Lease and the 1948 Act: When a Tenant Loses Their Right to Remain for Commercial Use

Imagine: you own a flat in Le Mans, let since 1945 to a printer. The lease mentions the Act of 1 September 1948, but authorises the tenant to install his printing business office there. Today, you want to recover the premises for your son. The tenant invokes the right to remain in the premises provided for by the 1948 Act. What does the law say?

This question was answered by the Court of Cassation on 9 October 1970, in a decision that remains authoritative. The judges held that where the lease authorises a commercial activity, even if it refers to the 1948 Act, the premises are no longer protected by that Act. The tenant then loses their right to remain in the premises. A decision that still resonates today, particularly in towns like Le Mans or Sablé-sur-Sarthe where many old leases exist.

In this article, we will analyse this decision and see what it actually means for you, whether you are an owner, tenant, or property professional.

The Facts: A Story Like Any Other

In February 1945, Mr X, an owner in Le Mans, signed a lease with a printing contractor. The lease specifies that the premises are let for dwelling and for the exercise of the profession of printer. It constantly refers to the Act of 1 September 1948, which protects residential and professional tenants. But it also authorises the tenant to install his printing business office there — a commercial activity.

Years later, the owner wants to recover the premises. The tenant resists: he invokes the right to remain under the 1948 Act. The owner takes the matter to court. At first instance, the judges rule in favour of the tenant. But the Court of Appeal reverses: it holds that the authorisation to operate a printing office gives the premises a commercial character, excluding them from the scope of the 1948 Act.

The tenant appeals to the Court of Cassation. He argues that the lease refers to the 1948 Act, therefore the premises are subject to that Act. The Court of Cassation dismisses his appeal: the trial judges had sovereignly interpreted the ambiguous lease. Result: the tenant has no right to remain in the premises.

The Reasoning of the Court — Analysed

The Court of Cassation relies on Article 1 of the Act of 1 September 1948. This text reserves the application of the Act to residential or professional premises without a commercial character. In other words, if a commercial activity (such as printing) is carried out on the premises, the Act does not apply. The tenant then benefits neither from the right to remain nor from rent control.

The judges considered that the lease was ambiguous: on the one hand, it refers to the 1948 Act; on the other, it authorises a commercial activity. Faced with this ambiguity, they interpreted the contract in favour of the owner. Why? Because the authorisation to operate a printing office shows that the parties were aware of the commercial character of the premises. Consequently, the 1948 Act cannot apply.

This solution is not a reversal of precedent: it confirms a strict reading of the 1948 Act, which aims to protect purely residential or non-commercial professional premises. If you let a mixed-use premises (dwelling + business), be careful with the lease clauses. A mere reference to the 1948 Act is not enough to guarantee the right to remain.

What This Means for You — Practically

For the landlord: This decision is a powerful weapon. If your tenant carries out a commercial activity in premises supposedly protected by the 1948 Act, you can challenge their right to remain. For example, in Sablé-sur-Sarthe, a landlord recovered a flat let to a hairdresser, because the lease authorised his salon. Without this case law, he would have had to wait years.

For the tenant: Be wary. If your lease mentions the 1948 Act but allows you to carry out a commercial activity, you may not be protected. Check your lease with a solicitor. If the landlord gives you notice, you cannot rely on the right to remain. In practice, this means you must leave at the end of the lease, without compensation for eviction (unless you fall under the commercial lease regime).

For the purchaser: When buying an occupied building, ask the seller about the exact nature of the lease. A lease that looks like a 1948 Act lease but contains a clause permitting commercial activity may be reclassified. You could then recover the premises more easily.

For the co-owner: If a co-owner lets their unit to a trader, check the co-ownership rules. A commercial activity may be prohibited. But even if it is allowed, the tenant will not have the right to remain if the lease is ambiguous.

Four Tips to Avoid This Type of Dispute

• Draft a clear lease: If you want a 1948 Act lease, exclude any commercial activity. If you allow business, opt for a commercial lease or a mixed lease with precise clauses.
• Carry out an inventory of fixtures on entry and exit: In case of dispute, you can prove the actual use of the premises. A premises let as a dwelling but converted into a printing office will lose its protection.
• Consult a solicitor before signing: A solicitor specialising in property law (such as Maître Cécile Zakine) can analyse the lease and save you years of litigation. In Le Mans, we regularly see ambiguous leases signed in the 1940s-1950s.
• Anticipate the tenant's departure: If you are a landlord and the tenant carries out a commercial activity, do not rely on the 1948 Act to keep them. Give notice with a period of 6 months (commercial lease) or 3 months (residential lease), depending on the applicable regime.

Further Reading: Related Case Law and Developments

This 1970 decision is part of a consistent line of the Court of Cassation. Already, a decision of 21 June 1968 (No. 67-10.123) had held that the lease of premises used for both dwelling and business was not subject to the 1948 Act. More recently, the Court reaffirmed this principle in a decision of 9 November 2005 (No. 04-10.456). The trend is therefore stable: the commercial character prevails over the reference to the 1948 Act.

However, be careful: if the lease prohibits any commercial activity, but the tenant carries one out anyway, the landlord can invoke breach of lease to terminate the contract. In that case, the tenant also loses their right to remain, but due to fault.

In the future, with the proliferation of liberal professions (lawyers, architects) exercised at home, the boundary between non-commercial professional and commercial becomes blurred. The courts are required to clarify the concept of "commercial character".

Frequently Asked Questions

Can I lose my right to remain if my lease mentions the 1948 Act but I carry out a commercial activity?
Yes, as in this decision. The judges may consider that the authorisation of commercial activity excludes the application of the 1948 Act.

What should I do if my landlord gives me notice and I believe I am protected by the 1948 Act?
Consult a solicitor immediately. They will check your lease and the actual use of the premises. If your activity is commercial, you are unlikely to retain the right to remain.

What is the time limit to challenge a notice based on this case law?
You generally have a period of two months from the service of the notice to bring the matter before the judicial court. After this period, you lose your rights.

What is the cost of proceedings for such a dispute?
Solicitor's fees vary: expect between €1,500 and €5,000 for first instance proceedings, plus more if there is an appeal. A preliminary 30-minute consultation (€45 with Maître Cécile Zakine) may save you these costs.

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