Approval Clauses (Clause d’Agrément) in Lease Assignments: Valid or Abusive?

What an Agrément Clause Does

A clause d'agrément — sometimes called an autorisation clause — gives the landlord the right to approve or refuse the proposed assignee before the assignment takes effect. It differs from a simple participation clause, which merely requires the landlord to be called to the assignment deed without giving a veto. An agrément clause gives the landlord a substantive right to refuse, subject to the limits discussed below. The landlord who intervenes in the assignment deed to give its approval does not thereby become a party to the assignment itself — its role is limited to approving the substitution. It cannot later claim, on the basis of its participation in the deed, that it is bound by representations made between the outgoing and incoming tenants.

These clauses are valid even where the assignment arises in the context of a business sale. Article L 145-16 of the Code de commerce prohibits landlords from blocking a lease assignment in a business sale context, but it does not prevent them from subjecting that assignment to an approval process (Cass. 3e Civ. 14-4-1982 n° 80-14.693; confirmed 2002). A tenant who signs a business sale agreement without first securing the landlord's approval is proceeding at its own risk.

When the Tenant Must Seek Approval

The tenant must seek the landlord's agreement before the assignment is concluded — not after. An assignment concluded without the required approval, even if subsequently notified to the landlord, is irregular and potentially inopposable to the landlord. The tenant can validly conclude the assignment subject to a condition precedent of landlord approval: the deal is signed but does not become effective unless and until the landlord approves. This is common in business sale transactions where timing uncertainty around landlord approval could otherwise disrupt the overall closing. It is prudent to send a formal written request to the landlord by registered letter, setting out the proposed assignee's identity, business experience, financial capacity, and proposed use of the premises, to create a documentary record for any subsequent dispute.

When Refusal Is Legitimate

The landlord's right to refuse is subject to a fundamental constraint: the refusal cannot be discretionary or arbitrary. It must have a legitimate reason. This principle applies regardless of how the agrément clause is worded — no matter how broadly drafted, the landlord cannot refuse without a basis that a court would recognise as legitimate. Legitimate grounds for refusal include the proposed assignee's insufficient financial capacity to meet lease obligations, doubts about the assignee's commercial competence or professional reputation in the relevant sector, or a proposed activity that conflicts with the destination provisions of the lease. The landlord may also condition its approval on the assignee accepting modifications to the lease terms — for example, separation of mixed commercial and residential uses — provided those conditions are reasonable.

When Refusal Is Abusive

An abusive refusal is one that lacks any legitimate commercial basis. Courts have been consistently willing to characterise refusals as abusive where they appear designed to achieve an objective collateral to the landlord's legitimate interests — particularly where the real purpose is to evict the tenant without paying an eviction indemnity.

Consequences of Abusive Refusal

Where the landlord's refusal is found to be abusive, the tenant has two potential remedies. First, it can apply to the court for a judicial order authorising the assignment despite the landlord's refusal. The court can substitute its own authority for the landlord's approval, permitting the assignment to proceed to the designated assignee. This judicial authorisation is specific: it is granted for a particular proposed assignee and cannot be transferred to a different person. Second, the tenant can claim damages from the landlord for the loss suffered as a result of the refused assignment — including the loss of the sale price, loss of business use while proceedings are pending, and any related consequential losses. Where the landlord's conduct constitutes a manifestly unlawful interference, the juge des référés has jurisdiction to order the assignment even before a full hearing, on the basis that the unlawful refusal constitutes a trouble manifestement illicite (CA Versailles 20-12-2006 n° 06-2554; Cass. 3e Civ. 16-11-2023 n° 22-17.567).

Tacit Approval by Conduct

Where an assignment has been concluded without the formal approval procedure being followed, the landlord may lose the right to challenge it if its subsequent conduct unambiguously demonstrates acceptance of the assignee as its new tenant. Tacit approval requires an unequivocal positive act — mere knowledge of the assignment is not enough. Repeatedly accepting rent from the assignee without reservation, sending rent demands in the assignee's name, or entering into correspondence with the assignee about lease terms or renewal have all been treated as tacit approval in the case law. A landlord who accepts payment "without prejudice to all rights and actions" may not have approved the assignment tacitly, depending on the overall course of conduct. Practitioners advising landlords who become aware of an irregular assignment should advise them to act promptly and to avoid any conduct that could be interpreted as accepting the new occupier's position.

This article is for general information and educational purposes only. It does not constitute legal advice. The legal framework described reflects French law as at 2025. Always seek qualified legal advice before any lease assignment or approval dispute.