Art. L. 622-13
General contracts-in-progress regime — applies when the landlord (not the tenant) is in insolvency proceedings
2 months
Deadline to declare the eviction indemnity claim after BODACC publication (4 months for foreign creditors)
Inopposable
Sanction for non-declaration since 2005 — claim survives but cannot be asserted against the proceedings
Voluntary only
Tenant's pre-emption right (Art. L. 145-46-1) does not apply to forced sales in insolvency proceedings

The Framework: General Contracts-in-Progress Regime Applies

The specific commercial lease insolvency rules in Arts. L. 622-14 and L. 641-12 of the Code de commerce expressly apply only where the tenant is the debtor in collective proceedings. When the landlord enters collective proceedings, those specific provisions do not apply. Instead, the lease is treated as a contract in progress under the general regime of Art. L. 622-13 (safeguard/reorganisation) or Art. L. 641-11-1 (liquidation). The administrator or liquidator therefore has the option to continue or not continue the lease, and the tenant has the right to demand that the insolvency officer take a position.

The Tenant's Eviction Indemnity Claim

Declaring and Protecting the Eviction Indemnity Claim
1
Declaring a Conditional Claim
Where the landlord has served a notice to quit with refusal of renewal before entering insolvency, the tenant's eviction indemnity claim exists but is conditional: the landlord still holds the right of repentance under Art. L. 145-58, allowing withdrawal of the refusal within 15 days of a final judgment fixing the indemnity. Despite this conditionality, the tenant must declare the claim to the insolvency estate within two months of BODACC publication (extended to four months for foreign creditors). If the amount has not been fixed, declare a provisional estimated amount — the declared amount can only be revised downward on final determination, not upward.
2
Consequences of Inopposability
Since the 2005 reform, the sanction for non-declaration is inopposabilité — the claim cannot be asserted against the proceedings — not extinction of the claim. This matters critically for the tenant's right to remain in the premises. Before 2005, extinction was held to destroy the right to stay (Cass. 3e civ., 28 June 2000) since that right is conditional on entitlement to an eviction indemnity (Art. L. 145-28). With inopposability rather than extinction as the sanction, the claim survives outside the proceedings and the tenant should retain the right to stay until actual payment.
3
Security Deposit
The tenant's claim for restitution of the security deposit arises from the lease contract itself, not from the end of the lease. It is therefore treated as a pre-opening claim and must be declared to the insolvency estate. Failure to declare means the tenant cannot recover the deposit in any distribution under a plan or in liquidation proceedings (Cass. com., 5 June 2007; Cass. com., 10 January 2012; Cass. com., 18 May 2016).
⚠️
Warning — Declare Even if the Amount Is Uncertain

The tenant must declare a provisional estimated amount within two months of BODACC publication regardless of uncertainty. The declared amount can only be revised downward on final determination — not upward. The tenant should therefore declare a generous estimate and document the basis for it. Failure to declare in time renders the claim inopposable to the proceedings (since the 2021 reform of Art. L. 622-26) and the tenant loses any right to receive payment during the plan period. Obtain specialist advice immediately on learning of the landlord's insolvency opening.

The Fate of the Lease

Continuation of the Lease
If the administrator (or liquidator) opts for continuation, the landlord's insolvency estate must continue to perform all lease obligations. The option for continuation requires the estate to provide the "promised performance" to the counterparty (Art. L. 622-13 II).
  • All landlord's obligations under the lease continue: repairs, maintenance, specific undertakings
  • Estate must perform — not merely maintain the lease in name
  • Tenant retains full contractual rights including claim for damages for unperformed obligations
  • Tenant can demand the insolvency officer take a position within a reasonable period
Non-Continuation and Termination
In safeguard/reorganisation, if the administrator opts not to continue, the tenant can trigger automatic termination (Art. L. 622-13 III). The administrator can also seek termination from the juge-commissaire (Art. L. 622-13 IV). In liquidation, equivalent rules under Art. L. 641-11-1 apply.
  • Tenant triggers termination: formal demand → no reply within 1 month → automatic termination
  • Or: continuation requires payment and administrator cannot meet it and tenant does not defer
  • Administrator can also request termination from juge-commissaire if necessary for restructuring
  • Liquidation: automatic termination on notification of non-continuation where landlord's obligation is monetary

The Tenant's Pre-emption Right in a Forced Sale

The statutory pre-emption right of the tenant under Art. L. 145-46-1 (introduced by the Pinel reform) applies only to a voluntary sale by the landlord. It does not apply in a forced sale context arising from insolvency proceedings — Art. L. 145-46-1 refers to the landlord "intending to sell," which implies a voluntary decision. Courts have confirmed that public auctions and court-authorised amicable sales are outside the scope of the tenant's pre-emption right (Cass. 3e civ., 17 May 2018; Cass. com., 23 March 2022; Cass. 3e civ., 15 February 2023). A sale plan is therefore also outside the pre-emption right.

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Voluntary vs Forced Sales: The Boundary

A purely isolated asset sale in insolvency that constitutes a genuinely voluntary transaction — not part of a plan or court-ordered procedure — may fall within the pre-emption right if it does not arise from a forced procedure. The test is whether the sale results from a judicial constraint or from a voluntary commercial decision. In practice, most disposals in insolvency proceedings will be outside the pre-emption right. Tenants facing a sale of their landlord's property during proceedings should seek immediate advice on the nature of the transaction before the sale completes.

Landlord's Insolvency: Key Points for Tenants
  • General regime applies (Art. L. 622-13): the specific commercial lease insolvency rules (Arts. L. 622-14, L. 641-12) only apply where the tenant is the debtor. When the landlord is in proceedings, the general contracts-in-progress regime governs — the administrator/liquidator has the option to continue or not continue the lease.
  • Eviction indemnity claim (Arts. L. 622-24 & L. 622-26): declare within two months of BODACC (four months for foreign creditors). Declare a provisional estimate — amount can only be revised downward. Failure to declare renders the claim inopposable to the proceedings (since the 2021 reform of Art. L. 622-26). Since 2005, inopposability ≠ extinction — the claim survives outside the proceedings and the right to remain in the premises should be preserved.
  • Security deposit: pre-opening claim — must be declared to the insolvency estate. Non-declaration = no recovery in any distribution under a plan or in liquidation (Cass. com., 5 June 2007; Cass. com., 10 January 2012; Cass. com., 18 May 2016).
  • Lease continuation: if administrator/liquidator opts for continuation, the estate must perform all landlord obligations — not just maintain the lease passively. If non-continuation: tenant can trigger termination by formal demand unanswered for one month; automatic termination in liquidation on notification where landlord's performance is monetary.
  • Pre-emption right (Art. L. 145-46-1): does not apply to forced sales in insolvency — public auctions, court-authorised amicable sales, and sale plans are all outside its scope (Cass. 3e civ., 17 May 2018; Cass. com., 23 March 2022; Cass. 3e civ., 15 February 2023). A genuinely voluntary isolated asset sale may fall within the right if not arising from a forced procedure.
Your Landlord Has Entered Insolvency Proceedings?

The two-month deadline to declare the eviction indemnity claim is strict and the consequences of missing it are severe. We advise tenants on their position, the declaration, and the strategy for maintaining occupancy and recovering the security deposit.

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This article is for general information and educational purposes only. It does not constitute legal advice and does not create a lawyer-client relationship. Laws and regulations may have changed since publication. Always seek qualified French legal advice on commercial lease issues when the landlord is in insolvency proceedings.