The absence of the lessor’s consent to the assignment is grounds for termination of the lease.
A lessee who assigns his commercial lease without the lessor’s authorization, even though this is required by the commercial lease, is liable to have his commercial lease terminated by the court. Such a breach is sufficiently serious to justify termination, even without any particular prejudice to the lessor. This is the case, for example, of a clause stipulating that “the transfer may only take place in the presence of the lessor, or with him duly summoned”.
The need for judicial authorization in the event of disagreement on the part of the lessor
If the lessor disagrees, the lessee must obtain judicial authorization.
Silence and lack of opposition on the part of an uninformed landlord
In the event of silence on the part of the owners, and in the absence of any express opposition, judges consider that failure to comply with the clause in the lease requiring the lessor’s written consent to any transfer is not serious enough to justify termination. (Cass. civ. 3, 20-10-1971, n° 70-12.995, published, n° 504)
Knowledge of the assignment and collection of rent is not always sufficient, depending on the lease.
If the commercial lease specifies that no tolerance on the part of the lessor could create rights in favor of the lessee, the lessor, having knowledge of the assignment and of the payment of rent by the new lessee, does not accept the assignment by regularizing a posteriori his absence from the deed of assignment of the commercial lease.
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