If the Action Seeking to Have a Clause of a Commercial Lease Deemed Unwritten Is Not Subject to Limitation

Application pratique:

Under this case law, the tenant can challenge the clause at any time, as actions to deem it unwritten are not subject to a limitation period. However, they can only claim repayment of overpayments for the five years preceding the legal claim. The refund must be calculated based on what the rent would have been without the clause from the start, not by using the rent amount at the beginning of the five-year period. The tenant should gather all payment records, compute the correct overpayment, and consult a solicitor to file a claim promptly.

Application pratique:

The case law confirms that the tenant’s refund is limited to the five years before the claim was filed, not the entire lease term. The landlord should recalculate the overpayment by subtracting the rent that should have been charged without the clause (the original base rent) from what was actually paid during those five years, not simply comparing to the rent at the start of that period. Engaging a property law expert to perform the correct calculation and potentially negotiating a settlement based on the accurate sum is the prudent course.

Application pratique:

During due diligence, the investor must review the indexation clauses for validity; if any are later deemed unwritten, tenants could claim refunds for up to five years of overpayments. To mitigate risk, request all rent payment histories, simulate the maximum potential refund liability, and negotiate a price reduction or an indemnity clause in the sale agreement. This case law highlights that the refund calculation must use the original base rent, so even a small clause issue can lead to significant claims. Consult a French notaire to properly assess and contractually address this risk.