Derorgatory lease (« bail dérogatoire ») pursuant to French law
A derogatory lease (“bail dérogatoire”) is a lease which, by agreement, has not been subject to the status of a commercial lease, even though the conditions could have been met.
The derogatory commercial lease may derogate from the mandatory status of the commercial lease if the following two conditions are met:
- the lease must be concluded when the lessee enters the premises,
- and the duration of the lease (or successive leases) must not exceed three years. Seasonal leases are excluded from the scope of derogatory leases.
In case of difficulty, the judge must seek the common intention of the parties.
The lease is not subject to the status of commercial leases and the lessee does not benefit from the prerogatives inherent to this status. T
he applicable law is the common law of the lease. An inventory of fixtures at the beginning and end of the lease must be drawn up and attached to the lease contract.
If the lessee remains in possession of the lease beyond the end of the derogatory lease and if the lessor does not object within one month, the derogatory lease is automatically converted into a statutory lease.
The statutory lease is for a period of nine years and is subject to the same conditions as the previous one, but also to all the provisions of the commercial lease statute.
Texts of French law governing derogatory leases (“bail dérogatoire”):
- C. com. L. 145-4, L. 145-5
Main decisions of French courts on derogatory leases (« bail dérogatoire”):
- Aix-en-Provence, June 20, 2019, No. 16/17059
- Civ. 3rd, Oct. 25, 2018, no. 17-26.126
- Civ. 3rd, Feb. 1, 2018, no. 16-23.122
- Civ. 3rd, June 8, 2017, No. 16-24.045
- Civ. 3rd, May 11, 2017, no. 16-13.435
- Civ. 3rd, March 2, 2017, No. 15-28.068
- Civ. 3rd, Jul. 7, 2016, no. 15-19.485
- Civ. 3rd, Oct. 1, 2014, no. 13-16.806
- Civ. 3e, Feb. 2, 2005, n° 03-19.541