Nullity of the Memorandum After Expert Report: Interrupted Two-Year Limitation Period Saves the Claim for Rent Fixing

Imagine: you are the owner of a commercial premises in Denain. You give notice to your tenant with an offer of renewal. The rent has not been reviewed for years. You start proceedings to fix the new rent. The expert files his report. But your lawyer forgets to serve a memorandum in time. The tenant cries nullity. Case lost? Not so fast. The Court of Cassation, in a judgment of 24 September 2014 (No. 13-17.478), comes to the rescue of the landlord who rectifies his error before the judge rules on the nullity.

When a formality is omitted, the legislature sometimes offers a second chance. This is what the High Court reminds us: if the memorandum is ultimately served before the court rules on the plea of nullity, and the two-year limitation period has been interrupted (notably by the writ of summons), the action remains admissible. A breath of fresh air for landlords, but also a reminder to be vigilant.

This decision, rendered within the jurisdiction of the Aix-en-Provence Court of Appeal, directly concerns landlords in Douai, Lille, or throughout France. It clarifies the rules of the game regarding the procedure for fixing the rent of commercial leases. Want to know how to avoid this type of trap? Follow the guide.

The Facts: A Story That Happens Every Day

Mrs X, owner in Grimaud (Var), leased two plots to a tenant operator since 1997. On 13 September 2006, she served a notice with an offer of renewal. Normally, within two years of the effective date of the notice (i.e., no later than 13 September 2008), the landlord must apply to the commercial rent judge to fix the rent of the renewed lease. Mrs X did issue a writ within the time limit, on 2 November 2007. The case was set for directions, an expert was appointed. He filed his report.

But then: the tenant raised a plea of nullity. She argued that the landlord had not served a memorandum before the hearing, as required by the procedure. Indeed, in the context of rent fixing, the landlord must, after the writ, serve a memorandum containing his claims and offers. If this memorandum is not served within the time limits, the action may be declared inadmissible. The tenant took advantage of this.

The Draguignan court, then the Aix-en-Provence Court of Appeal (14 March 2013), were seised. In the meantime, Mrs X served her memorandum after the expert report was filed, but before the judge ruled on the plea of nullity. The Court of Appeal declared the action inadmissible, considering that the initial failure to serve the memorandum was a defect that could not be remedied. Mrs X appealed to the Court of Cassation.

The Court of Cassation quashed the judgment. It recalled that the memorandum had indeed been served before the judge ruled on the nullity, and that the two-year limitation period had been interrupted by the writ of 2 November 2007. Therefore, the action is admissible. A victory for the owner, but a lesson for all.

The Reasoning of the Court — Analysed

The Court of Cassation relies on Article L. 145-57 of the Commercial Code (which governs the procedure for fixing the rent of commercial leases) and on the general principles of limitation. It recalls that the action for rent fixing must be brought within two years from the effective date of the notice (Article L. 145-60 of the Commercial Code). This period is interrupted by a writ of summons, as is the case here.

The problem was the failure to serve the memorandum. In civil procedure, certain acts must be performed on pain of nullity. But nullity is not automatic: it can be cured if the act is regularised before the judge rules on the plea of nullity (Article 121 of the Code of Civil Procedure). This is exactly what happened: Mrs X served her memorandum after the expert report, but before the hearing where the nullity was to be examined.

The Court of Cassation adds that the two-year limitation period was interrupted by the writ. Therefore, even if the initial memorandum had not been served, the action was not time-barred. The late service thus regularised the procedure. The High Court censured the appeal judgment which had declared the action inadmissible without taking this regularisation into account.

Two arguments were opposed: on one side, the tenant argued that the initial failure to serve the memorandum was a substantive defect incapable of being regularised; on the other, the landlord argued that the memorandum had been served before the judge ruled, and that the limitation period was interrupted. The Court ruled in favour of the landlord, endorsing a pragmatic approach: as long as the judge has not decided the nullity issue, there is still time to regularise.

