner, you can request an interim expert assessment to secure your investment.

In practice, the time to obtain an interim order is quick: allow 2 to 4 months. The expert then has 3 to 6 months to file their report. In short, this is a much faster solution than a full trial which can last 1 to 2 years.

Four tips to avoid this type of dispute

• Negotiate in writing: as soon as you start discussions on the eviction compensation, formalise your offers and counter-offers by registered letter with acknowledgement of receipt. Keep all evidence of your exchanges. This will help you demonstrate the failure of negotiations before the judge.
• Set a deadline: in your offer, indicate a response time (e.g., 30 days). After this deadline, you can apply to the interim relief judge without waiting.
• Use an amicable expert: before any procedure, you can appoint an insurance expert (such as an accountant specialising in commercial leases) for an informal evaluation. This can serve as a basis for discussion and avoid interim proceedings.
• Anticipate in the lease: when signing the lease, include a clause setting out the method of calculating the occupation compensation (e.g., 1.5 times the last rent). This will reduce sources of conflict.

Further reading: related case law and developments

This 2002 decision has since been confirmed. For example, in a judgment of 11 March 2009 (no. 08-11.123), the Court of Cassation reiterated that the interim relief judge may order an expert assessment even if the dispute concerns the very existence of the right to eviction compensation (e.g., in case of termination of the lease for non-payment of rent).

More recently, courts have tended to broaden the scope of Article 145. Thus, the interim relief judge may also order an expert assessment to evaluate the value of a business, the loss suffered by a tenant, or the amount of work to be carried out. In short, as soon as a technical element is necessary to inform a future trial, an expert assessment is possible.

For the future, this case law remains relevant. The reform of civil procedure (notably the decree of 11 December 2019) did not modify Article 145. Landlords and tenants can therefore continue to rely on this decision to unblock their situations.

Summary and next steps

FAQ:

1. Can I request an interim expert assessment to evaluate the eviction compensation?
Yes, as soon as negotiations have failed and no trial judge has been seized. You must apply to the President of the Judicial Court sitting in interim relief.

2. What are the deadlines?
Allow 2 to 4 months to obtain the order, then 3 to 6 months for the expert report.

3. What is the cost?
The expert's fees are generally shared between the parties. They vary from €1,000 to €5,000 depending on complexity. Legal fees are extra.

4. What if the expert assessment is not enough?
The expert report will serve as a basis for an amicable agreement or for a full trial. You can then apply to the Judicial Court to decide the dispute.

5. Can I challenge the ordered expert assessment?
Yes, you can appeal the interim order. But be careful: the appeal is not suspensive, the expert assessment can begin.

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