Assignment of the commercial lease

Verified 16 April 2025 - Directorate of Legal and Administrative Information (Prime Minister), Ministry of Justice

When the lessee of a commercial premises (assignor) transmits his lease contract to another person (assignee), he assigns his right to the lease. This transmission may also take place at the same time as the sale of the goodwill. The lease contract often specifies the terms of the assignment (for example, the need for a notarial deed or the agreement of the lessor).

The assignment of the right to the lease or assignment of the commercial lease is a contract by which the tenant (called transferor) transfers to another person (called assignee(b) the benefit of the lease.

The tenant then gives in to a new tenant (assignee(b) the use of premises, the obligation to pay the rent and to comply with the terms of the rental. The original commercial lease remains, but with a change of tenant.

In practice, most landlords (landlords) prohibit their tenant from assigning their right to the lease by inserting a clause in the commercial lease agreement. On the other hand, the lessor cannot prohibit the lessee from assigning his commercial lease when he wishes to sell his business. Nor can it prohibit the assignment of a lease that is transferred in the course of a merger, division, partial transfer of assets or universal transfer of assets

Assignment of commercial lease only

The lessee may transfer his right to lease alone, i.e. without selling its goodwill. It must then verify that the commercial lease agreement authorizes the assignment of the sole right to the lease. It's called “no door”.

In practice, the commercial lease contract often provides for the agreement of the landlord for the assignment of the sole right to the lease.

The tenant must also inquire at the city hall to know if the lease is located in an area called perimeter for safeguarding local trade and crafts. In such cases, the municipality may use its commercial pre-emption right, which means that it has a priority to acquire the right to the lease.

When the lease is transferred, the new tenant (called assignee) takes the place of the original tenant (called transferor) for the lease term remaining.

Assignment of commercial lease on sale of goodwill

In case of sale of the goodwill, the right to lease is obligatorily included.

The purchaser of a goodwill buys all elements of this fund (notably the brand, the facilities, the clientele, the right to lease). The customer base is the most important element: if there is no customer base, the goodwill cannot exist. In this case, the sole assignment of the right to the lease is possible.

The lessor can't object the sale of the lease on the sale of the goodwill. Indeed, the clauses contained in the lease contract which forbid the assignment of the lease upon the transfer of the goodwill is not valid.

However, the assignment may be subject to certain conditions by the lease agreement. For example, a so-called approval clause may provide that the lease assignment must be authorized by the lessor. In addition, a clause allowing the lease to be transferred only in the event of the total sale of the goodwill is possible.

Please note

When the goodwill is located in a specific area called perimeter for safeguarding local trade and crafts, the town hall may exercise its commercial pre-emption right : this means that it has a priority to acquire the right to the lease.

Transfer of the commercial lease in the event of a merger, division, transfer of part of the assets or universal transfer of assets

In this case, a business, a lessee of a commercial lease, is absorbed in the context of a melting , a split or is the subject of partial contribution of assets or a universal transfer of assets. The acquiring or receiving business of the contribution immediately becomes the owner of the right to the lease and has no formalities to fulfill.

The lessor may not object to this transfer.

Any clause in the commercial lease that prohibits the assignment of the commercial lease in these situations is invalid.

A tenant who has applied for his pension rights or who is entitled to receive an invalidity pension has the possibility to assign his lease for a different activity of that normally exercised. We talk about “ de-specialization disposal ”.

The lessor may not prohibit such transfer.

The tenant uses a specific business change procedure (called de-specialization (b) in the event of the lease being transferred at the time of retirement or the payment of an invalidity pension.

Warning  

Before any assignment of the commercial lease, the lessee (assignor) must check whether the premises are located in an area covered by the commercial pre-emption right of the municipality. For more information, see the dedicated card.

Conditions for entitlement to the right of ‘de-specialization transfer’

In order to benefit from this right of “de-specialization transfer”, the tenant must fulfill the following 2 conditions: 

  • Be a natural person (trader, craftsman) or a sole partner of a EURL: titleContent or a majority manager of SARL: titleContent  for at least 2 years
  • Have previously applied for pension rights or an invalidity pension.

Please note

In practice, the lessee must have applied to his pension fund for the payment of pension rights.

Implementation of the right of ‘de-specialization transfer’

Once the conditions have been met, the tenant notifies by act of commissioner of justice to lessor's intention to assign the lease. It shall also specify the new activity envisaged and the price proposed.

The lessee is obliged to inform the lessor of his intention to assign the lease, but this is not an application for permission to assign the lease.

The tenant must also inform creditors registered on the goodwill, i.e. creditors who have applied for the registration of a guarantee on the goodwill in order to protect themselves against the defaults of the lessee (privilege or pledge on goodwill of the tenant). These creditors may object to the assignment of the lease if they consider that their security is not sufficient.

