The General Principle and the Exception
The commercial lease statute under Article L 145-1 of the Code de commerce applies in the first instance to leases of buildings or premises in which a commercial business is operated. Bare land — terrain nu — is excluded from this primary category. A landowner who lets an empty plot to a commercial operator does not, by that act alone, become subject to the mandatory provisions of the statute: the tenant has no right of renewal, no eviction indemnity, and the parties are free to organise their relationship under ordinary civil law.
Article L 145-1, I-2° of the Code de commerce carves out an important exception to this principle. The statute applies to leases of bare land on which commercial, industrial or artisanal constructions have been erected — whether before or after the conclusion of the lease — provided those constructions were erected or operated with the express consent of the owner. The courts have added a third condition not stated in the text: a fonds de commerce must be operated in the constructions. And the general requirement of RCS registration applies equally: the tenant must register the establishment at the leased address to enjoy the right of renewal.
Condition 1: What Counts as a Qualifying "Construction"?
The statutory text refers to "constructions" without defining the term. The courts have filled this gap by requiring that constructions present two cumulative characteristics: sufficient fixity and sufficient solidity. These are matters of fact assessed sovereignly by trial courts (Cass. 3e Civ. 17-10-1968 n° 66-13.711 ; Cass. 3e Civ. 1-3-1995 n° 147). A construction implies a structure and stability, the achievement of which requires foundations, even shallow ones (CA Paris 25-6-1959). What the courts have consistently excluded are "flying and light constructions" — structures in planks, easily dismountable, without foundations — and mobile units that can be transported without severing any connection to the ground.
The constructions must have been erected on the leased land — either before or during the lease. Where a lease is granted over bare land without any right to build, and the tenant builds anyway in breach of the lease, the statute does not apply. Where the lease grants a right to build but the tenant never exercises it, there is no qualifying construction and no statutory protection (Cass. 3e Civ. 14-10-1987 n° 1618 ; CA Paris 19-10-2001 n° 00-8844).
Condition 2: The Express Consent Requirement
Article L 145-1, I-2° requires that the constructions have been erected or operated with the owner's express consent. The word "express" does not necessarily mean written consent, but it does require a positive act by the owner manifesting a certain agreement — something more than mere tolerance or passive acquiescence (Cass. 3e Civ. 16-4-1969 n° 68-10.187). Tacit consent is not sufficient; the tenant bears the burden of proving formal authorisation (Cass. 3e Civ. 18-3-1980 n° 78-14.510). The courts draw a sharp distinction between simple tolerance of the tenant's commercial activity — which is insufficient — and a genuine authorisation to erect a permanent structure (Cass. 3e Civ. 10-7-1996 n° 1265).
A tenant who has operated a commercial activity on bare land for fourteen years without the landlord's express authorisation to build cannot invoke the statute, regardless of how long the de facto occupation has lasted (Cass. 3e Civ. 9-4-2014 n° 13-10.725). Where the land is non-constructible under planning law and the lease document originally stated this, no authorisation can be inferred from the landlord's subsequent silence or inaction. A landlord who authorised only a light wooden demountable structure cannot be held to have extended that authorisation to the construction of a concrete slab and permanent sanitary installations (CA Bastia 14-4-2021 n° 19/00472).
Given the strict requirements for express consent, any tenant who intends to erect commercial constructions on leased bare land should ensure the lease contains an explicit authorisation clause specifying the nature and extent of the permitted constructions. Conversely, any landlord who wishes to permit only temporary or light structures should ensure the lease expressly limits the authorisation to that description. Silence, tolerance, and passive acquiescence are regularly found insufficient by the courts, with the result that either the tenant loses statutory protection or the landlord finds themselves unexpectedly bound by the statute.
Condition 3: A Fonds de Commerce Must Be Operated
The third condition — not stated in the statutory text but firmly established by case law — is that a commercial, industrial or artisanal fonds de commerce must actually be operated in the constructions (Cass. 3e Civ. 11-5-1988 n° 86-19.631 ; Cass. 3e Civ. 23-1-2020 n° 19-11.215). The constructions must serve the exercise of a commercial activity. The tenant must also be the owner of the fonds thus operated (Cass. 3e Civ. 6-12-1983 n° 81-11.738).
Where a bare land lease was concluded for the exploitation of a naturist camp and the tenant set up a société civile to erect the necessary bungalows and a separate operating company to run the site, the courts held that the common intention of the parties was to use the land for commercial exploitation, and the civil character of the constructing entity was irrelevant to the application of the statute (Cass. 3e Civ. 20-12-1976 n° 75-11.700).
RCS Registration Also Required
Beyond the three substantive conditions, the tenant of bare land on which qualifying constructions have been erected must also be registered in the RCS — specifically for the establishment located on the leased land — to benefit from the right of renewal. The courts have refused eviction indemnities where one of several co-tenants had never been registered at the leased address (Cass. 3e Civ. 26-2-1999 n° 97-18.409) and where the tenant had failed to maintain registration (Cass. 3e Civ. 23-1-2020 n° 19-11.215).
