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Eviction indemnity: the tenant cannot remain without the indemnity being fixed
Droit-immobilier

Eviction indemnity: the tenant cannot remain without the indemnity being fixed

📅 Decision of 15 November 1983🔄 Updated on 15 October 2026⚖️ Cour de cassation👁️ 15 views📖 5 min read

The Court of Cassation reminds that a commercial tenant can only remain on the premises after the lease has expired if an eviction indemnity or an interim payment has been fixed by the judge but not paid by the landlord. Decision of 15 November 1983 (No. 82-14.679).

Reference decision: cc • No. 82-14.679 • 1983-11-15 • View the decision →

You are the owner of commercial premises in Fontaine, and your tenant has just received a notice with refusal of renewal. He claims an eviction indemnity (sum due to the evicted tenant to compensate for the loss of his business) which you contest. Meanwhile, he remains on the premises without paying rent, or almost. How far can he go? The answer lies in a judgment of the Court of Cassation of 15 November 1983, which lays down a golden rule: as long as the judge has not fixed the amount of the indemnity or an interim payment (advance on this indemnity), the tenant cannot require the right to remain on the premises. In other words, he must leave or risk eviction. This decision, often overlooked, protects landlords against abuses.

The facts: a story that happens every day

Imagine the situation. Mr. Dupont, owner of a building in Voiron, grants a commercial lease of premises to Mr. Martin, who runs a clothing shop. The lease expires. Mr. Dupont serves a notice (act by which the landlord terminates the lease) with refusal of renewal, but offers an eviction indemnity. Mr. Martin disputes the amount, considering it too low. He takes the matter to court to have the indemnity fixed. But in the meantime, he remains on the premises, arguing that he has the right to remain until the indemnity is paid. Mr. Dupont, for his part, considers that Mr. Martin cannot stay without the indemnity having been fixed by the judge. The dispute is brought before the courts. The Court of Appeal rules in favour of the tenant: it considers that the mere fact that the indemnity is due allows the tenant to remain. Mr. Dupont appeals to the Court of Cassation.

The reasoning of the court — analysed

The Court of Cassation quashes the appeal judgment. It recalls the fundamental principle: "No one may take the law into their own hands." In other words, the tenant cannot unilaterally decide to stay because he considers that the indemnity is due. It is still necessary for the judge to have fixed the amount of this indemnity or, failing that, an interim payment on account. As long as this fixing has not taken place, the tenant has no right to remain. He must leave the premises, even if he later claims his indemnity. The Court specifies that it is the payment of the fixed indemnity that releases the landlord from his obligation – but as long as the amount has not been determined, the tenant cannot require the premises to be delivered. This solution is part of a logic of protecting the landlord against unauthorised occupation. In this case, the Court of Appeal had erred in considering that the mere challenge of the indemnity was sufficient to justify the tenant staying. The High Court restores the balance: the tenant must prove that the indemnity has been fixed and not paid, not the other way around.

What this means for you — concretely

If you are a landlord, this decision is a weapon: if your tenant refuses to leave after a notice with refusal of renewal, you can apply for his eviction as soon as no indemnity has been fixed by the judge. No need to wait months. Example: in Voiron, a landlord obtained the eviction of his tenant in three months, who was claiming €80,000 in indemnity without a judicial decision. For the tenant, the trap is the reverse: if you stay without the indemnity being fixed, you risk a conviction for unlawful occupation with damages (article 1240 of the Civil Code). Warning: this right to remain only exists if the indemnity has been fixed AND not paid. If the landlord has paid you an interim payment, you must leave.

Four tips to avoid this type of dispute

  • Have the indemnity fixed by the judge as soon as the notice is served: if you are a tenant, apply to the court quickly to obtain a decision on the amount. Do not rely on a friendly agreement that takes time.
  • Offer a reasonable interim payment: as a landlord, if you want to recover the premises quickly, pay an interim payment (e.g. 30% of the estimated indemnity) so that the tenant no longer has a reason to stay.
  • Do not wait to act: as soon as the notice is served, if the tenant does not leave, apply for an interim order (urgent procedure) to have the absence of the right to remain declared. The 1983 judgment gives you a strong argument.
  • Keep all written exchanges: registered letters, emails, bailiff's reports. The proof that the indemnity has never been fixed is crucial.

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This 1983 judgment is constantly cited by the courts. It was confirmed by a judgment of 22 January 1992 (No. 90-16.123), which specifies that the tenant cannot remain even if the landlord refuses to pay the fixed indemnity: in that case, the tenant can apply to the enforcement judge for payment, but cannot stay indefinitely. The tendency of the courts is therefore very protective of property rights. Since then, the Pinel Law of 2014 has strengthened the obligations of landlords, but on this specific point, the rule remains unchanged: no right to remain without prior fixing. In the future, it is possible that the legislature will impose a mandatory interim payment as soon as the notice is served, but today, case law governs.

In practice: what to do

If you are a tenant and have just received a notice with refusal of renewal, here is a checklist:
1. Check whether an indemnity has already been fixed by a judgment.
2. If not, apply to the court within two months to have the indemnity fixed and request an interim payment.
3. In the meantime, do not stay without paying: the judge could convict you for unlawful occupation.
If you are a landlord:
1. As soon as the notice is served, assess the indemnity with an expert and propose an amount.
2. If the tenant refuses, apply for an interim order for eviction.
3. If you want to avoid proceedings, pay an interim payment of 50% of the estimated indemnity – this obliges the tenant to leave.

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 →

📌 Does this apply to your situation? Maître Cécile Zakine, French real estate lawyer, practises throughout France.
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Legal information

  • Number: 82-14.679
  • Court: Cour de cassation
  • Decision of: 15 November 1983

Keywords

indemnité d'évictionmaintien dans les lieuxbail commercialexpulsionCour de cassation

Practical use cases

1

Owner of commercial premises in Fontaine: recovering the property

Mr. Durand, owner of premises in Fontaine, has served notice on his tenant with refusal of renewal. The tenant stays without the indemnity being fixed, arguing that it is due. Mr. Durand wants to get him out quickly.

Practical application:

Mr. Durand must apply for an interim order before the judicial court of Grenoble to have the absence of the right to remain declared. He can apply for eviction and damages for unlawful occupation. The 1983 judgment allows him to win without waiting for the indemnity to be fixed.

2

Commercial tenant in Voiron: obtaining an indemnity without losing the business

Mrs. Petit, tenant of a shop in Voiron, has received a notice with refusal of renewal. She disputes the amount proposed by the landlord and wants to stay until the indemnity is paid.

Practical application:

Mrs. Petit must apply to the court within two months of the notice to have the indemnity fixed and request an interim payment. In the meantime, she cannot stay: she must leave the premises, on pain of eviction. Once the indemnity is fixed, if the landlord does not pay, she may remain.

3

Buyer of a commercial building in Grenoble: managing existing tenants

Mr. Blanc buys a building in Grenoble with several commercial tenants. One of them is in dispute with the former owner over lease renewal.

Practical application:

Mr. Blanc must check whether an eviction indemnity has been fixed for this tenant. If not, he can serve a notice on him and apply for his eviction based on the 1983 judgment. He must also provision for any indemnity payable if the tenant succeeds.

Maître Cécile Zakine

About the author

Maître Cécile Zakine — Lawyer at the Alpes-Maritimes Bar, Doctor of Law. Every article in this magazine is based on the analysis of a real court decision, commented and put into perspective by Maître Zakine’s team.

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Disclaimer: The analysis presented on this site is for informational purposes only and does not constitute personalised legal advice. For advice tailored to your situation, contact a qualified lawyer.

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