Commercial Lease: A Simple Letter Interrupts the Prescription Period for Rent Fixation

Imagine: you are the owner of a commercial premises in Douarnenez, let to a ready-to-wear chain. The lease expires, you request renewal, but you cannot agree on the new rent. You initiate proceedings before the commercial rent judge. You prepare your memorandum (the document setting out your arguments and requests for fixing the price) and send it by registered letter with acknowledgement of receipt (LRAR) to your tenant. But the postman is late, and the letter is only delivered two days after the expiry of the two-year period provided by law for taking action. Is your action lost?

This question, crucial for thousands of commercial leases, was resolved by the Court of Cassation in a judgment of 17 October 2012 (n° 11-21.646). The High Court held that what matters is the date of posting of the memorandum, not the date of receipt. In other words, the prescription period (the legal time limit for taking action) is interrupted as soon as you post the letter, provided that this is before the end of the period.

This solution, favourable to the creditor of the obligation (the person claiming payment or fixing of the price), provides welcome legal certainty. But attention: it does not dispense with the need to comply scrupulously with formalities. Full analysis of this decision and its implications for owners and tenants of commercial premises, particularly in the jurisdiction of Quimper, from Douarnenez to Pont-l'Abbé.

The facts: a story that happens every day

Let us return to the case decided by the Rennes Court of Appeal (June 2009). The company Encadrim was the tenant of a commercial premises belonging to the company Rue de Feltre. On 7 November 2005, the tenant requested renewal of its lease. As often happens, the parties failed to agree on the amount of the new rent. The tenant therefore applied to the commercial rent judge (the court competent to fix the price) and, in that context, had to notify (officially transmit) its memorandum to the landlord.

The time limit for taking action to fix the rent of the renewed lease is two years from the request for renewal. Here, the deadline expired on 7 November 2007. The tenant sent its memorandum by registered letter with acknowledgement of receipt on 24 November 2007. The letter was presented to Rue de Feltre on 26 November, but the item was returned to the sender due to non-claim. Finally, the memorandum was delivered by hand on 28 November 2008, more than a year after the expiry of the two-year period.

The landlord then argued that the action to fix the rent was time-barred (extinguished by the passage of time) because the memorandum had only been received after the two-year period. The tenant, on the other hand, argued that the date of posting (24 November 2007) was within the time limit. The court ruled in favour of the tenant, and the landlord appealed to the Court of Cassation. The issue was simple: at what point is the prescription period interrupted?

The reasoning of the court — dissected

The Court of Cassation dismissed the appeal of Rue de Feltre and upheld the judgment of the Court of Appeal. Its reasoning is based on Article 2241 of the Civil Code (in its wording resulting from the 2008 reform), which provides that a claim before a court, even in interim proceedings, interrupts the prescription period. But here, it was not a writ of summons (document initiating court proceedings): it was the notification of a memorandum in the context of proceedings already commenced.

The High Court extended this principle to the notification of a memorandum by registered letter with acknowledgement of receipt. It considers that the interruption of prescription (stopping the clock on the time limit) is effective from the posting of the letter, regardless of whether the recipient receives it after the expiry of the period. Why? Because the important thing is that the sender has manifested his intention to act within the prescribed time. The handing over to the postal service is an irreversible act that marks the creditor's step.

This is not a reversal of precedent (the Court had already ruled to this effect for other procedural acts), but an important confirmation. The solution is consistent with the purpose of prescription: to protect the person who acts within the time limit, and not to penalise the person who suffers postal delays. The judges considered that the landlord could not rely on the late receipt to defeat the action, given that the tenant had sent its memorandum before the crucial date.

This decision illustrates a fundamental principle in law: the date of posting is decisive, provided that the sender uses a reliable method of sending (LRAR). The burden of proof of the date of posting lies with the person who relies on it. Here, the tenant had kept the postal receipt, which made it possible to prove the posting on 24 November 2007.

What this changes for you — concretely

If you are an owner or tenant of a commercial premises, this decision directly concerns you. In the event of disagreement on the rent of the renewed lease, you must apply to the commercial rent judge within two years of the request for renewal. However, this application is preceded by the sending of a memorandum: it is this memorandum that interrupts the time limit. Thanks to this judgment, you now know that sending by LRAR before the expiry of the time limit is sufficient to interrupt prescription, even if the recipient only receives it afterwards.

Take a concrete example: you are the owner of a premises in Pont-l'Abbé, let at €1,200 per month. The tenant requests renewal on 1 March 2023. The time limit for taking action to fix the rent therefore expires on 1 March 2025. You prepare your memorandum and send it by LRAR on 28 February 2025. The postman attempts a first delivery on 1 March, but the tenant is absent. The item is held at the post office, then finally delivered on 5 March. Thanks to this judgment, your action is admissible: the posting on 28 February did interrupt the time limit.

For landlords: if you are in dispute with your tenant, do not delay sending your memorandum. Even if you think the time limit is about to expire, a last-minute posting is possible, provided you keep the proof of posting (receipt, postmark). For tenants: if you receive a memorandum after the expiry of the time limit, check the date of posting on the envelope or acknowledgement of receipt. If it is earlier, the action is valid.

Attention: this rule only concerns the interruption of prescription. The memorandum itself must be notified in due form (LRAR) and contain the elements required by law (calculation of rent, references, etc.). A simple email or ordinary letter would not suffice. Similarly, if you use another method of notification (hand delivery against receipt), the date of delivery will be decisive.

Four tips to avoid this type of dispute

• Send your memoranda by registered letter with acknowledgement of receipt, and keep the receipt safe. This is your proof of the date of posting. Without it, you risk being unable to demonstrate the interruption of the time limit. Keep it at least until the end of the proceedings.
• Do not wait until the last minute. Even if the case law protects you, it is better to send the memorandum several weeks before the expiry of the time limit. Postal strikes, address errors, or the recipient's absence can complicate delivery. An early sending avoids any unnecessary stress.
• Check the exact address of the recipient. An incorrect address may result in an invalid notification, and therefore an ineffective interruption. If the landlord is a legal entity, address the letter to its registered office. If it is an individual, use the address of the premises or that stated in the lease.
• If in doubt, seek advice from a lawyer specialising in property law. The procedure for fixing commercial rent is technical. A professional can draft the memorandum, choose the appropriate method of notification, and ensure compliance with time limits. In Douarnenez as in Quimper, do not hesitate to consult an expert.

Further analysis: related case law and developments

This decision is part of a consistent line of Court of Cassation rulings favourable to the interruption of prescription by the sending of an act. Thus, in a judgment of 13 December 2005 (n° 04-15.580), the Court had already held that the notification of a memorandum by registered letter interrupts the prescription period, regardless of whether the memorandum is delivered after the expiry of the period. The 2012 judgment confirms and consolidates this position.

More recently, the Court extended this principle to other acts, such as a writ of summons: it is the date of delivery of the act to the bailiff that counts, not its service on the recipient (Civ. 2e, 19 March 2015, n° 14-14.802). The trend is therefore clear: the judges favour the date of the act emanating from the creditor, rather than that of its receipt by the debtor. This prevents postal contingencies from nullifying legitimate rights.

For the future, this case law should remain stable. The 2008 reform of prescription (Law of 17 June 2008) incorporated this principle into Article 2241 of the Civil Code. Practitioners of property law, particularly in the jurisdiction of the Rennes Court of Appeal, are now well versed in this rule. But vigilance is required: the burden of proof lies with the sender. Without a receipt, no interruption.

Checklist before acting

• Have I checked the expiry date of the two-year period? The period runs from the request for renewal (or from the effective date of the renewal if later). Count exactly two years: if you miss by a day, you are time-barred.
• Is my memorandum complete? It must contain the proposed new rent, the reasons (change in local factors, indices, etc.) and be signed. An incomplete memorandum may be rejected.
• Have I chosen the correct method of sending? Registered letter with acknowledgement of receipt, hand delivery against receipt, or bailiff's deed. No ordinary letter, no email (unless the lease expressly provides for it).
• Have I kept proof of posting? Postal receipt, postmark, copy of the envelope. File it in your case.
• Do I have a lawyer to advise me? In the event of persistent disagreement, it is better to be accompanied. A preliminary consultation can avoid irreversible errors.

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 →