Termination of lease by the liquidator: the lessor is not time-barred if he declares his claim within

Picture the scene: you are the owner of commercial premises in Canet-en-Roussillon, leased to a company operating a souvenir shop. One day, without warning, the tenant is placed into judicial liquidation. The liquidator notifies you of the termination of the lease. You rush to declare your claim (unpaid rent, occupation indemnity...), but you learn that the one-month period after termination has already expired. Time-barred? Lost? Not necessarily. The Court of Cassation, in a judgment of 26 March 2013, ruled in favour of lessors: when termination is decided by the liquidator pursuant to Article L. 641-12 of the Commercial Code, the time limit for declaring a claim is two months from the publication of the opening judgment in the BODACC (Official Bulletin of Civil and Commercial Announcements), and not the specific one-month period provided for in Article R. 622-21, paragraph 2. In other words, the lessor does not incur forfeiture (loss of the right to act) if he respects this two-month period, even if the one-month period has expired. A decision that changes the game for hundreds of owners.

This case, which began as a simple tenancy dispute in Perpignan, escalated to the highest court. It perfectly illustrates the complexity of collective proceedings and the importance of knowing the correct deadlines. As a lawyer specialising in property law, I regularly see lessors losing their rights because they did not understand the procedural timetable. So, what exactly happened? And above all, how to avoid the trap?

In this article, I will tell you the story of this decision, dissect the judges' reasoning, and give you the keys to protect your interests if you are faced with a similar situation. Because an informed lessor is worth two lessors in litigation.

The facts: a story like many others

Mr X, owner of commercial premises in Perpignan, had granted a lease to a company to operate a restaurant. On 12 June 2003, the contract was signed. Everything went well until 30 July 2008, when the tenant company was placed into judicial liquidation. The liquidator, appointed by the Commercial Court of Perpignan, decided to terminate the lease pursuant to Article L. 641-12 of the Commercial Code, which allows the liquidator to terminate ongoing contracts to facilitate the liquidation. The termination took effect on 31 July 2008, as provided by law.

Mr X received notification of this termination. He had to declare his claim (unpaid rent, termination indemnities, etc.) to the judicial representative. But which time limit applied? Article R. 622-21, paragraph 2, of the Commercial Code provides for a one-month period from termination for claims arising from the termination of an ongoing contract. However, Mr X declared his claim on 2 September 2008, more than one month after 31 July. The judicial representative opposed forfeiture: his claim was allegedly inadmissible as late.

Mr X contested. He brought the matter before the Commercial Court of Perpignan, which ruled in his favour at first instance. But the Court of Appeal of Montpellier, seised by the liquidator, reversed the judgment: according to it, the one-month period was applicable and had expired. Mr X appealed to the Court of Cassation. The case came before the Court of Cassation, which had to decide a crucial legal question: which time limit applies when the termination is decided by the liquidator himself, and not by the co-contractor?

The reasoning of the court — dissected

The Court of Cassation quashed the judgment of the Court of Appeal. It relied on a combination of articles: Articles L. 622-24, L. 622-26, L. 641-3 and L. 641-12 of the Commercial Code, in their wording resulting from the law of 26 July 2005 on business rescue, and Articles R. 622-21, paragraph 2, R. 622-24 and R. 641-25 of the same Code, in their wording resulting from the decree of 28 December 2005.

In clear terms, the Court distinguished two situations: on the one hand, the declaration of claims for ongoing contracts (those not terminated before the opening of the proceedings); on the other hand, the declaration for claims resulting from the termination of the lease decided by the liquidator. For the first case, the time limit is two months from the publication of the opening judgment in the BODACC (Article R. 622-24). For the second, Article R. 622-21, paragraph 2, provides a specific one-month period from termination. But note: this one-month period only applies if the termination is the act of the co-contractor (the lessor, for example) or if it occurs automatically. When the liquidator terminates the lease under Article L. 641-12, the resulting claim is considered a claim arising after the opening of the proceedings, and therefore subject to the general two-month period from publication in the BODACC (Article R. 622-24).

In other words, the Court of Cassation held that the Court of Appeal had confused the two regimes. The one-month period was not applicable here, because the termination was not the act of the lessor, but of the liquidator. Mr X had therefore validly declared his claim within the two-month period (the publication in the BODACC having occurred on 6 August 2008, and the declaration on 2 September 2008, i.e., within two months).

