Termination of commercial lease and judicial liquidation: what can the juge-commissaire do?

Imagine: you own a commercial premises in Saintes, leased to a company that has just been placed into judicial liquidation. The tenant continues to occupy the premises but no longer pays the post-judgment rents. You want to recover your property, but the liquidator opposes you with a request for time. How far can the judge go? The French Supreme Court ruled on 18 May 2022: the juge-commissaire, seized under Article L. 641-12, 3° of the Commercial Code, cannot grant any payment delays, neither under general law (Article 1343-5 of the Civil Code) nor under the statutory regime for commercial leases (Article L. 145-41 of the Commercial Code). Only a three-month period is enforceable against the landlord, that of Article R. 641-21 of the Commercial Code. This decision clarifies the powers of the juge-commissaire and protects landlords against abusive suspensions. But what exactly does this change for you?

The facts: a story like many others

The company Carla, tenant of a commercial premises in Aytré, was placed into judicial liquidation on 1 March 2018. The landlord, the owning SCI, sent a formal notice to the liquidator to pay the post-judgment rents, which had remained unpaid since February 2018. The liquidator did not pay. The landlord then applied to the juge-commissaire of the Commercial Court of La Rochelle for a declaration of automatic termination of the lease, under Article R. 641-21 of the Commercial Code. The juge-commissaire declared the termination, but the liquidator appealed, arguing that the judge should have granted payment delays. The Poitiers Court of Appeal upheld the termination, and the liquidator appealed to the Supreme Court. The Supreme Court dismissed the appeal: the juge-commissaire has no power to grant delays. The special procedure under Article L. 641-12, 3° is exclusive.

The reasoning of the court — broken down

The Supreme Court distinguishes between two procedures: on the one hand, the action for a declaration of automatic termination of the lease for non-payment of post-judgment rents, based on Article L. 641-12, 3° of the Commercial Code (which allows the landlord to request the juge-commissaire to declare the automatic termination of the lease if the rents are not paid within three months of a formal notice); on the other hand, the action for enforcement of the general law forfeiture clause, based on Article L. 145-41 of the Commercial Code (which governs commercial leases and allows the court to grant payment delays to suspend the termination). The Court recalls that the first procedure is subject to specific conditions and is distinct from the second. Consequently, the juge-commissaire cannot apply Article L. 145-41 (which provides for delays) nor Article 1343-5 of the Civil Code (general grace periods). The only period enforceable against the landlord is the three-month period provided by Article R. 641-21, during which the landlord cannot act. In other words, once the formal notice has been sent, the liquidator has three months to pay; after that period, the juge-commissaire must declare the termination without being able to grant additional delays. What few people know is that the juge-commissaire has no discretion: if the conditions are met (lease in force, judicial liquidation, unpaid post-judgment rents, unsuccessful three-month formal notice), he must declare the termination. He cannot, for example, grant a six-month payment schedule.

What this changes for you — concretely

For the landlord: you can now act more quickly. As soon as your tenant is in judicial liquidation and does not pay post-judgment rents, send a formal notice by bailiff's deed to the liquidator. Wait three months, then apply to the juge-commissaire. He will declare the termination, and you can recover your premises. Concrete example: in Saintes, a 100 sqm premises rented for €1,500 per month. If the tenant does not pay for three months, you lose €4,500, but you recover the premises. Without this decision, the judge could have granted six months' delays, causing you to lose an additional €9,000. For the tenant (or liquidator): you cannot hope for payment delays beyond three months. If you want to keep the lease, you must pay within three months of the formal notice. For the purchaser of the business or premises: be vigilant: if the tenant is in liquidation, the lease can be terminated quickly. Check that post-judgment rents are up to date.

Four tips to avoid this type of dispute

• For the landlord: as soon as a judicial liquidation is opened, ask the liquidator to confirm in writing that he intends to continue the lease. In case of silence, send a formal notice to pay the rents within three months.
• For the tenant: if you are in judicial liquidation and want to keep the lease, pay post-judgment rents as soon as you receive the formal notice. Do not rely on court delays.
• For both parties: keep all payment receipts and written exchanges carefully. Proof of the formal notice is crucial.
• For any professional: anticipate by including a standard forfeiture clause in the lease, but know that in judicial liquidation, the special procedure prevails.

Further reading: related case law and developments

This decision confirms earlier case law (Civ. 3e, 15 November 2018, No. 17-25.622) which had already excluded the application of Article L. 145-41 in the context of judicial liquidation. The Supreme Court goes further by also excluding Article 1343-5 of the Civil Code. The trend is therefore clear: the juge-commissaire is a judge with limited powers, and the legislator intended to protect the landlord by accelerating lease termination after liquidation. undefined, I have encountered cases where liquidators tried to drag things out by requesting delays; this decision discourages them. Note, however, that this solution only applies to post-judgment rents. For pre-judgment rents, general law applies.

Checklist before acting

• Is the tenant in judicial liquidation? Check the opening judgment at the registry of the commercial court.
• Are the unpaid rents post-judgment? Yes? You are within the scope of Article L. 641-12, 3°.
• Have you sent a formal notice by bailiff's deed or registered letter with acknowledgment of receipt? This is mandatory. Wait three months.
• Has the liquidator paid within three months? No? Apply to the juge-commissaire for a declaration of termination.
• Can the juge-commissaire grant delays? No, he must declare the termination.

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