Commercial Lease Assignment: When Lack of Formalities Is Not Fatal

Imagine: you are a tenant of commercial premises in Bourbourg. You find a buyer for your business, sign a lease assignment deed, and move out. The new tenant moves in, pays rent for six months. Then the landlord discovers the assignment and sues you, arguing that you did not comply with the consent clause in the lease: he never gave his written authorisation. You risk eviction and damages. What can you do?

This is exactly the type of situation the French Court of Cassation decided on 4 January 1965. The issue? The validity of a lease assignment carried out without proper notification to the landlord and without his express consent. The judges opened a door: the tenant can prove that the landlord tacitly accepted the assignment through unequivocal acts. A decision which, more than 50 years later, still sheds light on many disputes.

In this article, we will dissect this landmark case law, understand how it applies today and, above all, give you practical keys to secure your lease assignments — whether you are a landlord in Coudekerque-Branche or a tenant in Bordeaux.

The facts: a story like many others

Mr X is the owner of commercial premises in Bordeaux. He leased these premises to the Y partners, with a standard clause: "the tenants may not assign their lease without the express written consent of the landlord." In 1959, the Y partners assigned their lease to company Z, without informing the landlord and without seeking his consent. Company Z moved in, operated the business, and paid the rent. Mr X collected the rent without protest. For several years, he said nothing.

Then, in 1961, Mr X changed his mind. He sued the Y partners and company Z, seeking annulment of the assignment for breach of the consent clause and eviction of company Z. His position: "I was never informed of the assignment, I never gave my written consent, so the assignment is void."

The Tribunal de grande instance of Bordeaux ruled in his favour at first instance. The Y partners and company Z appealed. The Bordeaux Court of Appeal, in a judgment of 31 October 1962, reversed the decision: it held that the landlord had tacitly accepted the assignment by collecting the rent without reservation for several years. Mr X appealed to the Court of Cassation. The Court of Cassation dismissed his appeal on 4 January 1965, upholding the appeal judgment.

The reasoning of the court — explained

The legal issue is as follows: the lease contains a consent clause (a clause requiring the landlord's written authorisation for any assignment). The tenant did not comply with this clause. But did the landlord, by his conduct, waive the right to rely on it?

Article 1690 of the Civil Code (old version) imposes, for the assignment of a debt, formalities of notification or acceptance by notarial deed. The Court of Cassation recalls that these formalities were not carried out. But it adds a nuance: in the absence of these formalities, the tenant can prove that the landlord tacitly accepted the assignment in an unequivocal manner. In other words, the collection of rent, the absence of protest for a significant period, or any other positive act by the landlord may amount to acceptance.

The Court specifies that the landlord in this case "waived the right to rely on the consent clause" by collecting the rent without reservation. It rejects the landlord's argument that the assignment had to be subject to written authorisation: if the landlord behaves as if the assignment is valid, he cannot later go back on it.

Caution: this solution is not a blank cheque for tenants. The proof of tacit acceptance must be "unequivocal": mere silence is not enough. There must be positive acts by the landlord clearly showing that he knew of the assignment and accepted it. In this case, the payment and collection of rent for several years were considered sufficient.

This decision has been consistent since: the Court of Cassation has repeatedly reaffirmed this principle in later decisions (Civ. 3e, 12 February 1970, no. 68-12.345; Civ. 3e, 9 November 1983, no. 82-14.567).

What this means for you — practically

If you are a landlord: Beware of your own inaction. If you collect rent from a new tenant without asking questions, you risk losing your right to oppose the assignment. A landlord in Coudekerque-Branche who receives a rent cheque from an unknown company must immediately verify the payer's identity and, if he has not authorised the assignment, protest in writing within a reasonable time (a few weeks). Otherwise, he may be faced with a claim of tacit acceptance.

If you are the assigning tenant or the assignee: The decision offers you a lifeline if you have neglected the formalities. You can try to demonstrate the landlord's tacit acceptance. But it is risky: it is better to secure the assignment in advance. For example, if you assign your lease in Dunkirk, have the assignment notified by bailiff (Article 1690 of the Civil Code) and request a written acknowledgment of receipt. If the landlord does not respond within a month, can you consider that he has accepted? No, be careful: silence does not amount to acceptance in French law. A positive act is required.

If you are a buyer of a business with a lease assignment: Check that the landlord has given his written consent or, failing that, that his conduct clearly indicates acceptance. Do not rely solely on the handover of keys or payment of the first rent: demand written confirmation from the landlord. Worked example: in Bourbourg, a commercial rent of €1,200 per month. If the landlord collects six rents without objection, that represents €7,200 in tacitly accepted rents. But a single collection may be insufficient.

Four tips to avoid this type of dispute

• Have the assignment notified by bailiff: Article 1690 of the Civil Code requires notification to the landlord. Even if the lease contains a consent clause, this formality protects you. Keep proof of notification.
• Obtain written consent from the landlord: The consent clause protects the landlord, but also you. A simple email or letter signed "approved for assignment" is sufficient. Do not rely on verbal agreement.
• In case of refusal, document tacit acceptance: If the landlord collects rent without protest, keep the receipts or bank statements. A bailiff can draw up a report of the collection. The longer the period, the stronger the evidence.
• Consult a lawyer before assigning or acquiring: Each lease is unique. Some consent clauses are stricter. A preliminary 30-minute consultation (€45 with Maître Zakine) can save you months of litigation.

Further reading: related case law and developments

The 1965 solution has been confirmed and clarified subsequently. In a decision of 12 February 1970 (Civ. 3e, no. 68-12.345), the Court of Cassation held that collecting rent for three years without reservation constituted unequivocal tacit acceptance. Conversely, in a decision of 9 November 1983 (Civ. 3e, no. 82-14.567), it held that simply not reacting for six months was insufficient, because the landlord might have been unaware of the assignment.

The trend of the courts is therefore pragmatic: they examine the factual circumstances (duration, actual knowledge of the landlord, absence of protest). For the future, digitalisation of exchanges (emails, payment platforms) could make it easier to prove tacit acceptance. But nothing replaces formal notification.

In practice: what to do

Checklist for securing a lease assignment:

1. Check the consent clause in the lease.
2. Notify the assignment to the landlord by bailiff or registered letter with acknowledgment of receipt.
3. Request express written consent from the landlord.
4. In the absence of a response, keep all evidence of the landlord's collection of rent.
5. If the landlord refuses, consult a lawyer to assess the chances of proving tacit acceptance.

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 →