Notice of termination must be delivered by a bailiff
Notice of termination of a commercial lease must be given by a bailiff, now known as a “ commissaire de justice”. A January 24, 2024 ruling by the Paris judicial court (18th chamber, 2nd section) illustrates this point once again.
The absence of prejudice on the part of the lessee does not render the notice valid
The recipient of the notice, in this case the lessee, does not need to prove the existence of any prejudice. Failure to comply with legal formalities is sufficient to render the notice null and void.
The response to the notice does not cover the irregularity of the notice
In this case, the acknowledgement of receipt of the notice given by registered letter is not sufficient to give it the legal effect of a valid notice.
A two-year period in which to contest the notice
As a reminder, the lessee has two years in which to contest the validity of the notice:
“On the validity of the notice issued by Mr [O] [H] [Z] and Mrs [F] [K] by registered letter with acknowledgement of receipt dated February 10, 2020
Under the terms of article L. 145-9 paragraph 5 of the French Commercial Code, the notice of termination issued by the lessor must be given by extrajudicial deed. It must, under penalty of nullity, specify the reasons for which it is given and indicate that the tenant who intends either to contest the notice or request payment of an eviction indemnity, must bring the matter before the court before the expiry of a two-year period from the date for which the notice was given”.
The notice must be given by extrajudicial deed, and failure to comply with this imperative formality is sanctioned by the nullity of the notice at the request of the lessee, who is not required to prove any prejudice in this respect.
In the case in point, although they wrote in their registered letter dated February 10, 2020: “We are giving you notice of termination of the commercial premises by bailiff’s deed dated 10/02/2020, with refusal to renew the commercial lease with effect from 08/31/2020”, Mr [O] [H] [Z] and Mrs [F] [K], who are in default in the present proceedings, do not prove that they gave notice of termination by extrajudicial deed, the existence of which is disputed by OHLE. In his reply dated March 4, 2020, the lessee wrote: “We take note of your decision, but have serious doubts about the legal validity of the form of your notice”.
OHLE having contested the validity of this notice within the two-year period following its delivery by a writ of summons delivered on February 4, 2022, it should be noted that the notice given by letter by the lessors does not meet the imperative formal conditions set out in article L. 145-9 of the French Commercial Code, and must therefore be declared null and void. ”
Tribunal judiciaire, Paris, 18th chamber, 2nd section, January 24 2024 – n° 22/01721
Related content:
What happens if the tenant fails to return the keys.
How to terminate my leaseback ?
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