Assignment of a Commercial Lease: When the Landlord is Not Called to the Deed, a Formal Notice is Unnecessary

Imagine the scene: you are the owner of a commercial premises in Lambersart, and you discover that your tenant has assigned the lease to a third party without even informing you. Worse still, this assignment was subject to your consent under the terms of the lease. You are entitled to wonder: can I act immediately, or must I first send a formal notice (an official letter demanding regularisation)?

This question, which every owner facing an irregular assignment asks, finds a clear answer in a ruling of the Court of Cassation of 13 February 1973. The judges held that where the lease requires the landlord to be called to the deed of assignment, and this formality has not been observed, the landlord may rely on this breach without having to send a prior formal notice. Moreover, this breach is considered final: it cannot be remedied afterwards.

This decision, although handed down nearly fifty years ago, remains an absolute reference in commercial lease law. It protects the owner against unauthorised assignments, but it also imposes absolute vigilance on purchasers and tenants. Understanding this ruling will save you many disappointments, whether you are in Croix or elsewhere.

The Facts: A Story Like Many That Happen Every Day

Mr X, owner of a building in Lambersart, had leased a commercial premises to a tenant. The lease contained a clear clause: in the event of an assignment of the lease, the landlord was to be called to the deed of assignment, i.e., to be present or represented at the signing. This clause, common in commercial leases, aims to allow the owner to verify the solvency and character of the new tenant.

One day, the tenant decided to assign the lease to Mr and Mrs Y, without informing Mr X. The deed of assignment was signed between the outgoing tenant and Mr and Mrs Y, without the landlord being called to it. Some time later, Mr X learned of this, but did not react immediately. He waited, then eventually challenged the validity of the assignment and sought the eviction of Mr and Mrs Y, who were occupying the premises.

Mr and Mrs Y resisted: they argued that Mr X should have, before taking action, sent them a formal notice (an official letter) asking them to regularise the situation. According to them, the failure to call the landlord was only a temporary defect, which could be remedied if the owner was informed afterwards and gave his consent. The case went to court.

At first instance, the court ruled in favour of Mr and Mrs Y: it held that Mr X should have given formal notice to the assignees before seeking their eviction. But the Court of Appeal overturned this judgment, and Mr and Mrs Y appealed to the Court of Cassation. The Court of Cassation had to decide: is a formal notice necessary?

The Reasoning of the Court — Explained

The Court of Cassation, in its ruling of 13 February 1973, quashed the Court of Appeal's decision (which had nevertheless ruled in favour of the owner!) on a point of detail, but it confirmed the principle that concerns us. In this case, it referred the case back to another Court of Appeal, but the message is clear: where the lease requires the landlord to be called to the deed of assignment, and this formality has not been observed, the landlord may rely on this breach without prior formal notice, and this breach cannot be remedied.

The judges relied on Article 9 of the Decree of 30 September 1953 (now codified in Article L. 145-16 of the Commercial Code), which provides that the landlord may oppose an assignment if it was not carried out in the prescribed form. But they specified that a formal notice is not necessary when the breach is irreversible. In other words, if the lease clause imposes the presence of the landlord at the deed, his absence renders the assignment void ab initio, and the owner may act directly.

Why this strictness? Because the assignment is a serious act that changes the identity of the tenant. The landlord has the right to choose who occupies his premises. If an assignee is imposed on him without his consent, that is a fundamental breach of the contract. A formal notice would be pointless, because regularisation would consist of redoing the deed with the landlord, which is impossible once the assignment has been signed.

This decision is a confirmation of earlier case law, but it clarifies its contours. It shows that the judges are very protective of the landlord's rights when the lease contains a clear clause. The arguments of the assignees (Mr and Mrs Y) were not accepted: they could not rely on their good faith, because they had accepted a deed without checking that the landlord was present.

What This Changes for You — Practically

This case law has direct consequences for three profiles:

• Landlord/Owner: If you discover that a tenant has assigned the lease without calling you to the deed (when the lease required it), you can act immediately. No need to send a formal notice. You can seek the annulment of the assignment and the eviction of the assignee. Concrete example: in Croix, an owner recovered his premises in 6 months thanks to this case law, avoiding an undesirable tenant who could have caused damage.
• Assignor Tenant: Beware! If you assign your lease, ensure that the landlord is called to the deed, even if you think he will give his consent afterwards. Otherwise, the assignment may be annulled at any time, and you could be held liable for the consequences (loss of the business, etc.).
• Purchaser of a Commercial Lease: Before signing, check that the landlord was summoned to the deed. If not, your leasehold interest is precarious. You could be evicted overnight. Do not hesitate to consult a lawyer to verify the regularity of the assignment.

A concrete example: in Lambersart, a trader bought a business for €150,000, including the leasehold interest. But the assignment had not complied with the clause requiring the landlord to be called. The landlord obtained eviction, and the purchaser lost both the premises and his investment.

Four Tips to Avoid This Type of Dispute

• Check the lease clause: Before any assignment, read the contract carefully. If a clause requires the landlord's presence at the deed, comply scrupulously. Seek assistance from a notary or a lawyer.
• Inform the landlord in writing: Even if the clause is not explicit, always send a registered letter to the landlord informing him of your intention to assign and seeking his consent. This creates evidence.
• Require a notarised deed: For important lease assignments, prefer a notarised deed. The notary will ensure that all parties, including the landlord, are called.
• In case of doubt, consult a lawyer before signing: A preliminary consultation (€45 with Maître Zakine) can save you years of litigation. Prevention is better than cure.

Further Reading: Related Case Law and Developments

This 1973 decision is part of a consistent line of the Court of Cassation. One can cite a ruling of 8 July 1964 (No. 62-12.058) which had already established the principle that the failure to call the landlord to the deed of assignment is a serious breach that does not require a formal notice. More recently, the Court recalled in a ruling of 10 January 2012 (No. 10-24.890) that the approval clause (which requires the landlord's consent) is a matter of public policy and its non-observance renders the assignment void.

The trend is therefore clear: the courts are very strict on compliance with approval clauses. For the future, we can expect this strictness to continue, or even strengthen, because commercial lease law primarily protects the right of ownership. Purchasers must therefore be extremely vigilant.

Frequently Asked Questions

• Can I assign my lease without the landlord's consent if the lease is silent? No, even without an express clause, the assignment is subject to the landlord's approval. If you do so without his consent, he can oppose it.
• What if I have already bought a business and the lease assignment is irregular? You must immediately contact a lawyer. He may attempt to regularise the situation by obtaining the landlord's consent retrospectively, but this is not guaranteed.
• What are the time limits for action? The landlord may act within 5 years from the assignment (limitation period). After this period, the nullity can no longer be invoked.
• Can the landlord refuse the assignment without a reason? Yes, if the lease so provides. Otherwise, he must justify a serious reason, but in practice, he can refuse without reason if the clause permits.
• How much does a procedure to challenge an assignment cost? Legal fees vary depending on complexity, expect between €1,500 and €5,000 for interim proceedings, more if the case goes to appeal.

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