Commercial Lease and Parking: A Parking Area Is Not an Ancillary Premises

Imagine: you own a commercial building in Isle, and you lease a unit to a bookshop. The contract also provides for two parking spaces in the courtyard. A few years later, you wish to recover these spaces to rent them separately. The tenant opposes this, arguing that the spaces are an integral part of the commercial lease and benefit from the same protection. Who is right?

This seemingly ordinary question gave rise to an important judgment of the Court of Cassation on 12 July 1995. The judges had to determine whether a parking area rented separately could benefit from the commercial lease regime (the protective scheme for the tenant). The answer is no: a parking space is not an "ancillary premises" within the meaning of the 1953 Decree. A decision that changes the game for many landlords and tenants.

In this article, we dissect this decision and its practical consequences, whether you are a landlord in Saint-Junien or a tenant in Limoges. We will see what the law actually says, how to apply it, and above all how to avoid pitfalls.

The Facts: A Story That Happens Every Day

The company Éditions Jacobs was a tenant of commercial premises in Paris. In addition to the main premises, the landlord had also rented them two parking spaces in the same courtyard. These spaces were not mentioned in the main commercial lease but were the subject of a separate rental, either verbal or by a separate document.

A few years later, the owner (SIRP) gave notice to Éditions Jacobs for these two parking spaces, asking them to vacate them. The tenant contested this notice, considering that the spaces were ancillary to the commercial lease and therefore benefited from the same protection: right to renewal, payment of an eviction indemnity, etc.

The case was brought before the Commercial Court, then the Paris Court of Appeal, and finally the Court of Cassation. On 23 September 1993, the Court of Appeal ruled in favour of the landlord, holding that the parking areas were not subject to the commercial lease regime. Éditions Jacobs then appealed to the Court of Cassation.

On 12 July 1995, the Court of Cassation dismissed the appeal, confirming the appellate decision. It held that the parking areas were not ancillary premises or buildings within the meaning of Article 1-1° of the Decree of 30 September 1953. In other words, a parking space rented separately does not fall within the scope of the commercial lease regime. The landlord could therefore validly give notice without having to pay an eviction indemnity.

The Reasoning of the Court — Explained

To understand this decision, we must return to the basic text: the Decree of 30 September 1953 (now codified in Articles L. 145-1 et seq. of the French Commercial Code). This text protects traders and industrialists who rent premises for their business. It notably provides for a right to renewal of the lease and, in the event of refusal to renew, payment of an eviction indemnity (compensation for the loss suffered).

Article 1-1° of this Decree specifies that the regime applies to leases of "ancillary premises or buildings" necessary for the operation of the business. The question was therefore: can a parking area be considered as "premises" or an "ancillary building"?

The Court of Cassation answers no. For it, a parking area is a mere surface, not enclosed, which does not constitute premises. It cannot be classified as an "ancillary building" in the legal sense either, because it is not essential for the operation of the business (unlike, for example, an adjoining warehouse).

The judges therefore made an important distinction: the commercial lease regime protects the premises where the activity is carried out, not mere dependencies such as parking lots. This applies even if these parking lots are rented at the same time as the main premises, provided they are the subject of a separate rental (and not a single clause in the same lease).

Note that this decision is not a reversal: it is in line with consistent case law. As early as 1987, the Court of Cassation had ruled that a bare plot of land rented for parking was not subject to the regime. The 1995 decision confirms this line.

What This Means for You — Practically

For the Landlord: You can rent parking spaces to a trader without fearing that they become "untouchable" after a few years. If you wish to recover them, a simple notice without indemnity is sufficient (unless the contract provides otherwise). Concrete example: in Saint-Junien, Mr. Dupont, owner of a building, rents a unit to a baker and, by a separate contract, three parking spaces. Five years later, he wants to turn the parking into a garden. He can give notice for the spaces without paying a penny of eviction indemnity.

For the Tenant Trader: Caution: if you rent commercial premises and you benefit from parking spaces, check whether they are included in the main lease or not. If they are the subject of a separate contract, the landlord can take them away without compensation. To be protected, the spaces must be expressly mentioned in the commercial lease as part of the rented premises. If not, negotiate a rider or a single lease.

For the Purchaser of a Business: When acquiring, check with your notary whether the lease right includes the parking lots. If the spaces are rented separately, they are not included in the transfer of the business. You could find yourself without spaces after the sale.

For the Co-owner: If your co-ownership association rents parking spaces to a trader, know that these rentals are not subject to the commercial lease regime. The association can therefore give notice easily if necessary.

Four Tips to Avoid This Type of Dispute

• Draft a single lease including the parking lots: If you want the parking spaces to benefit from the protection of the commercial lease regime, mention them in the body of the main commercial lease, with their area and location. Avoid separate contracts.
• Specify the nature of the rental: In the contract, clearly indicate whether the spaces are rented as ancillary to the commercial premises or independently. This will avoid any ambiguity.
• In case of separate rental, provide for a termination clause: If you opt for a separate contract for the parking, add a clause allowing the landlord to terminate at any time with notice (e.g., 3 months). This secures both parties.
• Consult a lawyer when drafting: Before signing a lease including parking lots, have the contract checked by a professional. A preventive 30-minute consultation with Maître Zakine (€45) can save you years of litigation.

Further Reading: Related Case Law and Developments

The 1995 decision is part of a consistent line. As early as 1987, the Court of Cassation had ruled that a bare plot of land rented for parking was not subject to the commercial lease regime (Civ. 3e, 20 May 1987, No. 85-16.724). More recently, in 2010, it confirmed that a garage rented separately from commercial premises does not fall within the scope of the regime (Civ. 3e, 10 March 2010, No. 08-20.598).

The trend is therefore clear: the judges make a strict distinction between the professional premises (protected) and non-enclosed dependencies such as parking lots, courtyards, or gardens. However, caution: if the parking is essential to the activity (e.g., a parking lot for a car wash), it could be reclassified as an essential element of the business. But this is a rare exception.

For the future, the Pinel Law of 2014 did not change this rule. The case law therefore remains current.

Summary and Next Steps

FAQ:

• Q: Can I recover a parking space rented to a trader without paying compensation?
  A: Yes, if the space is the subject of a separate rental from the commercial lease. You can give notice without an eviction indemnity.
• Q: What if my commercial lease mentions the parking spaces in the same contract?
  A: In that case, the spaces are protected by the regime. The landlord cannot recover them without paying an eviction indemnity.
• Q: Is an underground parking lot considered premises?
  A: No, case law treats parking lots as parking areas, even if covered. Unless they are fitted out as closed and individual boxes, they remain excluded from the regime.
• Q: Can I rent a parking space to a trader without using a commercial lease?
  A: Yes, you can use a simple rental contract (civil lease) for a fixed term. However, beware of local regulations (PLU) and co-ownership rules.

Checklist: What to Do If You Are Concerned

1. Check your contracts: are the parking lots included in the commercial lease or separate?
2. If separate, anticipate a possible termination without compensation.
3. If included, ensure the description is precise (area, space number).
4. If in doubt, consult a specialised lawyer.

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