The Effects of the Statute on Bare Land Leases
Renewal: Land Only, Not Constructions
Where the conditions of Article L 145-1, I-2° are satisfied, the bare land lease is subject to the full commercial lease statute. The tenant has a right of renewal. However, the renewal bears on the land alone and not on the constructions, because a commercial lease renews, in the absence of contrary agreement, on the same terms and conditions as the expired lease — and the expired lease was a lease of bare land (Cass. 3e Civ. 3-2-1988 n° 86-16.158). The constructions, having been built by the tenant, are not part of the leased asset.
Rent Review: No Cap, Market Value Excluded, Specific Rules Apply
The rent of a commercial lease is normally subject to a cap at review under Article L 145-34 of the Code de commerce. This capping rule does not apply to bare land leases. Article R 145-9 of the Code de commerce provides that the rent of a bare land lease is determined by reference to elements specific to that land, taking account of the nature and modalities of the exploitation actually authorised. Market rental value — the reference point for statutory rent revision of ordinary commercial leases — is therefore inapplicable, and the landlord cannot use a rent revision application to bring the rent up to market value.
The Fate of Constructions at the End of the Lease
One of the most commercially significant aspects of the bare land lease is what happens to the constructions the tenant has erected when the lease ends. The answer depends on whether the lease contains specific provisions on the point.
Silence: The Civil Law Accession Rule
Where the lease is silent on the fate of the constructions, Article 555 of the Code civil applies. Under this provision, where plantations, constructions and works have been made by a third party using their own materials, the owner of the land has the right either to retain ownership of the constructions, or to require the third party to remove them. The landlord's options are therefore: keep the constructions and pay the tenant either the added value brought to the land or the cost of materials and labour; or require demolition at the tenant's expense with no compensation.
Contractual Accession Clauses
Because Article 555 of the Code civil is not a matter of public order, the parties are free to organise the fate of the constructions by contract. Two approaches are typical. The first provides for accession without indemnity at the end of the current lease term — the landlord becomes owner of the constructions at that point, and any renewal then bears on a built site rather than bare land. The second defers accession to the end of the last renewal and provides for accession at the termination of the overall relationship, also typically without indemnity.
Where a lease contains an accession clause providing that constructions become the landlord's property as they are erected, the tenant cannot validly sell those constructions to a third party. A company that acquires a building erected by a previous tenant under such a clause, and then itself becomes the tenant of the site, has not concluded a lease of bare land: the building belonged to the landlord from the moment of its construction (Cass. 3e Civ. 18-1-2018 n° 15-27.525).
Three rules apply to bare land leases that do not apply to ordinary commercial leases of built premises: first, the rent is not subject to the statutory cap on review and is assessed by reference to elements specific to the land (Art. R 145-9); second, renewal bears on the land only, not the constructions; and third, the fate of the constructions at the end of the lease is governed by Art. 555 of the Code civil or by a contractual accession clause — not by the renewal mechanism. These differences make bare land lease structuring a technically specific exercise requiring careful drafting.
Whether you are a landowner considering a long-term letting arrangement or a commercial operator planning to build on leased land, the conditions for statutory protection and the specific rules on rent, renewal and accession require careful legal structuring from the outset.
Speak with a French LawyerThis article is for general information and educational purposes only. It does not constitute legal advice. The legal analysis reflects the provisions of the Code de commerce, the Code civil and the case law cited. French commercial lease law is a complex and evolving area. Always seek qualified legal advice for your specific situation before making any decision with legal consequences.
Key Legal References
Core provision: Art. L 145-1, I-2° C. com. extends the commercial lease statute to leases of bare land on which commercial, industrial or artisanal constructions have been erected (before or during the lease) with the owner’s express consent, where a fonds de commerce is operated in the constructions. Three cumulative conditions: qualifying constructions; express consent; fonds de commerce operated by the tenant.
Rent review for bare land leases: determined by reference to elements specific to the land, taking account of the nature and modalities of the exploitation actually authorised. The statutory rent cap (Art. L 145-34) does not apply. Market rental value is excluded as a reference point.
Default civil law rule for constructions erected on leased land: the owner of the land may retain ownership of the constructions (paying the tenant the added value or cost of materials/labour) or require demolition at the tenant’s expense.
Constructions must present sufficient fixity and solidity — the assessment is a matter of fact reviewed sovereignly by trial courts.
Express consent required: not mere tolerance or passive acquiescence; the tenant bears the burden of proving a positive act of authorisation.
Simple tolerance of the tenant’s commercial activity is insufficient; a genuine authorisation to erect a permanent structure must be established.
Fourteen years of commercial occupation without the landlord’s express authorisation to build does not attract the statute, regardless of how long the de facto occupation has lasted.
A fonds de commerce must be operated in the constructions — third condition established by case law. The tenant must be the owner of that fonds.
RCS registration at the leased address required for the right of renewal. Eviction indemnity refused where co-tenant was never registered at the leased address.
Renewal bears on the land alone, not the constructions, in the absence of contrary agreement.
Two containers linked by a corrugated roof whose fixity derived from connection to utility networks qualify as constructions.
Where the lease contains an accession clause making constructions the landlord’s property from the moment of erection, the tenant cannot sell those constructions. A subsequent tenant acquiring such a building does not hold a lease of bare land.
