The Court of Cassation has just rendered an important decision about the commissions of real estate agents when the tenant of a commercial lease asserts his right of pre-emption.
Indeed, in a decision of June 28, 2018 (No. 17-14605), the third Civil Chamber has laid a stone more in the protection of the tenant against practices of some real estate agents.
As a reminder, Article L.145-46-1 of the French Commercial Code provides that the lessee who holds a commercial lease has a pre-emption right when the owner sells the property.
For many years, the Court of Cassation seemed to assert that the owners could not bear the agency commission in addition to the selling price to the lessee.
According to a particular wording, the Court of Cassation stated that the tenant holding the right of first refusal accepting the offer of sale of the property can not be charged a commission increasing the price of the property (in particular Court of Cassation 3rd Civil Chamber 03/07 / 2013).
These decisions were logical because no work was actually performed by the real estate agent and therefore he was not entitled to remuneration …
Today the Court of Cassation reaffirms the principle and leaves no doubt: the lessee does not have to pay agency fees:
First, the Court affirms that the provisions of Article L.145-46-1 are of public order.
Then it states that the lessor who plans to sell his business premises must first notify the lessee of an offer to sell that can not include trading fees.
Finally, the Court goes further because in this case, it also recognized that the tenant who accepts the sale price has actually asserted his right of pre-emption and can obtain enforcement of the sale.
Whether you own or rent this important decision of consequence should invite you to the utmost precaution when drafting the offer or when accepted by the lessee.