A Lease Designed as a Trial Run
The French commercial lease statute — with its minimum nine-year term, its right of renewal and its potentially substantial eviction indemnity — is a serious long-term commitment. For a landlord letting premises to a new business with an unproven track record, or for a tenant entering a new market and uncertain whether the location will generate sufficient footfall, committing from the outset to the full statutory regime can be an unwelcome constraint on both sides.
The bail de courte durée, known in practice as the bail dérogatoire, was designed by the legislature as a solution to this problem. It is conceived as a trial lease: the landlord can let premises to an occupant without long-term exposure, and the tenant can verify the quality of the location before making a binding commitment to a full commercial lease. Article L 145-5 of the Code de commerce allows parties who would otherwise be subject to the commercial lease statute to derogate from it — but only within strictly defined limits. The freedom is real; the constraints are tight.
In practice, the bail dérogatoire is sometimes incorrectly referred to as a bail précaire. This label is not only legally inaccurate — precarity is absent from the bail dérogatoire, which runs for a fixed, certain term — but it risks confusion with the convention d'occupation précaire, a fundamentally different instrument governed by entirely different rules. The correct terminology is bail dérogatoire or bail de courte durée.
The Two Conditions for a Valid Bail Dérogatoire
Article L 145-5, alinéa 1 of the Code de commerce establishes two cumulative conditions for the bail dérogatoire to be valid. Both must be satisfied simultaneously: the total duration of the lease or successive leases must not exceed three years, and the parties must have genuinely intended to derogate from the commercial lease statute. It is also important to note that the bail dérogatoire only derogates from the statute by reason of its duration — an occupant who does not carry on a commercial, industrial or artisanal activity cannot claim to hold a lease governed by Article L 145-5 (CA Aix-en-Provence 28-11-2019 n° 19/04808).
The Three-Year Duration: How It Is Calculated
The three-year maximum runs from the tenant's entry into possession — defined as the date on which the tenant actually takes physical possession under the lease concluded with the owner (Cass. 3e Civ. 15-4-1992 n° 651 ; Cass. 3e Civ. 30-3-2017 n° 16-10.786). Duration is calculated to the day: a 36-month lease running from 1 July 2024 expires on 30 June 2027. Periods during which the tenant occupied the premises before the contractual start date — for fitting-out works, as a sub-tenant, or as a holdover from a prior commercial lease — are excluded from the calculation.
Successive derogatory leases between the same parties for the same premises are aggregated. If a first bail dérogatoire runs for two years and the parties conclude a second for a further eighteen months, the three-year ceiling is breached and the second lease is subject to the commercial lease statute from inception. After the three-year ceiling is exhausted, a further derogatory lease for the same fonds de commerce in the same premises is no longer possible. The Cour de cassation has ruled that the identity of premises in Article L 145-5 alinéa 3 blocks a new derogatory lease in the same local regardless of the activity (Cass. 3e Civ. 31-5-2012 n° 11-15.580). The 2014 reform raised the maximum duration from two to three years; arrangements concluded before 1 September 2014 remain subject to the two-year limit.
Genuine Intent to Derogate: What the Courts Require
The intention to derogate from the commercial lease statute must be clear and unequivocal. In practice, the courts rarely accept tacit consent. The simple fact of agreeing a duration shorter than the statutory minimum is not sufficient to constitute a bail dérogatoire (Cass. 3e Civ. 2-2-2005 n° 135). Tacit consent has been upheld in limited circumstances — for example, where the maximum permitted duration was agreed and the lease included a non-compete clause binding on the tenant after expiry (Cass. 3e Civ. 8-11-1972 n° 71-13.008). To avoid any doubt, the cleanest approach is to insert an express derogation clause:
The Regime of the Bail Dérogatoire
A bail dérogatoire is an ordinary contract of lease governed by Articles 1709 and following of the Code civil. The provisions of the Code civil on leases are largely supplétifs — they apply in the absence of contrary agreement — which means the parties have considerable contractual freedom to organise their relationship as they see fit, subject to the duration constraint. They may agree on rent, charges, repairs, permitted use, assignment, sub-letting, and termination conditions without the mandatory rules of the commercial lease statute interfering.
No particular form is required for a bail dérogatoire. A verbal arrangement is technically valid but practically inadvisable: a written lease is essential for evidential reasons and, in particular, to demonstrate the parties' mutual intention to derogate from the statute. The written instrument may be concluded after the tenant has taken possession, provided it is expressly stated to have retroactive effect (Cass. 3e Civ. 25-6-1975 n° 74-12.877).
