REAL ESTATE LAW

Termination of the commercial lease for a breach by the tenant committed before the renewal and repeated after :

Cass. 3rd. civ. 20 May 2021, n°19-26021

 While it is now well-established case law that infringements committed by the tenant before the renewal of the commercial lease are purged at the time of its renewal, the Court of Cassation has provided some clarification by ruling on the consequences of pursuing infringements after this renewal.

Indeed, it should be remembered that after the renewal of the commercial lease, the lessor can no longer rely on the infringements committed by the lessee prior to this renewal, unless he can show that he only discovered the infringements after the renewal, but also, as the Court of Cassation decided in its decision of May 20, if he can show that the lessee's breaches continued during the new lease or that the lessee reiterated them during the lease.

In this case, faced with the tenant's breaches of contract, a commercial property owner brought an action to terminate the commercial lease. Three years later, while the termination action was still in progress, the lessee requested the renewal of the lease, but the lessor did not respond, so that at the end of a three-month period following this unanswered request, the lease was tacitly renewed.

On the strength of this renewal, the lessee took the opportunity to invoke a purge of its past breaches, thus asserting that the lessor could no longer rely on breaches committed prior to the renewal.

However, since the unlawful conduct was repeated after the lease was renewed, the magistrates of the 3rd. Civil Division did not accept this argument and expressly stated that the lessor may rely on the lessee's breaches committed prior to the renewal of the lease when these acts were subsequently repeated, including when, as in this case, the lessor's acceptance of the renewal is not express but results from his silence.