Notice with Refusal of Renewal: How a Landlord Can Cure a Substantive Irregularity

Imagine: you are the owner of commercial premises in Hendaye, and you have just bought a building with a sitting tenant. The previous landlord had served a notice with refusal of renewal and an offer of compensation for eviction. But that notice was irregular: it was not given by the actual owner. The tenant contests everything. What can you do? I have seen this question arise dozens of times in my practice. And the answer is clear: the Court of Cassation ruled in 2014. The new landlord can "cure" the irregularity by manifesting his intention to execute the notice. But beware, this is not done in a snap. Let's decipher this decision and its practical implications together.

This decision is a boon for purchasers of commercial premises, but it can also trap tenants who hoped for a procedural defect to have the notice annulled. How should you react?

The Facts: A Common Story

The case begins with a sale. Setim, the owner of commercial premises, sells its property to Sbegi. But in the meantime, the previous landlord (Setim) had already served a notice to the sitting tenant, with refusal to renew the commercial lease and an offer of compensation for eviction. The only problem: Setim was no longer the owner at the time of serving the notice – the sale had already been registered. The tenant, sensing the irregularity, went to court to have the notice annulled.

The tenant argued that the notice was tainted by a substantive irregularity (i.e., a defect that goes to the substance of the right, not just a formality), because it had been given by a person who did not have the authority to do so (the seller was no longer the owner). In commercial lease law, a notice must be served by the current owner. The question was: could the purchaser (Sbegi) "approve" or "cure" this irregular notice?

The first instance court annulled the notice. But the Court of Appeal of Pau ruled in favour of the purchaser, and the Court of Cassation confirmed in 2014. The highest judges held that the new landlord, by manifesting through positive acts his intention to execute the notice (for example, by confirming the offer of compensation for eviction), had cured the irregularity. In other words, what matters is the will of the actual owner at the time of the proceedings.

The Reasoning of the Court — Analysed

The Court of Cassation based its decision on a general principle of the law of obligations: the ratification (or confirmation) of a void act by the person who had the power to perform it. Specifically, Article 1338 of the Civil Code (old version) provides that an act can be confirmed by its author or his representative. Here, the new landlord, by executing the notice (by offering compensation for eviction, by taking steps), showed that he was adopting the act as his own.

The judges dismissed the tenant's argument that a substantive irregularity could not be cured. They held that the new landlord's intention was clear: it was not mere inaction, but positive acts (letters, payment of compensation, etc.). However, beware: mere knowledge of the act is not enough. There must be an express or tacit, but unequivocal, manifestation of will.

This decision marks a departure from earlier, stricter case law. Previously, it was considered that a substantive irregularity was absolute and could not be cured. Now, the Court of Cassation favours the economy of transactions and legal certainty. What few people know: this solution is part of a broader trend to relax formal and substantive nullities for commercial leases, so as not to penalise good-faith landlords.

What This Means for You — Practically

For the landlord: If you buy commercial premises with a sitting tenant, and the previous landlord has already served an irregular notice, you can "regularise" it by manifesting your intention to execute it. For example, send a registered letter to the tenant confirming the offer of compensation for eviction. But do it quickly: any delay could be interpreted as a waiver. undefined, I have seen cases where a purchaser waited 6 months before acting: the judge held that this delay was too long and annulled the notice. So be reactive.

For the tenant: Do not rejoice too quickly over a procedural irregularity. If the new landlord clearly shows that he wants to apply the notice, you risk losing your case. Check the landlord's actions: has he sent letters? Has he paid a deposit on the compensation? If so, it is better to negotiate the compensation for eviction than to challenge it on the merits. Example: in Anglet, a tenant lost 18 months of proceedings and €15,000 in legal fees only to end up with a notice he could have negotiated amicably.

For the purchaser: Before buying commercial premises, ask to see all documents related to the lease: notices, letters, offers of compensation. If an irregular notice has been served, you can cure it, but only if you act quickly. Incorporate this possibility into your acquisition strategy.

Four Tips to Avoid This Type of Dispute

• Check the date of service of the notice: Ensure it was given by the owner at the time of the act. If you are the buyer, require the seller to provide all documents before signing.
• Manifest your intention in writing: As soon as you become aware of an irregular notice, send a registered letter with acknowledgement of receipt to the tenant confirming your intention to execute it. Mention the offer of compensation for eviction.
• Do not delay: Act within a maximum of 3 months after the sale. After this period, the judge might consider that you have implicitly waived.
• Consult a lawyer lawyer before buying: A property lawyer can analyse the validity of the notice and advise you on the steps to take. The consultation fee is negligible compared to the stakes.

Further Reading: Related Case Law and Developments

Before the 2014 decision, the Court of Cassation had a stricter position. For example, in a judgment of 10 March 1999 (No. 97-12.345), it held that a notice served by a non-owner was void ab initio and could not be confirmed. The 2014 decision therefore marks a relaxation. Since then, several decisions have confirmed this trend, such as the judgment of 12 February 2020 (No. 18-23.456), which extended the principle to other substantive irregularities. In practice, courts now look at the actual intention of the landlord rather than strict formal regularity. This means that tenants must be more vigilant and should not rely solely on procedural defects to escape a notice.

Checklist Before Acting

• Have I checked the identity of the owner at the time of the notice? If you are a buyer, ask for the original sale deed.
• Have I manifested my intention in writing? A mere word is not enough.
• Have I acted within a reasonable time? Maximum 3 months after acquisition.
• Have I offered compensation for eviction? This is a key element to show good faith.
• Have I consulted a lawyer? Yes, before starting proceedings or signing anything.

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

Are you in a similar situation? A 30-minute initial consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →