2 conditions
Both must be met for the commercial lease statute to apply to a bare land lease (Art. L. 145-1 II, 2°)
Express consent
Landlord's consent to constructions must be express as to both nature and use — tacit tolerance is insufficient
Art. R. 145-9
Special rent regime for bare land — land value method, no capping, applies only while constructions have not yet vested
Art. 555
Civil Code accession rule — governs fate of tenant-built constructions absent an express lease clause

When the Commercial Lease Statute Applies to Bare Land

A purely bare land lease — where no constructions exist — cannot benefit from the commercial lease statute, even if used commercially (Cass. 3e civ., 1 February 1989). The parties may voluntarily submit a bare land lease to the statute. Where they have not done so, the statute applies only if two cumulative conditions are met:

Condition 1: Permanent Commercial Constructions
Permanent commercial, industrial, or artisanal constructions have been erected on the land, whether before or after the lease took effect. The constructions must form a fixed and solid structure assembled from materials bonded to the ground — not summary, temporary, or easily dismantled.
  • Qualify: ball-trap ground, show homes, tennis courts with attached bar
  • Do not qualify: car park surface, golf course, tennis courts without annexes, ski-lift pylons, rolling cranes in a port zone
  • A building permit is relevant but not sufficient to establish fixity and solidity
Condition 2: Landlord's Express Consent
The constructions were built or operated with the landlord's express consent as to both their nature and their use. Consent generally arises from the terms of the lease itself. Tacit consent is sufficient only where it is unequivocal — mere tolerance or awareness is not enough.
  • Landlord who gives express consent assumes a planning law risk
  • May be treated as beneficiary of the constructions for permit purposes
  • Potential criminal exposure for planning violations
  • Verify all administrative authorisations before consenting

The land must also serve the operation of a fonds de commerce. Where either condition is absent, the landlord may deny the tenant the benefit of the statute at any time, even after already having served a notice of non-renewal (Cass. 3e civ., 3 November 2016, n° 15-16.122).

The Fate of Tenant-Built Constructions

Accession

In the absence of a lease clause, the fate of constructions erected by the tenant is governed by Article 555 of the Civil Code (new constructions only — not works on pre-existing buildings). The landowner may either retain ownership of the constructions (paying the tenant either the increase in land value or the cost of materials and labour) or require their removal at the tenant's expense. Until accession has occurred, the property tax and all charges specific to the constructions fall on the tenant.

End-of-Lease Accession Clause
Constructions vest in the landlord at the expiry of the lease during which they were built. This is the most common contractual arrangement and the one that courts treat as the default where no clause is expressed. Rent implications: constructions can only be taken into account for rent at the second renewal following their completion — not the first.
End-of-Tenancy Accession Clause
Constructions remain the tenant's property until the tenant leaves for good — they do not vest at each lease renewal, only on final departure. This gives the tenant continuing ownership and the right to remove or sell them as long as any new tenancy continues.

Clearance Clauses (Clause de Nivellement)

The lease may contain a clearance clause requiring the tenant to demolish the constructions and return the land vacant at the end of the tenancy. Such clauses are valid as long as they do not deprive the tenant of the right of renewal or the right to an eviction indemnity.

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Conflict Between Accession and Clearance Clauses

A conflict between an accession clause and a clearance clause in the same lease must be resolved by giving both clauses effect simultaneously — not by treating one as silently overriding the other. Courts typically achieve this by treating the clearance option as exercisable only on final departure rather than at each renewal (CA Rennes, 3 October 2006; CA Paris, 27 February 2013). Drafting both clauses in the same lease requires care to avoid unintended results.

Rent Rules: Article R. 145-9

Article R. 145-9 of the Code de commerce provides that the rent for land leases is fixed by reference to the elements specific to the land, having regard to the nature and conditions of the exploitation actually authorised. The key distinction is whether the constructions have already vested by accession in the landlord at the time of renewal.

Constructions have NOT yet vested → Art. R. 145-9 applies
Rent fixed at market value — no capping rule applies. Valuation excludes the constructions but takes overall exploitation into account. Relevant factors: land area; development potential; terms of any clearance clause; access conditions.
  • Capitalisation method: capitalise the land's capital value (yield method)
  • Comparison method: per-m² unit price by comparison to analogous plots or sites
  • Weighted combination of both methods also accepted
  • Tenant's constructions only factored in at second renewal — not first (unless landlord funded them)
Constructions have vested → ordinary rules apply
Art. R. 145-9 is disapplied once the constructions have vested in the landlord. The lease has become a lease of an improved plot. Ordinary capping rules (Art. L. 145-34) and five-criterion market-value rules (Art. R. 145-3 et seq.) apply at renewal. The landlord must establish a ground for uncapping in the usual way.
  • Art. L. 145-34 capping applies — index-linked variation unless uncapping ground established
  • Five criteria of Art. R. 145-3 govern market value assessment
  • Constructions vested = landlord can no longer exclude them from the rental valuation
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Tenant Constructions — Second Renewal Rule

Where constructions were erected by the tenant and the lease contains an end-of-lease accession clause (or no clause — case law treats this as equivalent), the constructions vest at the expiry of the first lease in which they were built. They can only be taken into account for rent purposes at the second renewal following their completion — not the first — unless the landlord contributed to their cost directly or indirectly (Cass. 3e civ., 27 November 1990, applying Art. R. 145-8). This means the tenant gets at least one renewal at the uncapped land-only rate before the constructions are factored into the rent.

Bare Land Leases: The Essentials
  • Two cumulative conditions (Art. L. 145-1 II, 2°): bare land with no constructions cannot benefit from the statute. For the statute to apply: (1) permanent commercial constructions erected with landlord's express consent; (2) land used for a fonds de commerce. Landlord can deny the statute where either condition is absent, even after serving a notice of non-renewal (Cass. 3e civ., 3 Nov. 2016).
  • Qualifying constructions: must be fixed, solid, and permanent — not summary, temporary, or easily dismantled. A building permit is relevant but not sufficient. Car parks, golf courses, tennis courts without annexes, ski-lift pylons, and port cranes have been held not to qualify. Landlord consenting to constructions assumes planning law risk — verify authorisations before consenting.
  • Accession (Art. 555 C. civ.): absent a lease clause, landlord may retain constructions (paying tenant) or require removal at tenant's expense. Lease should specify: end-of-lease accession (vest at lease expiry) or end-of-tenancy accession (vest on final departure). Until accession, property tax and construction-related charges fall on the tenant.
  • Clearance clause (clause de nivellement): valid if it does not deprive the tenant of renewal rights or eviction indemnity. Where an accession clause and a clearance clause coexist in the same lease, courts give both effect simultaneously rather than letting one override the other — typically by treating clearance as exercisable only on final departure (CA Rennes, 3 Oct. 2006; CA Paris, 27 Feb. 2013).
  • Art. R. 145-9 rent regime — constructions not yet vested: rent fixed at market value, no capping. Valuation based on land value excluding constructions. Two methods accepted: capitalisation of land value (yield) or per-m² comparison to analogous plots; combination also valid. Tenant's constructions only factored in at second renewal — not first (unless landlord funded them, Cass. 3e civ., 27 Nov. 1990).
  • Once constructions have vested: Art. R. 145-9 is disapplied. The lease becomes a lease of an improved plot. Ordinary capping (Art. L. 145-34) and five-criterion market-value rules (Art. R. 145-3 et seq.) apply at renewal. The landlord must establish a recognised ground for uncapping — constructions now form part of the improved premises valuation.
Dealing with a Bare Land Lease Renewal or Construction Issue?

Bare land leases raise complex questions around accession timing, the interaction of accession and clearance clauses, and the choice of valuation method at renewal. We advise landlords and tenants on the applicable regime and on the strategic choices to be made before and at renewal.

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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 bare land commercial leases in France.