The Condition Report (État des Lieux)
Since 20 June 2014, a condition report must be drawn up jointly by both parties — or by a commissaire de justice acting at the initiative of either party, at shared cost — at the time of taking possession and again at restitution. The condition report must be attached to the lease (C. com. art. L 145-5, al. 5 et 6). Courts have confirmed that the environmental risk disclosure document (état des risques) required under the full commercial lease regime is not required for a bail dérogatoire (CA Paris 17-10-2018 n° 17/00501).
Drafting the Termination Clause: A Critical Detail
Because the bail dérogatoire is a fixed-term lease, it terminates automatically on the arrival of its contractual end date under Article 1737 of the Code civil, without any notice being required from either party (Cass. 3e Civ. 15-3-1972 n° 71-10.482). The landlord is not required to serve a congé in the forms prescribed by Article L 145-9 of the Code de commerce — those provisions apply only to statutory commercial leases (Cass. 3e Civ. 11-5-2022 n° 21-15.389). This is a significant practical advantage for landlords seeking certainty about the end date.
Where the parties choose to include their own contractual notice provisions, those provisions bind them. One further drafting imperative: no provision for tacit renewal should be included in a bail dérogatoire. Any clause that automatically prolongs the lease on the same terms risks transforming the arrangement into a statutory commercial lease at the moment of renewal.
The Seasonal Lease: A Related but Distinct Instrument
Article L 145-5, alinéa 4 of the Code de commerce provides for a second category of short arrangement: the seasonal lease (location saisonnière). A lease is seasonal when it grants the tenant enjoyment of the premises for a season — typically a tourism season, which varies in length depending on the location of the premises. The concept of a "season" does not necessarily mean three months; it corresponds to the relevant tourist cycle of the area. Courts have accepted a six-and-a-half-month lease from 15 March to 30 September in the Vendée as seasonal (Cass. 3e Civ. 7-11-1990 n° 89-12.065), and similarly for a boutique at Juan-les-Pins in view of the Côte d'Azur's two distinct tourism peaks (Cass. 3e Civ. 22-7-1987 n° 86-12.858).
The essential characteristic of a seasonal lease is that the tenant must actually give up possession of the premises at the end of each season. If the premises are made continuously available throughout the year — even if the tenant's business is itself seasonal in operation — the lease is annual, not seasonal, and is subject to the commercial lease statute (Cass. 3e Civ. 1-3-1972 n° 70-14.539). The practical tests applied by the courts include the dates on which keys are returned and recovered, payment of utilities during the off-season, insurance coverage, and whether any deliveries or storage occurred outside the contractual season. A formal key-handover at the end of each season that is shown by other evidence to be fictitious will not save the seasonal characterisation (Cass. 3e Civ. 15-2-2011).
The seasonal lease and the bail dérogatoire are both outside the commercial lease statute. But they diverge fundamentally at expiry. Holding over at the end of a seasonal lease does not trigger a statutory commercial lease. Holding over at the end of a bail dérogatoire for more than one month does — automatically and without any need for a formal act by either party. This distinction is of the first practical importance for seasonal traders who carry out a continuous, year-round occupation of premises whose business happens to be seasonal.
What Happens at Expiry: The One-Month Rule
The most consequential rule governing the bail dérogatoire is what happens when it expires. If the tenant remains in possession and is left in possession by the landlord for more than one month after the expiry of the derogatory lease, a new lease subject to the full commercial lease statute automatically comes into existence (C. com. art. L 145-5, al. 2). No formal act is required. No written document needs to be executed. The new statutory lease arises by operation of law from the simple fact of continued occupation with the landlord's acquiescence.
This rule applies even where the original bail dérogatoire was shorter than three years — for example, a lease of twelve or eighteen months (Cass. 3e Civ. 8-6-2017 n° 16-24.045 ; Cass. 3e Civ. 26-3-2020 n° 18-16.113). There is no tacit continuation of the derogatory regime within the three-year ceiling. The one-month period is calculated from quantième to quantième: if the lease expires on 31 August, the landlord must notify by 30 September at the latest.
The Landlord's One-Month Window
To prevent the statutory lease from arising, the landlord must make clear to the tenant, within one month of the expiry of the bail dérogatoire, that the occupation must cease. A contractual clause in the derogatory lease stating that it will end automatically at its expiry is not sufficient on its own to prevent the statutory regime from arising if the tenant in fact remains and is left in possession (Cass. 3e Civ. 4-5-2010 n° 09-11.840). The landlord must actively communicate the opposition to continued occupation — by registered letter with acknowledgement of receipt or by bailiff's act. Once the landlord has clearly expressed opposition before the end of the lease, subsequent inaction does not necessarily imply tacit acceptance — but if the opposition was ambiguous, later inactivity may lead courts to infer acquiescence (Cass. 3e Civ. 28-6-2011 n° 10-19.236).
