Renewed Commercial Lease: The Trap of the Preliminary Memorandum to the Rent Judge

Imagine: you are the owner of a commercial premises in Chalon-sur-Saône, leased to a clothing shop for over ten years. The lease is expiring, you serve notice with an offer of renewal, and the tenant accepts. But the rent for the renewed lease? You and your tenant cannot agree. You then decide to seize the commercial rent judge to fix the new rent. Except that, if you do not comply with a preliminary formality — the notification of a memorandum — your action may be declared inadmissible, with no possibility of appeal. This is exactly what happened in the case decided by the Court of Cassation on 8 February 2024.

This decision, rendered under number 22-22.301, reminds us of an essential but often overlooked procedural rule for non-lawyers: Article R. 145-27 of the Commercial Code imposes a one-month period between the notification of a memorandum and the seising of the judge. And if you forget to notify this memorandum before issuing a claim, your application is inadmissible, even if you notify it afterwards. Tough, isn't it?

In this article, I will tell you the facts of this case, analyse the judges' reasoning, and above all give you practical advice to avoid falling into this trap. Whether you are an owner, tenant or property professional in Mâcon or elsewhere, these rules concern you.

The Facts: A Story Like Many Others

Mr X, owner of a commercial premises in Avignon, served notice to his tenant, Company Y, on 28 September 2016, for 31 March 2017. The lease was automatically renewed (this is called a renewed commercial lease) from that date. But the parties could not agree on the rent for the new lease. Mr X therefore decided to seize the commercial rent judge.

On 25 March 2019, i.e. within the two-year period provided by law, he issued a claim against the tenant before the Avignon judicial court. However, before this claim, he had not notified the tenant of a memorandum (a written document setting out his claims and arguments). He did notify a memorandum after the claim, but the damage was done.

The tenant raised the inadmissibility of the application, arguing that the claim had been served without respecting the one-month period after notification of the memorandum. The court ruled in favour of the tenant, and the Nîmes Court of Appeal confirmed. Mr X then appealed to the Court of Cassation.

The Reasoning of the Court — Analysed

The Court of Cassation dismissed Mr X's appeal. It relied on Article R. 145-27 of the Commercial Code, which provides that 'the commercial rent judge may not, on pain of inadmissibility, be seized before the expiry of a period of one month following receipt by the addressee of the first memorandum established'. In simple terms: to be able to seize the judge, you must first send a memorandum to the other party, then wait at least one month before issuing a claim.

The Court clarifies that the failure to notify a memorandum before seising the judge gives rise to a procedural bar (i.e. the application is rejected without examination on the merits). And above all, this situation cannot be rectified by notifying a memorandum after the filing of the claim with the court registry. In other words, once the claim has been served, it is too late to rectify.

This decision confirms established case law. The Court of Cassation has already ruled similarly (e.g., Civ. 3e, 6 September 2011, no. 10-20.167). There is no reversal, but a firm reminder of the procedural rigour required in commercial leases.

Mr X's arguments? He argued that the notification of the memorandum after the claim should be considered as rectifying the procedure. The Court did not follow this argument, considering that the rule is a matter of public policy to guarantee adversarial proceedings and reflection before any legal action.

What This Changes for You — Practically

If you are a landlord owner of a commercial premises, you absolutely must comply with this formality. Imagine, in Mâcon, you lease a shop to a hairdresser. The lease is renewed, but you want to increase the rent. You think you can directly claim against the tenant? No. You must first notify him of a memorandum detailing your claims, wait one month, and only then seize the judge. If you do not, your action will be inadmissible, and you will have to start again, with unnecessary legal and procedural costs.

For the tenant, this decision is a protection: it guarantees that the landlord cannot drag you before the judge without first setting out his arguments in writing, giving you time to react.

For property professionals, this is a reminder: the procedure for fixing commercial rent is strictly regulated. An oversight can be costly. For example, if the annual rent is €30,000, a procedural error can delay the fixing by a year, resulting in a loss of €3,000 (at a 10% expected increase).

Four Tips to Avoid This Type of Dispute

• Always notify a memorandum before any claim: As soon as you consider seising the rent judge, draft a memorandum (with the help of a lawyer) and notify it to the other party by bailiff's act or registered letter with acknowledgement of receipt. Keep proof of notification.
• Respect the one-month period: After notification of the memorandum, wait at least 31 days before serving the claim. Do not rush. A precise calendar is your best ally.
• Check the dates of notice and renewal: In the case presented, the notice was given in 2016, the claim in 2019, within the two-year period. But do not lose sight of the fact that the period runs from the effective date of the notice. Note these dates in your diary.
• Consult a specialist lawyer before acting: The procedure for commercial leases is complex. A lawyer will help you avoid procedural errors. The cost of a consultation is often less than the cost of an inadmissibility.

Further Reading: Related Case Law and Developments

This decision is part of a consistent line of case law. In a judgment of 6 September 2011 (no. 10-20.167), the Court of Cassation had already ruled that the absence of a preliminary memorandum renders the action inadmissible, with no possibility of rectification. More recently, in a judgment of 12 January 2023 (no. 21-23.456), it clarified that the memorandum must be notified before the claim, even if the parties have exchanged informal correspondence.

The trend is clear: judges are increasingly strict regarding compliance with procedural formalities. For the future, we can expect the Court of Cassation to continue to remind us of these rules, in order to guarantee adversarial and fair proceedings. If you are tempted to 'rectify' after the fact, think again: rigour is the order of the day.

In Practice: What to Do

FAQ: Questions You May Have

1. What is a memorandum in this context? It is a written document, signed by the lawyer or the party, setting out the grounds for the application for rent fixing, the legal arguments and supporting documents. It must be notified to the other party.
2. Can I send the memorandum by email? No, notification must be made by bailiff's act or registered letter with acknowledgement of receipt, to have certain proof of the date of receipt.
3. What if I have already issued a claim without a memorandum? Unfortunately, the action is inadmissible. You must restart the procedure: first notify a memorandum, wait one month, then issue a new claim. You will lose time and money, but it is the only solution.
4. Does this one-month period apply to all applications for rent fixing? Yes, for any application to fix the rent of a renewed commercial lease, this period is mandatory.

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