What happens to the commercial lease when the tenant is in collective proceedings?

Verified 28 September 2022 - Directorate for Legal and Administrative Information (Prime Minister)

At the opening of a collective proceedingsHowever, the commercial lease normally continues automatically. However, after reviewing the tenant's situation, the administrator or liquidator makes a decision: he can decide to continue the lease, to terminate it or to transfer it. In some cases, the lessor may decide to terminate the commercial lease.

The procedures for backup, of judicial redress or judicial liquidation of the tenant does not result in the automatic termination of the commercial lease. Moreover, it is prohibited to provide in the lease contract that the opening of collective proceedings by the tenant will lead to the termination of the lease.

The decision to continue the lease must then be made by one of the following:

This decision is binding on the lessor. It cannot object even if the tenant has arrears of rent at the date of initiation of the proceedings.

Where the company does not have sufficient funds to pay the rent, the decision to terminate the commercial lease may be made by one of the following:

The lessor may also decide to terminate the lease in certain cases. The situation depends on the collective procedure opened.

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Safeguarding and judicial redress

At the initiative of the court administrator

Where the company does not have the necessary funds to pay the rent, the court administrator must terminate the lease. The administrator may also decide to terminate the lease even if the rents can be paid.

The commercial lease is terminated on the day the lessor is informed of the administrator's decision not to continue the commercial lease.

Where there is no court administrator, the lessee may also request the termination of the lease on the advice of the court judicial representative.

At the initiative of the lessor

After the commencement of the collective proceedings, the lessor may demand the termination of the lease when the tenant does not pay his rent and expenses.

To do so, he must make a request to the court of law.

He must wait 3 months after the opening of the collective proceedings before requesting this termination.

Who shall I contact

Warning  

To obtain payment of unpaid rents before the opening of the collective proceedings, the lessor shall a declaration of claims  within 2 months from the publication of the opening judgment in the Bodacc: titleContent.

Judicial winding-up

At the initiative of the liquidator

After the opening of the investigation procedure judicial liquidation, the liquidator may at any time, decide to terminate the commercial lease.

The lease is then terminated on the day the lessor is informed of the liquidator's decision not to continue the commercial lease.

At the initiative of the lessor

After the commencement of the collective proceedings, the lessor may demand the termination of the lease when the tenant does not pay his rent and expenses.

To do so, he must make a request to the court of law.

He must wait 3 months after the opening of the collective proceedings before requesting this termination.

Who shall I contact

The lessor may also request the termination of the lease, for reasons prior to the opening judgment, (such as a failure to maintain the leased premises). He must take legal action within 3 months the publication of the judgment of judicial liquidation.

Warning  

for unpaid rents before the opening of the collective proceedings, the lessor must make a declaration of claims  within 2 months from the publication of the opening judgment in the Bodacc: titleContent.

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Safeguarding or judicial redress

The commercial lease may be assigned as part of the total or partial assignment of the tenant's company.

In this case, acceptance by the lessor (i.e. the lessor's approval) of the purchaser of the goodwill is not necessary. The commercial lease cannot provide that the lessor's agreement on the new tenant is necessary.

Judicial winding-up

The winding-up proceedings may involve the total or partial assignment company. The commercial lease can then be included in this assignment.

The liquidator may also assign the lease of in isolation, independently of the company.

In this case, the approval (i.e. agreement) of the lessor is required.

The municipality's right of pre-emption must also be respected. Before selling a goodwill or assigning a commercial lease located in a backup perimeter of commerce, the seller must make a declaration to the municipality concerned. The latter then has the opportunity to buy the business or to take over the commercial lease in priority to resell it to a trader or craftsman.

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