In the case of a sale of a commercial premises, is the tenant a priority to buy it back?

Verified 26 April 2024 - Directorate for Legal and Administrative Information (Prime Minister), Ministry of Economy

The owner of a commercial or craft premises must inform the tenant when he decides to sell his premises. The tenant then benefits from a preferential right (also called right of first refusal) which allows it to be given priority to buy the premises.

The tenant of a premises for commercial or craft use shall enjoy a right of preference in the event of the sale of this premises. This right cannot be set aside in the commercial lease.

The tenant is also given priority in case of sale of a mixed room, i.e. premises for both commercial and residential use.

When a commercial lease is for office use, the tenant has priority only if the offices are rented as part of a commercial activity. This is the case, for example, of premises rented to a commercial business carrying out the liberal activity of accountancy, which carries out commercial transactions.

The tenant of a commercial premises is not a priority in case of sale of a parking space.

FYI  

The tenant does not have a right of preference in case of sale of a industrial premises (ex: warehouse).

A room is for industrial use if it fulfills both of the following conditions:

  • Assignment to the exercise of an activity which directly contributes to the manufacture or processing of movable tangible property
  • Use of technical installations, equipment and tools.

The tenant's right of preference is excluded in the following cases:

  • Single sale concerning several premises of a commercial complex, i.e. establishment on the same site of several shops having a common structure or management (e.g. a hypermarket and a contiguous shop operated by the same business)
  • Single sale involving several commercial premises rented to different tenants (this is referred to as separate commercial premises). This is the operation whereby at least two lots for commercial or artisanal use are sold. For example, operating a coffee shop, bar, restaurant in a first lot and operating a delicatessen, triple and edible shop in a second lot.
  • Sale of a commercial premises to the co-owner of a commercial complex
  • Aggregate sale of a building with commercial premises
  • Sale of premises to spouse or partner ascendant or to a descendant of the lessor or his or her spouse.

FYI  

Where the sale of the immovable is authorized by the judge-commissioner in the context of a judicial liquidation, the tenant cannot exercise his right of preference.

The landlord must inform the tenant of his plan to sell his commercial premises. The tenant then has one month to respond and buy if he wishes.

Information of the tenant by the owner

The owner who wishes to sell a commercial premises must first notify his tenant of his project.

It informs the tenant of its proposed sale by one of the following means:

  • Either by registered letter with notice of receipt
  • Either by hand-delivered letter against receipt or signature

This letter from the owner is considered a offer to sell made to the tenant.

It must specify the conditions of the sale of the premises, i.e. the price (or price payment terms) and any charges. It must also mention the paragraphs of Article L 145-46 of the Commercial Code.

The owner must reproduce in the letter the following article of the Commercial Code:

‘Article L145-46 of the Commercial Code:

When the owner of a premises for commercial or craft use intends to sell it, he informs the tenant by registered letter with request of notice of receipt, or hand delivery against receipt or receipt. Such notification must, on pain of nullity, indicate the price and the conditions of the proposed sale. It is equivalent to an offer to sell to the tenant. The latter shall have one month from receipt of the offer to give its opinion. In case of acceptance, the tenant has, from the date of sending his reply to the lessor, a period of two months for the realization of the sale. If, in his reply, he notifies his intention to take out a loan, the tenant's acceptance of the offer to sell is conditional on obtaining the loan and the time limit for making the sale is extended to four months.

If, on expiry of that period, the sale has not been made, acceptance of the offer for sale shall be void.

Where the owner decides to sell on terms or at a price which is more advantageous to the buyer, the notary must, where the lessor has not previously done so, notify the tenant in the form provided for in the first subparagraph, on pain of nullity of the sale, those terms and price. This notification constitutes an offer to sell to the tenant. This offer of sale is valid for a period of one month from its receipt. The tender which has not been accepted within this period shall lapse.

The tenant who accepts the offer thus notified has, from the date of dispatch of his reply to the lessor or notary, a period of two months for the realization of the act of sale. If, in his reply, he notifies his intention to take out a loan, the tenant's acceptance of the offer to sell is conditional on obtaining the loan and the time limit for making the sale is extended to four months. If, on expiry of that period, the sale has not been made, acceptance of the offer to sell shall be void.'

An owner who sells the commercial premises without first offering the premises to the tenant runs the risk of canceling the sale. Indeed, the tenant who has not been informed can apply to the court for the cancelation of the sale.

Who shall I contact

FYI  

The offer of sale presented to the tenant does not include the fees of the real estate agency.

Tenant Response

Upon receipt of the information by the owner, the tenant may acquire the property if he is interested in the premises. It has1 month to accept or reject the offer to sell.

FYI  

The law does not provide for no particular shape for the tenant's response. It is advisable to reply by registered letter with AR or by hand delivered letter.

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Acceptance of the offer of sale by the tenant

As from the sending of his reply to the landlord, the tenant has a period of 2 months to complete the sale (i.e. to sign the deed before the notary). He cannot negotiate the price and terms offered in the offer to sell.

If the tenant uses a loan, the time for the sale is 4 months.

If the sale is not concluded within this period, the owner is released vis-à-vis the tenant and can accept other offers.

Refusal of the offer of sale by the tenant or lack of response from the tenant

If the tenant refuses the offer to sell the premises, the owner is free to sell to another person.

Lack of response of the tenant within one month is equivalent to one refusal the offer to sell.

Warning  

If the landlord decides to lower his sale price to sell the premises to someone other than the tenant, he must then issue a new information to the tenant. If he does not do so, it is the notary who, before the sale is signed, sends the offer of sale with the reduced price to the tenant. This shipment is made by registered letter with AR or by hand delivery.