Force Majeure in Property: When Can a Tenant Stop Paying Rent?

Imagine: you are the owner of a commercial property in Panazol, near Limoges. Your tenant, a florist, informs you that they can no longer operate their shop due to a giant water leak caused by a burst municipal pipe. They stop paying rent, citing force majeure. But until when? Can they terminate their lease without your consent?

This question is asked by thousands of landlords and tenants every year. The answer varies depending on the duration of the impediment. The French Supreme Court, in a judgment of 22 February 2006, ruled: force majeure only exempts the debtor from their obligations for the time it prevents them from performing their contract. In other words, as soon as the obstacle disappears, the obligations resume.

This decision, often overlooked, has concrete consequences on your rights and duties. Let us see together what it changes for you, whether you are a landlord or a tenant.

The facts: a story like many others

Mrs Renée, tenant of a commercial property used as a shop, had signed a lease with Mrs Y., the owner. The contract provided that Mrs Y. had to maintain the roof in good condition. However, water infiltrations made the premises unusable. Mrs Renée stopped paying her rent and, by a notice invoking the forfeiture clause, demanded the owner to remedy the situation.

The owner, Mrs Y., considered that the tenant had no right to unilaterally stop payments. She served a notice with refusal to renew the lease on 28 February 2000. The tenant brought the matter to court to contest this notice and claim damages.

Before the Paris Court of Appeal, Mrs Renée argued that her failure to pay was due to force majeure: the infiltrations made operation impossible. She concluded that she was fully exempted, even after the completion of repair works.

But the Court of Appeal did not fully follow her. It recognised that force majeure existed for a period, but limited its effect: once the obstacle disappeared, the tenant had to pay again. Mrs Renée appealed to the Supreme Court.

The reasoning of the court — analysed

The French Supreme Court, in its judgment of 22 February 2006, confirmed the reasoning of the Court of Appeal. It recalled the fundamental principle: force majeure exempts the debtor from their obligations, but only for the time it prevents them from giving or doing what they have undertaken.

In civil law, force majeure is an event that is unforeseeable, irresistible and external to the debtor (Article 1218 of the Civil Code, which has since replaced the former Article 1148). When it occurs, the debtor is not liable for the damage caused by their non-performance. But this immunity is only temporary: as soon as the event ceases, the obligation revives.

The judges of the Supreme Court apply a strict interpretation here. They refuse to consider that force majeure can justify an automatic termination of the lease or a definitive exemption. The tenant cannot permanently free themselves from their obligation to pay on the pretext that an event temporarily prevented them from operating.

The judgment is clear: force majeure does not erase the debt, it suspends it. This is a crucial distinction. If you are a tenant and your business is paralysed by a flood, you will not pay during the flood, but you will have to catch up on rent as soon as the water is removed.

This solution is not a revolution: it confirms established case law. It has been followed in many subsequent decisions, particularly for commercial leases affected by public works or exceptional weather events.

What this means for you — practically

For the landlord: you can be reassured. If your tenant stops paying by invoking force majeure (flood, fire, riot), you do not have to accept a unilateral termination. You only have to tolerate a delay in payment during the impediment. Once the obstacle is lifted, you can demand payment of the unpaid rent. In Brive-la-Gaillarde, an owner of a commercial property rented at €2,500 per month thus obtained payment of €7,500 in unpaid rent following a three-month flood, after the tenant thought they could terminate.

For the tenant: you cannot definitively free yourself from your obligation to pay. You are entitled to a temporary suspension, but not a total exemption. If you want to terminate your lease due to force majeure, you must apply for judicial termination (in court), not stop paying unilaterally. In that case, the judge will assess whether the event makes performance permanently impossible.

For the buyer of a property: if you buy a property whose tenant has stopped paying by invoking force majeure, check whether the impediment has ended. The seller should have recovered the rent. Otherwise, you can demand that the seller assign the debt to you.

For the co-owner: damage affecting common parts (e.g., gas explosion) may suspend payment of service charges if the property becomes uninhabitable. But as soon as repairs are completed, charges become payable again.

Four tips to avoid this type of dispute

• Draft a precise force majeure clause in your lease. Define the events considered as force majeure (flood, fire, strike, epidemic) and specify the effects: suspension of rent, resumption period, possibility of termination after X months of impediment. Example: 'In the event of force majeure, rent payment is suspended for the duration of the impediment, not exceeding six months. After this period, either party may request termination of the lease.'
• Document the event and its duration. In case of damage, have a bailiff (cost: around €150) record the condition of the premises and the impossibility of operation. Keep insurance reports, photos and correspondence. This will allow you to prove the start and end of force majeure.
• Inform the other party in writing from the start of the event. Send a registered letter with acknowledgement of receipt describing the situation and indicating that you are suspending your obligations (rent payment) or that you accept this suspension. This avoids misunderstandings about the start date.
• Do not act unilaterally without a lawyer. If you are a tenant and want to terminate, do not stop paying thinking that force majeure exempts you permanently. Consult a lawyer specialising in property law to find out whether you can apply for judicial termination or whether you need to negotiate an addendum.

Further reading: related case law and developments

This decision is part of a line of judgments that limit the scope of force majeure. For example, in a judgment of 16 September 2010 (No. 09-13.111), the French Supreme Court held that a fire in a building does not constitute force majeure exempting the tenant from their insurance obligation, because insurance covers this risk. Similarly, the judgment of 13 March 2013 (No. 12-14.262) specified that force majeure cannot be invoked if the event was foreseeable at the time of contracting.

The trend is therefore towards a restrictive interpretation: courts require that the event be truly unforeseeable, irresistible and external. The Covid-19 health crisis gave rise to numerous disputes, but case law confirmed that the epidemic could be a case of force majeure, but only for the strict lockdown period, and without definitive exemption.

In the future, with climate change, floods and heatwaves are likely to increase. Leases will need to include specific clauses for these recurring events, which may no longer be considered unforeseeable.

Key takeaways

FAQ:

• Can I stop paying rent if my shop is flooded for three months? Yes, you can suspend payments during those three months, but you will have to pay rent as soon as you reopen. You cannot unilaterally terminate the lease.
• What if the landlord refuses to acknowledge force majeure? Apply to the judicial court (formerly the High Court) by way of summary proceedings to have force majeure established and obtain suspension of rent. A lawyer will help you prove the three criteria (unforeseeability, irresistibility, externality).
• Is arson a case of force majeure? Yes, if committed by an unknown third party and not attributable to the landlord. But caution: if the landlord failed to maintain electrical installations, they may be liable.
• Can I claim damages if force majeure lasted too long? No, force majeure exempts from all liability. But if the event is attributable to the landlord's fault (e.g., lack of maintenance), you can claim damages on the basis of contractual liability.
• What is the time limit to act after the end of force majeure? You have 5 years to claim unpaid rent (general limitation period). But act quickly: as soon as the event ends, send a formal notice by registered letter to the tenant demanding payment.

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 →