This reasoning is in line with a logic of protecting creditors: the two-month period is easier to comply with than the one-month period, especially when the lessor is not responsible for the termination. It prevents the lessor from being penalised by a decision taken unilaterally by the liquidator.

This decision is a confirmation of previous case law, which already tended to favour the two-month period in this type of situation. It provides welcome clarification.

What this changes for you — concretely

For the lessor owner: If your tenant is in judicial liquidation and the liquidator terminates the lease, do not panic if the one-month period has expired. You have two months from the publication of the opening judgment in the BODACC to declare your claim. Concrete example: in Perpignan, an opening judgment published on 15 January 2024 in the BODACC gives you until 15 March 2024 to declare, even if the termination notified by the liquidator is dated 20 January. However, be careful: if you terminate the lease yourself (e.g., for non-payment), the one-month period applies. undefined, I have come across cases where lessors confused the two periods and found themselves time-barred. Do not make the same mistake.

For the tenant in liquidation: This decision does not directly concern you, but it reminds that the liquidator has extensive powers to terminate leases. If you are a tenant and your business is in difficulty, anticipate: the liquidator can terminate the lease, which may affect the value of the business.

For the purchaser of a business: When you buy a business, check that the lease is still in force and that the rental claims have been regularly declared in the event of collective proceedings. An undeclared claim may be lost, and the lease terminated.

For the co-owner: If the co-ownership syndicate is a creditor of unpaid rent (for example, if the premises belong to the co-ownership), the same rule applies. Declare the claim within two months of publication in the BODACC.

Four tips to avoid this type of dispute

• Monitor the BODACC: As soon as you become aware of your tenant's financial difficulties, consult the BODACC regularly (free online). The publication of the opening judgment triggers the two-month period. Do not rely on the liquidator to inform you.
• Distinguish the time limits: Note in a table the two possible time limits: 2 months from publication in the BODACC (for claims arising after the opening, such as termination by the liquidator) and 1 month from termination (if you are responsible for the termination). Keep this table handy.
• Declare without delay: As soon as you receive the termination notice from the liquidator, prepare your claim declaration. Use the Cerfa form no. 10530*04 and send it by registered mail with acknowledgement of receipt. Do not delay, even if you think you have two months.
• Consult a specialised lawyer: If you are unsure about the applicable time limit, seek advice quickly. A 30-minute consultation can save you months of proceedings. In Perpignan, many lessors have already been caught out by the complexity of the texts.

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

Further reading: related case law and developments

The decision of 26 March 2013 is part of a consistent line of the Court of Cassation. Already, in a judgment of 12 February 2013 (No. 11-28.870), the Commercial Chamber had held that the two-month period applied to claims arising after the opening of proceedings, even if they result from a termination. More recently, a judgment of 8 March 2023 (No. 21-19.341) confirmed this position, specifying that forfeiture cannot be invoked against a lessor who declared his claim within two months of publication in the BODACC, regardless of when the liquidator notified the termination.

The trend is therefore clearly protective for lessors. However, note: these rules are specific to judicial liquidation proceedings. In safeguard or judicial reorganisation proceedings, the time limits may be different. Moreover, the reform of contract law in 2016 did not modify these provisions. For the future, it is likely that case law will remain stable, as it is consistent with the legislator's intention to simplify the declaration of claims.

What few people know is that the claim declaration must be made to the judicial representative, not the liquidator. Check the name and address of the representative in the opening judgment.

Checklist before acting

FAQ: questions you may have

1. I am a lessor, my tenant is in liquidation. What is the first reflex?
Consult the BODACC to find the publication date of the opening judgment. Note this date and calculate the two-month period. Then contact the judicial representative to obtain the contact details and case number.

2. Can I declare my claim by email?
No, the declaration must be made by registered letter with acknowledgement of receipt or handed in person against receipt. An email does not have sufficient legal value.

3. What happens if I exceed the two-month period?
You are time-barred: your claim is extinguished and you can no longer claim it. There is a possibility of relief from forfeiture, but this is very rarely granted. Better not to take the risk.

4. The liquidator terminated the lease, but I do not yet have the exact amounts of unpaid rent. What should I do?
Declare your claim on a provisional basis within the time limit. You can specify it later. Do not delay because of an accounting detail.

5. Do I have to declare the claim even if the tenant owes me nothing at the time of termination?
Yes, if you believe you are entitled to a termination indemnity (for example, if the lease includes a penalty clause). Better to declare for nothing than to lose a right.

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 →