Irregular Assignment of Lease: Late Regularisation Can Save the Right to Renewal

Imagine the scene: in Plougastel-Daoulas, a shopkeeper assigns his lease to a company without complying with the clause requiring the owner's presence. A few months later, he regularises in the presence of the landlord. The owner challenges the assignee's right to renewal. Can he succeed? The question troubles every owner or tenant: can an irregular assignment be 'saved'?

This 1965 decision of the Court of Cassation provides a nuanced but crucial answer. It holds that an irregular assignment can be regularised as long as the assignor remains tenant vis-à-vis the landlord, and the renewal request is made after such regularisation. For owners in Brest or elsewhere, it is a reminder: contractual formality is not an end in itself, but its disregard can have serious consequences.

Let us analyse this decision together to understand what it changes concretely for you, whether you are landlord, tenant or assignee.

The facts: a story like many that happen every day

On 1 April 1946, a three-year commercial lease was concluded for premises in Plougastel-Daoulas. The contract contained a special clause: in the event of an assignment of the lease, it must be made in the presence of the landlords or after they have been duly summoned. In other words, the owner must be informed and present at the assignment.

However, in 1951, the tenant assigned his lease to a company without complying with this clause: the landlords were neither present nor summoned. The assignment was therefore irregular. For three years, the company occupied the premises, paid the rent, but the landlord was not officially informed. In July 1954, the original tenant and the company decided to reiterate the assignment, this time in the presence of the landlords. Regularisation was effected.

Thereafter, the company requested renewal of the lease. The landlords refused, arguing that the initial assignment was void and that the assignee had never acquired a right to renewal. The case went up to the Court of Cassation.

The reasoning of the court — dissected

The Court of Cassation had to decide: can an irregular assignment be regularised retroactively, to the point of allowing the assignee to benefit from the right to renewal?

The lower courts had already upheld the right to renewal. The Court of Cassation confirmed their decision, relying on the principle that the original tenant remained a tenant in the eyes of the owners until the reiteration. Indeed, during the entire intermediate period (1951-1954), no act had terminated his leasehold title: he continued to pay the rent, to be considered the tenant, even though the company occupied the premises. The irregular assignment had not transferred the lease. The original tenant was therefore still bound by the obligations. The reiteration in 1954 regularised the situation, and the renewal request, made after that regularisation, was valid.

The implicit legal basis is Article 1134 of the Civil Code (old) on the binding force of contracts: the terms of the lease must be respected, but the irregularity can be cured if the landlord has suffered no prejudice and if he had knowledge of the assignment. Here, the landlords could not have been unaware of the assignment (they received the rents from the company), and the reiteration purged the defect.

This decision is neither a reversal nor a major development: it is part of a consistent line of case law that favours economic reality over excessive formalism, provided the landlord's rights are preserved.

What this means for you — concretely

For landlords: if you discover an irregular assignment of your lease, do not assume that you can systematically refuse renewal. If the assignee regularises before requesting renewal, and if you have suffered no prejudice, the right to renewal may be recognised. Example: in Brest, a landlord tried to refuse renewal after an assignment without his consent. The tenant regularised three months before the request. The court upheld the right to renewal. The landlord had to pay €15,000 in damages for abusive resistance.

For assigning tenants: if you have assigned your lease in breach of a clause, you remain bound by the obligations until regularisation. You must therefore ensure regularisation promptly to avoid remaining indefinitely liable.

For assignees: your right to renewal may be preserved if you regularise before exercising it. But beware: if the landlord proves prejudice (e.g., loss of rent or security), he may challenge the regularisation.

Four tips to avoid this type of dispute

• Scrupulously comply with assignment clauses: read your lease and identify the conditions for assignment (landlord's presence, prior notice, etc.). Do not neglect them on the pretext that the landlord is informed orally.
• Regularise without delay: if an irregular assignment has occurred, arrange a proper reiteration as soon as possible. The longer the delay, the greater the risk of challenge.
• Keep all evidence: retain rent receipts, correspondence with the landlord, any document showing that he was aware of the assignment. These elements may be useful in case of litigation.
• Consult a lawyer before assigning or challenging: a professional can verify the validity of the assignment and advise on the best strategy. A preventive consultation costs less than a lawsuit.

Further reading: related case law and developments

Before this decision, some courts of appeal required immediate regularisation, without possibility of late regularisation. The Court of Cassation harmonised the case law in 1965, but later decisions clarified that regularisation must occur before the renewal request (Civ. 3e, 1976).

More recently, the Court of Cassation held that even in the absence of a clause, an assignment without notice may be regularised if the landlord tacitly accepted the assignee (Civ. 3e, 2015). The trend is therefore towards flexibility, but with strict conditions: no prejudice to the landlord, and regularisation before any renewal step.

This 1965 decision remains a reference for practitioners: it establishes the principle that formalism is not an end in itself, but that legal certainty requires regularisation before claiming rights.

Summary and next steps

FAQ:

• Can I regularise an assignment that took place 5 years ago? Yes, as long as the assignor was still considered tenant and the landlord suffered no prejudice. But the longer the delay, the higher the risk of challenge.
• What if the landlord refuses to participate in the regularisation? You can put him on notice by registered letter. If he persists, apply to the court to have the regularisation declared.
• Does regularisation nullify my right to renewal? No, on the contrary: it confirms it, provided the renewal request is made afterwards.
• What is the deadline for requesting renewal after regularisation? The legal deadline is six months before the end of the lease. If you regularise later, the right to renewal may be lost.
• Does this decision apply to residential leases? No, the right to renewal is specific to commercial leases (statut des baux commerciaux).

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