The tenant formally departs by returning the keys. An occupant who no longer physically uses the premises but has not returned the keys remains liable for an occupation indemnity until actual return of the keys or the landlord's refusal to receive them (Cass. 3e Civ. 16-3-2023 n° 21-25.002).
The Content of the New Statutory Lease
Where the one-month period elapses without the landlord opposing continued occupation, the new lease that arises is subject to the same clauses and conditions as the expired bail dérogatoire (Cass. 3e Civ. 6-11-2001 n° 1557) — except that any clauses incompatible with the commercial lease statute become void. Any guarantee (cautionnement) given for the bail dérogatoire does not automatically extend to the new statutory commercial lease unless the guarantee instrument expressly provides for this (Cass. 3e Civ. 23-5-2013 n° 11-17.071). The rent of the new lease is freely negotiated by the parties; failing agreement, it corresponds to market rental value (Cass. 3e Civ. 14-12-2005 n° 1418).
Where a bail dérogatoire was concluded with several co-tenants, all those who remain in possession and are left there by the landlord become parties to the new statutory commercial lease, whether or not each of them personally operates the fonds de commerce (Cass. 3e Civ. 23-5-2013 n° 11-17.071). Co-tenants who have actually vacated the premises before the statutory lease arises are not bound by it (Cass. 3e Civ. 6-4-2011 n° 10-11.846). Landlords letting to multiple co-tenants should therefore verify the departure of each before the one-month period expires.
Renunciation of Statutory Protection After Expiry
After the bail dérogatoire has run its course and the tenant has acquired the benefit of the commercial lease statute by remaining in possession, the question arises whether the tenant can renounce that benefit and agree to a further derogatory arrangement. The Cour de cassation has confirmed that such renunciation is possible, but only within the three-year cumulative ceiling running from the first derogatory lease (Cass. 3e Civ. 22-10-2020 n° 19-20.443). A renunciation that takes the cumulative duration beyond three years is without effect. The renunciation must also be unequivocal: the mere fact that a tenant acknowledges owing an occupation indemnity rather than rent does not constitute a sufficiently clear renunciation (Cass. 3e Civ. 15-2-2023 n° 21-12.698).
Whether you are a landlord seeking to limit statutory exposure or a business operator assessing the options before committing to a long-term lease, the bail dérogatoire requires careful structuring to avoid the one-month trap and maximise the benefit of contractual flexibility.
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 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 statutory provision: the bail dérogatoire. Parties who would otherwise be subject to the commercial lease statute may derogate from it for a maximum cumulative duration of 3 years from the tenant’s first entry into possession. Two cumulative conditions: duration within 3 years AND genuine intent to derogate. If tenant remains in possession for more than 1 month after expiry with the landlord’s acquiescence, a new statutory commercial lease arises automatically. Condition report mandatory since 20 June 2014.
Automatic termination of a fixed-term lease at contractual end date without notice required from either party.
Duration raised from 2 to 3 years for bail dérogatoires concluded or renewed since 1 September 2014.
Sub-statutory duration alone is insufficient to constitute a bail dérogatoire: the intent to derogate from the commercial lease statute must be clearly established.
One-month hold-over rule: a new statutory commercial lease arises automatically where the tenant remains in possession for more than 1 month after expiry, even where the derogatory lease was shorter than 3 years.
No further derogatory lease possible in the same local after the 3-year cumulative ceiling, regardless of the activity operated in the premises.
New statutory lease arises on same clauses as expired bail dérogatoire, except for clauses incompatible with the commercial lease statute.
Guarantee given for the bail dérogatoire does not automatically extend to the new statutory commercial lease unless the guarantee instrument expressly provides for this.
New statutory lease rent corresponds to market rental value in the absence of agreement between the parties.
A contractual end-date clause alone is not sufficient to prevent the statutory lease from arising if the tenant in fact remains and is left in possession.
Renunciation of statutory protection by the tenant after holdover is possible, but only within the 3-year cumulative ceiling from the first derogatory lease. Renunciation that takes the cumulative duration beyond 3 years is without effect.
Key return ends the occupation: an occupant who no longer physically uses the premises but has not returned the keys remains liable for an occupation indemnity until actual return of the keys.
