The status of commercial leases is a set of rules that applies automatically to the commercial lease agreement.

It allows the tenant to benefit from various advantages: the right to lease renewal after 9 years, the payment of a eviction allowance in the case of non-renewal or rent review every 3 years or based on sliding scale clause.

For the commercial lease status to apply, the 4 following conditions must be brought together:

• Existence of a lease
• Contract concerning a building or premises for commercial, craft or industrial use
• Operating a business in the premises
• Registration of the lessee of the lease at the SCR: titleContent or at RNE: titleContent

The status of commercial leases also applies under certain conditions to educational institutions, municipal services operated by direct labor, public companies and Epic: titleContent and certain cooperative businesses.

Lease Agreement

The contract provides for an obligation on the lessor to make available to the lessee premises for commercial use. In return, the tenant pays rent.

It's usually a commercial lease.

It is possible to carry on a commercial or craft activity in a contract other than the commercial lease. It can be a short-term lease or a derogatory lease (or short-term lease).

Commercial building or premises

The lease must be for a "building" or "premises", i.e. a construction of a ‘stable and permanent’ nature. The tenant must have the assurance that he can remain in possession of the leased premises throughout the duration of the contract, without the lessor being able to move it at his discretion.

The bare land are not affected by the status of commercial leases. However, in the case of construction on this bare ground with the written consent of the lessor (e.g. tennis court with changing rooms), such construction shall enjoy the status of commercial leases.

The shops inside the shopping centers and supermarkets have the status of commercial leases. On the other hand, the locations (for example a stand) must comply with the following 2 conditions:

• The booth or allocated space is considered stable and permanent.
• The operator has its own clientele.

In the accessory rooms (for example: a deposit or warehouse) can be granted the status of commercial leases if they meet the following conditions:

• The premises are essential to the exploitation of the goodwill
• The premises belong to the lessor of the commercial premises

The conclusion of a commercial lease is possible only if the local is for commercial use, i.e. used in the pursuit of a commercial, craft or industrial activity:

• Commercial activity is the performance of acts of commerce, such as buying goods for resale. The sale of clothing, books or food is a commercial activity.
• Craft activities are independent professional activities in the production, processing, repair or provision of services. The trades of hairdresser, chocolate maker or butcher are crafts.
• Industrial activity is defined here as an activity of processing raw materials (for example, wood, paper, electronics).

Operation of a goodwill

The status of commercial leases applies if a goodwill is operating in the premises. The fund must be owned by a merchant or a company registered in SCR: titleContent or at RNE: titleContent.

The goodwill consists of bothtangible items (commercial furniture, equipment and tools used to operate the land) and of intangible items (customers, trade names, brands, leasing rights, trademarks, patents for inventions, licenses).

The existence of a clientele fund-specific is the fundamental element. The clientele is all the people who come to buy from a trader or craftsman because of his ability, his know-how, the products or goods he sells.

However, the tenant may choose to operate his business in management leasing. In this case, the lessee of the lease retains the right to the renewal of the commercial lease and the lessee-manager does not benefit from it.

The land must be used effectively, that is to say in a real, regular manner and in accordance with the purpose of the lease.

To benefit from the right to renewal of the commercial lease, the goodwill must have been effectively exploited during the 3 years preceding the date of expiry of the lease or of its extension.

Registration of the tenant with the RCS or the RNE

The tenant must be registered to SCR: titleContent or at RNE: titleContent. However, this condition is necessary to obtain the renewal of the lease at the end of the term.

Registration in the Commercial and business Register or in the NNE shall be made by all persons exercising commercial activity.

Enrollment in the RNE, trades and crafts sector is compulsory for natural persons or businesses who exercise a craft industry and which employ no more than 10 employees.

If more than one tenant is operating the business, each tenant must be registered with the CHN or NCBR.

There is no mandatory form for entering into a commercial lease.

The commercial lease may be a verbal lease, a written lease (not registered with a notary) or a notarized lease.

The verbal lease, i.e. with oral consent, is possible. However, it does not make it possible to bring to the knowledge of the tenant the environmental information or the amount of the respective charges of the lessor and the tenant.

In practice, the commercial lease is therefore most often established in writing in order to prove the existence of the contract. The written form makes it possible to clearly define the obligations of each of the parties and to define the burdens that the lessor and the tenant must bear. It also makes it possible to inform the tenant of environmental obligations.

The written lease shall be made out either on a medium paper or on a support electronics.

The commercial lease is must be written by a notary (we're talking aboutauthentic instrument) in the following 2 cases:

• When the lease term exceeds 12 years.
• When the lease concerns a beverage outlet, that is to say a bar, a restaurant, a supermarket, a grocery store or a wine shop.

Prior to the conclusion of the lease, the lessor has an obligation to inform the lessee of the risk status of the area where the premises are located. In the real estate announcement of the rental of the property, the lessor indicates to the tenant that he can have access to the risk status of the area concerned on a specific site.

The commercial lease contains mandatory statements and clauses that can be negotiated between the lessor and the lessee.

Mandatory particulars

When the commercial lease contract is written, it must contain certain elements: this is called the mandatory provisions the status of commercial leases.

