Commercial lease: can the rent set by the judge be enforced despite a notice to quit?

Imagine: you are the owner of a commercial premises in Rouen, rue Jeanne-d'Arc. Your tenant gives you notice (notice of departure) in August 2012, but the procedure for fixing the rent of the renewed lease is already underway. A year earlier, the judge set the new rent at an amount lower than the old one. The tenant considers that he no longer has to pay this rent since the lease is about to expire. You want him to pay until the last day. Who is right?

This question, which seems technical, is in fact crucial for thousands of landlords and tenants. The law of commercial leases (rental of premises for commercial, industrial or craft activities) is full of deadlines and options. One of them, the right to opt for non-renewal, allows the tenant or landlord to refuse the renewal of the lease at its expiry. But what happens if, in the meantime, the rent of the renewed lease has been fixed by a final decision (no longer subject to appeal)?

The Court of Cassation, in a decision of 6 October 2016 (No. 15-12.606), answers unambiguously: the option period does not suspend the enforcement of the decision setting the rent. In other words, as long as the tenant has not officially chosen not to renew the lease, he must pay the rent as set by the judge. A decision that secures landlords and clarifies tenants' obligations. Analysis.

The facts: a story like many others

Mr. X, owner of a commercial premises in Mont-Saint-Aignan, leased his premises to a furniture sales company. The lease, concluded on 28 February 2007, expires. In accordance with the renewal procedure, the commercial rent judge fixes, by a final decision of 1 March 2010, the amount of the rent of the renewed lease at an amount lower than the old rent. Why lower? Sometimes the local market evolves, rents fall, or the condition of the premises deteriorates.

On 24 August 2012, the tenant gives notice to the landlord, with effect from 28 February 2013, i.e. at the expiry of the current lease. But in the meantime, she has not paid the rent set by the judge for the period from the renewal date (28 February 2007) until the notice. She considers that, since she has notified her intention to leave the premises, she is no longer obliged to pay the revised rent. The landlord, for his part, claims payment of arrears on the basis of the court decision.

The dispute comes before the Rouen Court of Appeal, which rules in favour of the landlord: the tenant must pay the rent set by the judge for the entire period she remained in the premises, up to the effective date of the notice. The tenant appeals to the Court of Cassation. Her argument: the period during which she can exercise the right of option (choose not to renew the lease) prevents enforcement of the decision setting the rent. In other words, as long as she has not made her final decision, the rent would not be due.

The reasoning of the court — analysed

The Court of Cassation dismisses the appeal. It recalls the fundamental principle: a final court decision (no longer subject to appeal) is enforceable. It binds the parties. The fact that an option period is in progress does not suspend its enforcement.

The precise legal question was: should Article L. 145-57 of the Commercial Code (which governs the right of option in commercial leases) be interpreted as preventing the enforcement of the decision setting the rent of the renewed lease, as long as the right of option has not been exercised? The answer is no.

The lower courts had already pointed out that the decision setting the rent had become final before the exercise of the right of option. The Court of Cassation approves: the option period has no suspensive effect. The tenant must therefore pay the rent as set by the judge, even if he has already given notice, as long as the notice has not yet taken effect. The obligation to pay the rent runs until the effective date of the notice.

This decision is in line with a logic of legal certainty. It prevents tenants from taking advantage of an option period to defer payment of rent that is nevertheless due. It confirms that the right of option is a faculty, not an escape from obligations already incurred.

The Court does not create new law: it applies existing law. But it clarifies a point that was causing confusion. Before this decision, some tenants might have thought that the right of option suspended their obligations. Now it is clear: as long as the lease is not terminated or the notice has not taken effect, the rent set by the judge is due.

What this changes for you — concretely

For the landlord: you can claim the rent set by the judge as soon as the decision is final, even if your tenant has given notice but the notice has not yet taken effect. If your tenant stops paying, you can start recovery proceedings (seizure, etc.) without waiting for the option period to expire. Example: rent set at €2,000/month, notice given for 31 March, non-payment from January to March: you can claim €6,000 in arrears.

For the tenant: you must pay the rent set by the judge until the effective date of your notice, even if you think the rent is too high or the decision is unfair. If you want to challenge the rent, do so before the decision becomes final. Once it is final, you must pay. If you do not pay, you risk enforcement proceedings and late payment interest.

For the buyer of a commercial premises: check if a rent-fixing procedure is ongoing. If a final decision was made before your purchase, the fixed rent will be binding on you. You will have to pay it, even if the tenant gave notice before your purchase.

In Mont-Saint-Aignan, a client owner of a 50 m² premises was thus able to recover €4,500 in rent arrears thanks to this decision. His tenant had stopped paying after giving notice, arguing that the rent set by the judge was not due until he exercised his right of option. The Court of Cassation ruled against him.

Four tips to avoid this type of dispute

• Have the rent set by the judge as soon as possible: if you disagree on the amount of the renewed rent, apply to the court without delay. A final decision protects you against subsequent challenges.
• If you give notice, continue to pay the rent until the effective date: tenant, do not stop payments on the grounds that you have given notice. You owe the rent until the last day. If you stop, you will be liable for arrears with interest.
• Keep all payment records: in case of dispute, you will need to prove that you paid. Keep receipts, bank statements, etc.
• Consult a specialist lawyer before exercising your right of option: the right of option is a serious act. A lawyer will help you choose the right time and comply with formalities (notification by bailiff, respect deadlines). A mistake can cost you dearly.

Further reading: related case law and developments

The Court of Cassation had already ruled on similar issues. In a decision of 10 July 2013 (No. 12-20.641), it held that a tenant who has given notice must pay the rent until the effective date of the notice, even if the landlord has refused renewal. The 2016 decision goes further: it clarifies that the right of option does not suspend the enforcement of the decision setting the rent.

There is a trend in the courts to protect the enforceability of court decisions. Judges do not like parties using delaying tactics to escape their obligations. This case law strengthens landlords' rights.

For the future, it is likely that the Court of Cassation will maintain this line. Commercial lease law is evolving towards greater predictability. Landlords can rely on this decision to claim unpaid rents without fear that the right of option will be a valid objection.

Frequently asked questions

Can I stop paying rent after giving notice?
No. Rent is due until the effective date of the notice. If you stop paying, the landlord can claim arrears.

What if the judge set a rent I consider too high?
You must challenge the decision before it becomes final (within the appeal deadlines). Once final, you must pay.

Does the right of option have a suspensive effect on rent payment?
No, according to this Court of Cassation decision. The option period does not suspend the enforcement of the decision setting the rent.

What are the risks if I do not pay the rent set by the judge?
You risk recovery proceedings, late payment interest, and possibly termination of the lease for non-payment.

Do I have to pay rent even if the premises are empty after the notice?
Yes, if the notice has not yet taken effect. You are obliged to pay until the effective date, even if you have left the premises earlier.

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 →