Rép. min. n° 9737 : JOAN 3 nov. 2018, p. 10212
Does the operator of a student or hotel residence or an accommodation facility for dependent elderly people benefit from a right of pre-emption in the event of sale by the owner of the premises operated?
If so, can the lessee continue to benefit from the right of first refusal if he or she remains in the premises after the effective date of a notice given by the lessor?
In response to this parliamentary question, the French Minister for Territorial Cohesion gave a qualified answer:
“[…] The lease contract between the owner of a property and the operator of a student or hotel residence or an accommodation facility for dependent senior citizens is commercial in nature if the lessee/operator does not simply sublet the residential units that make up the residence, but also provides the sublessees with at least three of the four services listed in article 261 D of the French General Tax Code. Because of its commercial nature, the lease agreement falls within the scope of article L. 145-46-1 of the French Commercial Code.
In application of this text, the lessee who holds the lease and operates the residence benefits from a public right of pre-emption when the owner-lessor decides to sell the premises.
In addition, when the lessor has validly issued a notice of termination in accordance with article L. 145-9 of the French Commercial Code, the lease ceases to have effect at the end of the six-month period stipulated by law, and the lessee no longer benefits from any rights under the commercial lease statute.
If the tenant remains on the premises beyond this period, he may no longer avail himself of the rights arising from the now terminated lease. Once the six-month period has expired, he can no longer claim to benefit from the right of pre-emption. The same applies if, in application of article L. 145-28 of the French Commercial Code, the evicted tenant remains on the leased premises pending payment of the eviction indemnity by the lessor.
Until payment is made, both lessor and lessee are bound by the terms and conditions of the expired lease.
However, if the right of pre-emption has not been provided for contractually, the evicted tenant cannot benefit from the right of pre-emption codified in article L. 145-46-1 of the French Commercial Code”.
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