What This Changes for You — Concretely

For landlord owners: if you have forgotten to serve a memorandum in the context of a rent fixing procedure, you can still do so before the court renders its decision on nullity. However, note: the two-year limitation period must have been interrupted. If you issued a writ within two years of the notice, you are safe. But if you delayed, a late service will not save a time-barred action.

Let's take a concrete example: in Douai, an owner gives notice on 1 January 2023 with an offer of renewal. He must apply to the judge before 1 January 2025. He issues a writ on 15 December 2024. An expert is appointed, files his report in March 2025. The owner has not served his memorandum. The tenant raises nullity in April 2025. The owner serves his memorandum in May 2025, before the hearing on nullity. The action is admissible. Without this late service, it would have been inadmissible, and the rent would have remained that of the initial lease.

For tenants: this decision reduces your room for manoeuvre. You can no longer rely on a simple procedural error to defeat a rent increase claim. You must therefore be vigilant on the merits: contest the proposed amount, demonstrate that the rent is excessive, etc.

For property professionals: note that the time to regularise a failure to serve extends until the judge rules on the nullity. This gives you precious time to correct an omission.

Four Tips to Avoid This Type of Dispute

• Scrupulously respect the time limits for service: as soon as the writ is issued, prepare your memorandum and serve it on the other party in the required form (registered letter with AR or hand delivery against receipt). A shared calendar with your lawyer can prevent oversights.
• Check the two-year limitation period: before any action, calculate precisely the deadline for applying to the judge. A notice given on 1 June 2022 expires on 1 June 2024. If you exceed it, even subsequent regularisation will not help.
• Anticipate challenges: the tenant may raise procedural nullities. To counter them, build a complete file from the start: lease, notice, acknowledgment of receipt, correspondence. This will allow you to prove that you have complied with the formalities.
• Engage a specialist lawyer from the start: the procedure for fixing the rent of commercial leases is technical. A lawyer knows the pitfalls and can avoid them. In Denain as in Douai, many firms specialise in property law. Do not hesitate to seek advice.

Further Reading: Related Case Law and Developments

This decision is part of a jurisprudential trend favourable to the regularisation of procedural defects. The Court of Cassation had already ruled, in a judgment of 6 February 2013 (No. 12-13.972), that nullity for failure to serve a memorandum can be cured if the memorandum is served before the judge rules. The 2014 judgment confirms and specifies that an interrupted two-year limitation period does not prevent such regularisation.

Conversely, if the memorandum is never served, nullity is incurred. The Paris Court of Appeal, in a judgment of 12 September 2012, declared an action inadmissible for failure to serve the memorandum, even after an expert report, because the memorandum had never been served. The difference is therefore fundamental: service, even late, is essential.

In the future, courts will likely continue to favour a pragmatic approach, allowing actions to be saved when regularisation occurs before the judge decides. This provides security for landlords but requires increased vigilance regarding time limits.

Frequently Asked Questions

What is a memorandum in the context of a commercial lease?
It is a written document by which the landlord (or tenant) sets out his claims regarding the amount of rent for the renewed lease, his offers, and justifications (indices, works, etc.). It must be served on the other party.

Can I regularise a failure to serve after the hearing?
No, regularisation must occur before the judge rules on the plea of nullity. Once the hearing is held and the decision rendered, it is too late.

What is the time limit to bring an action for rent fixing after a notice?
You have two years from the effective date of the notice to apply to the judge. This period is prescribed on pain of forfeiture.

What if my lawyer forgets to serve the memorandum?
Contact him immediately. He can still serve the memorandum before the hearing on nullity. If the judge has not yet ruled, the action can be saved.

Does this decision apply to all commercial leases?
Yes, it concerns the procedure for fixing the rent of commercial leases, governed by Articles L. 145-55 to L. 145-60 of the Commercial Code. It is applicable throughout the territory, including in the jurisdiction of Douai.

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