Two-Year Limitation Period for Commercial Rent: When a Late Memorandum Is Not Enough

Imagine: you are the owner of commercial premises in Beaumont-de-Lomagne, leased to a travel agency since 1996. The lease expires in 2006. You give notice to quit, but without specifying the new rent you want. Then, three years later, you send a memorandum for the fixing of the rent to your tenant. Too late, says the Court of Cassation. Why? Because the two-year limitation period (the time limit of two years to take action) started running from the effective date of the new lease, and your late request did not interrupt this period. This decision, handed down on 9 July 2014 (No. 13-15.643), is a real wake-up call for negligent landlords. So, how to avoid this trap? Follow the guide.

The Facts: A Story That Happens Every Day

In June 1996, a commercial lease was signed between an owner and the company Havas Tourisme (became Thomas Cook) for premises located in Beaumont-de-Lomagne. The lease provided for a rent of €15,000 per year. On 28 June 2006, the landlord served a notice to quit (an act by which he terminates the lease) with an offer of renewal, but without indicating the price he wanted. The notice took effect on 28 June 2008, the date on which the lease expired. The tenant remained in the premises, but no agreement was reached on the new rent. On 7 October 2009, more than a year after the new lease took effect, the landlord served a memorandum for the fixing of the rent (an act by which he seises the commercial rent judge). The tenant then raised the two-year limitation period: the action for fixing the rent had to be brought within two years following the effective date of the new lease, i.e., before 28 June 2010. The landlord argued that his memorandum had interrupted the limitation period, but the Court of Appeal and the Court of Cassation ruled against him. Why? Because the memorandum, which merely requests the fixing of the rent without having indicated a price in the notice to quit, is not a request that interrupts the limitation period within the meaning of Article 2244 of the Civil Code (which lists interrupting acts).

The Reasoning of the Court — Dissected

The Court of Cassation relies on Article L. 145-57 of the Commercial Code (provision relating to commercial leases), which provides that the action for fixing the rent must be brought within a period of two years from the effective date of the new lease. This period is a limitation period: after this period, the landlord can no longer claim a rent increase. The landlord had nevertheless tried to rely on Article 2244 of the Civil Code (which lists acts that interrupt the limitation period: service of process, seizure, etc.), arguing that his memorandum for the fixing of the rent constituted an interrupting act. But the Court recalls that the memorandum is only interrupting if it is preceded by a notice to quit or a reply mentioning the price requested. However, here, the notice to quit did not specify any price. Consequently, the memorandum, although served within the two-year period (October 2009), did not interrupt the limitation period, because it was not an accessory to a prior request for a price. In short, the landlord should have either indicated a price in the notice to quit, or, failing that, taken action to fix the rent within two years following the effective date of the new lease, without waiting. The solution is harsh but logical: it prevents landlords from indefinitely postponing the fixing of the rent. This decision confirms previous case law (Civ. 3e, 18 May 2011, No. 10-17.690) and is not innovative, but it forcefully reminds us of the procedural rules.

What This Changes for You — Concretely

For a landlord-owner, this decision is a warning: if you give notice to quit without indicating the new price, you must imperatively seise the commercial rent judge within two years following the effective date of the new lease. A simple later memorandum is not enough. Example with figures: in Caussade, a landlord gives notice on 1 January 2024 for a lease expiring on 31 December 2024. He does not mention the new rent. The new lease takes effect on 1 January 2025. To avoid limitation, he must act before 1 January 2027. If he sends a memorandum in March 2027, the action will be time-barred. For a tenant, this decision is protective: if the landlord delays, you can raise the limitation period and keep the old rent. For a purchaser of the premises, check the deadlines: if the previous landlord let the period pass, you will not be able to claim a higher rent. Finally, for a property professional, remind your landlord clients of the importance of fixing the price at the time of the notice to quit.

Four Tips to Avoid This Type of Dispute

• Indicate the price in the notice to quit or in the reply to the renewal request. This is the simplest step: clearly mention the desired rent. This interrupts the limitation period and avoids any dispute.
• Act quickly after the expiry of the lease. As soon as the new lease takes effect (or at the latest on the effective date of the notice), initiate the fixing procedure if no agreement is reached. Do not exceed two years.
• Have a memorandum for the fixing of the rent served within two years. If you omitted the price in the notice, the memorandum must be delivered before the expiry of the two-year period. But beware: it only interrupts the limitation period if it is accompanied by a notice with a price, or if it is preceded by such a notice. In practice, it is better not to rely on the interrupting effect of the memorandum alone.
• Consult a specialist lawyer at the first sign of disagreement. A professional will help you comply with the formalities and deadlines. In Beaumont-de-Lomagne or Caussade, do not hesitate to seek advice.

Further Reading: Related Case Law and Developments

This decision is part of a consistent line. Already in 2011 (Civ. 3e, 18 May 2011, No. 10-17.690), the Court of Cassation had held that the memorandum for fixing only interrupts the limitation period if it follows a notice to quit or a reply indicating the price. More recently, a judgment of 24 January 2019 (No. 17-27.276) clarified that the absence of a price in the notice renders any request for fixing after the two-year period inadmissible. Thus, the trend is clear: the courts are strict about compliance with formalities. For the future, landlords will have to be particularly vigilant, especially since the Pinel Law (2014) strengthened the legal security of commercial leases. One piece of advice: never leave a notice without a price.

Frequently Asked Questions

Can I still fix the rent if I forgot to indicate the price in the notice to quit?

Yes, but only if you act within two years following the effective date of the new lease. After that period, the action is time-barred and you can no longer request an increase.

What is a memorandum for the fixing of the rent?

It is an act by which the landlord (or the tenant) seises the commercial rent judge to fix the amount of the rent. It must be served by a bailiff and comply with certain requirements.

What are the deadlines to act after a notice without price?

The deadline is two years from the effective date of the new lease. For example, if the renewed lease takes effect on 1 January 2025, you have until 1 January 2027 to seise the judge.

What happens if the landlord does nothing within two years?

The rent remains fixed at the amount of the old lease, subject to indexation clauses. The landlord can no longer claim an increase for the period that has passed.

Can the tenant also request the fixing of the rent?

Yes, the tenant can also seise the judge to contest an excessive rent. The same limitation rules apply.

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