Commercial lease: a pitch in a supermarket is not an autonomous premises

Imagine yourself in Grande-Synthe, setting up a flower stall in a supermarket. You sign a contract, you pay rent. But one day, the manager says: 'Sorry, your stall must be moved to the entrance, near the trolleys.' And if you refuse, you are evicted. Do you have a real commercial lease, with all the rights that go with it? The question is crucial for hundreds of small traders in shopping centres.

This decision of the Court of Cassation from 1976 clearly answers: no. The pitch a trader occupies in a supermarket is not a commercial premises within the meaning of the 1953 decree, if the landlord may at any time modify or reduce it. Why? Because the commercial lease status protects a stable enjoyment of the premises, not a mere right of precarious occupation.

So, what to do if you are in this situation in Saint-Pol-sur-Mer or elsewhere? This article explains the judges' reasoning and gives you the keys to secure your business. For a poorly defined pitch means a risk of losing your business goodwill overnight.

The facts: a story like many that happen every day

In the early 1970s, the Société Centre Rennais d'Horticulture operated a flower stall inside a supermarket in Rennes. It occupied a pitch located outside the checkouts, but without clearly defined boundaries. The contract provided that the landlord (the supermarket) could modify the pitch at any time.

A dispute arose: the supermarket wanted to reduce the area allocated to the florist. The latter took legal action, claiming to benefit from a commercial lease protected by the decree of 30 September 1953. He sought to remain in the premises and claimed damages. The Court of Appeal of Rennes ruled against him in 1974. The florist appealed to the Court of Cassation.

Before the Supreme Court, the trader argued that he had a lease, even if the pitch was not a partitioned premises. He paid rent and had been carrying out his activity for several years. But the Court of Cassation dismissed his appeal on 24 February 1976. It held that the pitch, which the landlord could freely modify, did not constitute a 'commercial premises' within the meaning of the decree. Without a determined premises, no protective status.

The reasoning of the court — dissected

The Court of Cassation relied on Article 1 of Decree No 53-960 of 30 September 1953 (now Articles L.145-1 et seq. of the Commercial Code). This text grants the commercial tenant a right to renewal of the lease, an eviction indemnity if evicted, and stability in the premises. But to benefit from it, the lease must relate to a determined premises.

However, in this case, the alleged landlord could at any time fix and restrict the florist's pitch. This meant that the trader did not have exclusive and stable enjoyment of a specific space. He was in a way a 'precarious occupier', even if he paid rent. The Court specifies: 'the pitch a trader is authorised to occupy in a supermarket cannot constitute the commercial premises provided for in Article 1 of the decree of 30 September 1953, since the alleged landlord has full latitude, at any time, to fix and restrict it.'

The judges did not stop at the qualification given by the parties (the contract was called a 'lease'). They looked at the reality of the situation: the landlord's unilateral power to modify emptied the contract of its leasing substance. The florist had only a right of precarious occupation, not a commercial lease. This is a constant principle: since 1976, the Court of Cassation has applied this rule without wavering.

What this changes for you — concretely

If you are a trader in a shopping centre or supermarket, this decision directly concerns you. Example: in Saint-Pol-sur-Mer, a florist installed in a shopping arcade sees his pitch reduced from 20 m² to 10 m². If he does not have a written lease precisely defining the boundaries, he cannot oppose this modification. Worse: if asked to leave, he will have no right to an eviction indemnity. His business goodwill loses all value.

For landlords (supermarket owners), this is a tool of flexibility. You can reorganise the space without being blocked by a protected tenant. But beware: if you give a trader an enclosed premises with walls, doors and exclusive enjoyment, then the status applies. The line is fine.

For purchasers of business goodwill located in large stores, you must imperatively check the nature of the contract. A simple 'occupation contract' or 'pitch agreement' does not give you the rights of a commercial tenant. You could lose your investment if the landlord decides to evict you without compensation.

In figures: an eviction indemnity can represent 2 to 5 years of rent. Without status, you get nothing. The difference amounts to tens of thousands of euros.

Four tips to avoid this type of dispute

• Have the pitch precisely described in the contract: area, boundaries, attached plan. Avoid vague terms like 'pitch near the checkouts'. The more precise, the closer you are to a determined premises.
• Negotiate a limited modification clause: if the landlord can modify the pitch, impose conditions (notice, legitimate reason, equivalent area). Otherwise, you remain precarious.
• Demand a classic commercial lease if possible: if you have an enclosed premises with walls and door, ask for a lease subject to the status. Do not settle for a simple occupation agreement.
• Consult a lawyer before signing: in Grande-Synthe, a trader signed a 'pitch rental contract' without suspecting he had no rights. A consultation of €45 would have saved him a loss of €50,000.

Further study: related case law and developments

This 1976 decision is constantly reaffirmed. For example, in a ruling of 12 May 2004 (No 02-14.133), the Court of Cassation held that a pitch in a market does not constitute a commercial premises if the manager can modify the pitch. Similarly, for pitches in railway station or airport halls, the solution is identical.

The trend is therefore clear: the commercial lease status requires a delimited and stable premises. The judges look at the reality of the landlord's power. If the landlord can unilaterally change the pitch, there is no commercial lease. Conversely, if the contract provides for a fixed area and the trader has exclusive enjoyment, the status applies, even without walls (example: an assigned parking space).

For the future, the multiplication of ephemeral concepts (pop-up stores) and shared spaces could cause the case law to evolve. But for now, the 1976 rule remains the reference.

In practice: what to do

FAQ:

• Can I benefit from the commercial lease status if I occupy an undelimited pitch in a supermarket? No, if the landlord can modify the pitch at any time. You are a precarious occupier.
• What if my contract does not specify the boundaries of my pitch? Ask for an addendum with a plan. Negotiate a stability clause. Failing that, assume you have no right to renewal.
• What are the risks if I am evicted without compensation? You lose your business goodwill and your investments. The loss can amount to several years of turnover.
• Can a 'pitch rental' contract be reclassified as a commercial lease? Yes, if in reality you have exclusive enjoyment of a determined space. But it is a question of fact, to be proven before a judge.

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