These are the following:

• Identity and capacity lessor and lessee: if the lessor is a commercial business, it must be verified that the manager or manager has the capacity to sign the lease
• Designation of premises: premises accurately described with exact address. The conditions of access to the premises may be specified (for the delivery of goods). Emergency exits, outbuildings and ancillary premises (attics, cellars and garages) must be mentioned and described precisely.
• Lease Duration
• Type of business or activities that the tenant is authorized to carry on in the premises: referred to as a "destination clause". This destination must be respected throughout the lease. If the tenant wishes to change activity, he must use a particular procedure called de-specialization.
• Amount of rent and date of payment of rent. The method of rent review must also be specified: either three-year or based on a indexing clause
• If a security deposit is provided for, its amount and the date of its collection must be specified
• Distribution of charges, taxes, taxes between tenant and landlord
• Conditions for to give leave and terminate the commercial lease

Clauses or elements negotiated between the lessor and the tenant

The lessor and the lessee can agree on certain elements. These include:

• Subleasing: the lessor may authorize the subleasing under certain conditions.
• Assignment of the lease: the lessor may prohibit the lessee from assigning his or her lease alone. However, it cannot prohibit this assignment when the tenant sells his business.
• Exclusivity clause: it prohibits the lessor from renting other premises, in the same building or commercial complex, to companies engaged in an activity competing with that of the lessee.

The lessor must attach the following documents to the commercial lease agreement:

• State of play
• Inventory of charges, taxes and fees provided by the owner related to the lease concluded or renewed since November 5, 2014
• List of work carried out over the past 3 years and those planned for the next 3 years
• Energy Performance Diagnostic (EDP)
• Natural, Mining and Technological Hazard Status Diagnosis (ERNMT) also known as Hazard and Pollution Status Diagnosis (ERP). This document must be less than 6 months old
• Reporting and monitoring of energy consumption of buildings dedicated to tertiary activities more than 1 000 m² 
• Environmental Annex for areas greater than or equal to 2 000 m² 

State of play

An inventory must be drawn up by the lessor and the tenant when the tenant takes possession of the premises. It may also be drawn up by a third party authorized by one or both parties.

It must accurately present the condition of each part and the equipment contained in the commercial premises.

If the parties do not agree, a commissioner of justice (ex bailiff) can establish it. In this case, the lessor and the lessee each pay half of the costs of establishing the inventory.

The lease contract is usually signed before entry to the premises. The inventory of the premises must be established when entering the premises. It is therefore attached to the lease contract that has been signed.

One exit inventory shall be drawn up when the premises are returned, when the right to commercial lease, assignment or free transfer of the goodwill as part of a donation or an estate.

Where an inventory has not been completed upon entry into the premises, the premises are considered to be in good condition for rental repairs. However, the lessor must prove that he has done everything possible to carry out an inventory.

Inventory of charges, taxes and charges provided by the owner

An inventory of charges, taxes, fees and charges must be made. The law does not specify the location of this inventory. It may therefore be included in the lease contract or be the subject of a separate annex.

For more information, you can consult the fact sheet on burden sharing between lessor and lessee.

List of completed and upcoming work

The lessor must to attach to the contract lease the following:

• Presentation of the work it envisages to carry out over the next 3 years, with a provisional budget
• Summary of the work carried out by the Center over the previous 3 years, including amounts

The landlord must also inform the tenant every 3 years on these elements.

Energy Performance Diagnostic (EDP)

Energy Performance Diagnosis (EPD) should be appended to the commercial lease agreement.

He includes the elements following:

• Amount of energy actually consumed or estimated
• Greenhouse gas emissions for a standardized use of the building or part of a building
• Information on ventilation or ventilation conditions.

Some premises are not affected by the DPE. The premises are as follows:

• Some independent buildings with a surface area of less than 50 m²
• Premises for artisanal or industrial use, where the heating, cooling or hot water production system for human use consumes a small amount of energy

For more information, please see our factsheet on the energy performance diagnostics (EDP).

Natural, Mining and Technological Hazard Status Diagnosis (ERNMT) or Hazard and Pollution Status Diagnosis (ERP)

Diagnosis of ERNMT or Risk and Pollution Status Diagnosis (ERP) is not mandatory for all premises. It concerns only premises located in a specific area. This is one of the following areas:

• Area covered by a technology risk prevention plan
• Area covered by a foreseeable natural risk prevention plan
• Seismicity zone
• Area with significant radon potential (radioactive gas)
• The area exposed to the retreat of the coastline
• Area covered by brush clearing and maintenance obligations.

Where the premises are located in a specific area, this document must be attached to the commercial lease and must be less than 6 months old.

For more details, see the fact sheet on risk status (real estate diagnostic).

Reporting and monitoring of energy consumption of buildings dedicated to tertiary activities and of more than 1 000 m2

Owners of buildings or parts of buildings exceeding 1 000 m² and dedicated to tertiary activities must transmit their energy consumption annually via the OPERAT platform.

Reporting and monitoring of energy consumption in tertiary sector buildings (OPERAT Platform)

This platform allows to generate an annual digital attestation.

In the case of the lease of a commercial premises, the owner must attach the latest annual digital certificate to the lease agreement for information purposes.

To learn more, you can read our factsheet on the reduction of energy consumption in tertiary buildings.

Environmental annex (or green annex) for a room of more than 2 000 m2

A commercial lease that covers a premises of more than 2,000 m² for use in offices or shops must include an environmental annex. It must be annexed to the lease contract by the lessor.

The Environmental Annex (referred to as green annex) contains the following information:

• Description of the energy characteristics of the equipment and systems of the building and the rented premises (waste treatment, heating, cooling, ventilation, lighting...)
• Annual water and energy consumption of such equipment and systems
• Annual amount of waste generated

This Annex may include obligations to limit the energy consumption of the premises.

Several objectives can be included in the Green Annex. For example: maintenance work, water consumption reduction plan, reduction of greenhouse gas emissions.