Please note

The new activity must be compatible with the destination, characteristics and location of the building. For example, the creation of a commercial fund for automatic laundry that requires the installation of multiple noise-generating machines is incompatible with a residential building.

Within 2 months of the notification of the tenant, the lessor has the following options:

  • Accept the change of business and agree to the assignment of the lease
  • Exercise the statutory priority of redemption of the lease entitlement
  • Challenge the new activities and bring the matter before the court
Who shall I contact

A lessor who does not propose to buy back the right to the lease within 2 months (from the notification) is considered to have accepted the assignment.

The commercial lease contract may provide that the lessor has the right to refuse the assignment of the commercial lease or that its authorization is necessary. Other clauses may be included in the lease agreement to specify the terms of assignment.

Clause prohibiting the assignment of the lease alone

The parties may include in the commercial lease agreement a clause which prohibits any assignment only on the right to lease.

On the other hand, the contract may not prohibit the tenant from assigning the commercial lease in connection with the sale of the goodwill. The lessee must be able to transfer the lease to the purchaser of his land.

Clause requiring owner's authorization or approval clause

An approval clause requires the tenant to obtain the landlord's agreement before any transfer.

This clause allows the lessor to accept or reject the prospective lessee.

The lease generally requires that the lessor's authorization be in writing.

Clause providing for an appeal by the lessor to participate in the deed of assignment

The purpose of this clause is to notify the lessor of the sale of the commercial lease.

In this case, the transfer shall take place in the presence of the lessor. He is informed of the identity of the buyer but does not have to give his authorization.

This clause allows the tenant (transferor) of the commercial lease to commit in solidarity with the new tenant of the lease (called assignee(b) the payment of rents and the execution of the lease.

Please note

The joint and several guarantee clause does not apply if the assigning tenant is backup procedure, of judicial redress or judicial liquidation.

In the event of non-payment of rent or charges by the new tenant, the landlord can invoke the joint and several guarantee clause and sue the former tenant (transferor) respecting the following 2 conditions:

  • Inform the transferor failure to pay rent within one month from the date on which the sums should have been paid. There is no specific formality in the act to provide this information, but a registered letter with AR will provide proof of this information.
  • Claim rent to the transferor of the lease within 3 years from the time the lease is transferred.

This joint and several guarantee clause ceases at the end of the lease. It has no effect in the event of renewal from the lease.

However, in the case of tacit extension However, no new contract is formed: the solidarity clause then continues to apply until the lease expires.

Example :

The 1er september 2024, a tenant transfers his commercial lease. The new tenant (assignee) does not pay rent until September 15, 2024.

The landlord must then inform the transferor (former tenant) of the default before October 15, 2024.

The joint and several guarantee may be applied by requesting payment of the rents from the transferor (who is the former tenant) up to 1er September 2027. After that date, he will no longer be able to use it.

The sale of the commercial lease requires the following steps:

Check whether the lease is located in an area where the municipality can exercise its right of first refusal

Where the commercial lease is situated in an area known as the ‘local trade and craft safeguard area’, the transferor of the commercial lease must fill in a specific form and send it to the mayor of the municipality concerned. The municipality may use its commercial pre-emption right, which means that it has a priority to acquire the right to the lease.

FYI  

For more information on the right of first refusal, see the dedicated card.

Write a commercial lease assignment contract

The lease assignment must be in the form of a written contract. This contract can be drafted by the parties themselves (under private name), or by a notary (notarial act).

The lease assignment may also take the form of a agreeable to commercial lease.

Establish a stocktaking

An inventory must be drawn up by the lessor and the outgoing tenant or by a third party authorized by them (for example, a real estate agency).

The state of play must be kept by each of the parties.

Inform the lessor and the creditors registered in the goodwill

The assignment of the commercial lease shall be notified by act of commissioner of justice to the following persons:

  • To the landlord of the commercial premises
  • Where the assignment of the lease also involves the assignment of the goodwill: creditors registered with the goodwill.

The deed of assignment of the lease must mention the identity and contact details of the assignee (i.e. the buyer) and the date of the assignment. This makes it possible to determine from when the purchaser is liable for payment of the rent.

Please note

When the assignment of the commercial lease is established by notarial act, it is not necessary to send the assignment of lease by act of commissioner of justice.

Register and pay registration fees

The act of assignment of the right to the lease must be registered by the parties (or by one of them) with the tax department of the registration of the location of the premises.

Who shall I contact

The document shall be registered within 1 month of its signature.

Please note

Where the assignment of the right to the lease is established by notarial deed, the notary shall register the document at the place where the notarized study is carried out.

Registration fees are normally paid by the purchaser (assignee). The assignment may, however, provide that they will be borne by the seller (assignor).

They are calculated on the transfer price as follows:

  • 0% up to €23,000
  • 3% between €23,001 to €200,000
  • And 5% beyond €200,000

A fixed minimum duty of €25 is perceived.

Where these formalities are not complied with, the assignment of the commercial lease is not valid.