Can the landlord sue the former commercial tenant? Yes, if there is a joint and several liability clause in the commercial lease, creating a joint and several liability between the former tenant and the new tenant. There is an exception to this rule, even in the absence of a solidarity clause.
If there is no joint and several liability clause in the commercial lease
Conditions for joint and several liability of the former commercial tenant
The Court of Cassation (Cass. civ. 3, 12-07-1988, n˚ 86-15.759) has recalled that :
- the transfer of the commercial lease is in order,
- and no Solidarity Clause is stipulated in the lease transfer contract,
then: the landlord cannot claim from the assignor (who has assigned the lease) payment of rents due subsequent to the lease assignment. Clearly, in this case, the former tenant is not required to pay any debts arising after the transfer of the commercial lease.
Exception: the person assigning the lease knew that the assignment was being contested by successive lessors.
If the commercial lessee who assigns his commercial lease could not have been unaware, at the time of the assignment, that the successive lessors were contesting the legality of the lease assignment, then the former lessee must guarantee the debt even in the absence of a non-guarantee clause. (Cass. civ. 3, 24-06-1998, n˚ 96-19.042)
Drafting and understanding the content of a commercial lease is essential
The commercial lease is therefore an advantage for the lessee who assigns his commercial lease, but can be analyzed as a major loophole in the commercial lease contract. Landlords should therefore pay close attention to this point when drafting their commercial lease. In addition, the signature of a personal guarantee by the manager of the lessee company may offer an additional guarantee to the lessor.
Solidarity clause in the commercial lease
Existence of a solidarity clause between the old and new commercial lessees
Whoever transfers his commercial lease with his business will be liable for rent only until the end of a 3-year period since the law of June 20, 2014 (Pinel law).
1-month deadline for informing former tenant of first unpaid rent
Please note that the lessor must inform the former tenant of any unpaid rent within 1 month of the date on which the rent should have been paid. In practice, this rule is very restrictive for the landlord, who often gives the tenant some time to regularize the situation. The landlord must now react immediately in writing, and no longer be content with oral conversations with the tenant and guarantor.
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