Art. L. 145-17, I, 2°
Two grounds for no-indemnity refusal: (1) prefectoral order of irremedial insalubrity; (2) building that cannot be occupied without danger
No prior notice
Unlike fault-based refusal, no prior formal notice to tenant required; ground can be raised at any stage of proceedings, including after first judgment
Landlord's fault = blocked
If insalubrity or danger originated from the landlord's own neglect, works, or conduct, the landlord cannot use this no-indemnity ground
Priority on reconstruction
If landlord reconstructs with commercial premises, evicted tenant has statutory right of priority — must notify at vacation or within 3 months

Two Distinct Grounds Under the Same Provision

Article L. 145-17, I, 2° of the Code de commerce allows refusal of renewal without any eviction indemnity in two different situations: where the building must be totally or partially demolished as a result of an administrative declaration of irremedial unfitness for habitation (insalubrité irrémédiable); and where the building can no longer be occupied without danger because of its physical condition. Unlike the fault-based refusal under Article L. 145-17, I, 1°, this ground does not require a prior formal notice to the tenant — and it can be invoked at any stage of the proceedings, even after a first decision has already recognised the tenant's right to an eviction indemnity.

Both grounds share two common conditions: the state of the building must threaten the continuation of the commercial activity (a building defect affecting only a residential portion, where the lease is divisible, does not suffice — Cass. 3e civ., 30 January 2002); and the insalubrity or dangerous state must not originate from the landlord's own conduct or neglect. The burden of proving that the landlord caused the situation lies with the tenant.

Ground 1 — Insalubrity
Irremedial Administrative Declaration
Requires an arrêté by the préfet declaring the building irremedially unfit for habitation under Art. L. 1331-28-1 of the Code de la santé publique.

Not sufficient: a temporary prohibition on occupation; an order to carry out remediation works. The declaration must be irremedial.

The arrêté is binding on the civil courts (Cass. com., 17 November 1966). Whether demolition is also required as a separate condition in addition to the insalubrity order remains legally open.

Proof: only the official prefectoral order qualifies — no administrative flexibility.
Ground 2 — Dangerous Building
Physically Dangerous to Occupants
Does not require a prior administrative decision — proof by any evidence demonstrating the building cannot be occupied without danger (Cass. 3e civ., 11 Feb. 1971).

Accepted: independent expert report; péril order from mayor ordering demolition (binding on civil courts); age-related deterioration not attributable to landlord's neglect; dangerous state of adjacent building forming structural unit with leased premises.

Not accepted: architect's certificate commissioned by the landlord alone (CA Paris, 25 Feb. 2009). A péril order merely requiring works is not binding — court assesses independently.

Critical: demolish before establishing the condition = evidence destroyed and ground permanently lost (Cass. 3e civ., 9 Jan. 1991).
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Warning — Establish the Condition Formally Before Acting

Where a landlord intends to rely on the dangerous building ground, the building's condition must be officially documented before any demolition takes place. A landlord who demolishes first and seeks to prove the prior dangerous state afterwards cannot do so: the evidence no longer exists (Cass. 3e civ., 9 January 1991). Commission an independent expert assessment, seek a péril order if available, and preserve all contemporaneous records before taking any irreversible steps.

Timing: The Ground Can Be Raised at Any Stage

Unlike the fault-based ground under Article L. 145-17, I, 1°, the insalubrity or danger ground can be invoked at any time — including in the initial notice, in a response to a renewal request, and even after a court has already recognised the tenant's entitlement to an eviction indemnity in principle (Cass. 3e civ., 4 June 1973). A landlord who initially served a renewal offer notice can retract that offer on insalubrity or danger grounds (Cass. 3e civ., 12 September 2019). Even a landlord who knew of the insalubrity at the time of a first refusal notice and did not invoke it can serve a second notice based on that ground.

The Tenant's Right of Priority on Reconstruction

Reconstruction is not mandatory. If the landlord chooses not to rebuild, no priority right arises. But where the landlord or their successor does reconstruct and the new building includes commercial premises, the evicted tenant has a statutory right of priority under Articles L. 145-17, II and L. 145-19 to L. 145-20 of the Code de commerce.

To preserve the right, the tenant must notify the landlord — at the time of vacating or within three months of vacation — of their intention to exercise it, by registered letter, with their new address. They must also notify any subsequent change of address on pain of forfeiture. If the landlord then proposes to re-let or occupy the new premises, they must first offer the space to the tenant with a three-month window for the tenant to accept or bring court proceedings to fix the terms. Failure to observe this priority obligation exposes the landlord to damages — not assessed under the Art. L. 145-14 eviction indemnity formula (Cass. 3e civ., 5 April 1978).

Where the new building has a larger footprint, the priority right is limited to equivalent space or space capable of meeting the same commercial needs. Where multiple former tenants have priority rights and the new building cannot accommodate all of them, priority is given to tenants with the longest-standing leases who have notified their intention to exercise the right.

Insalubrious or Dangerous Building: Key Points
  • Two grounds, two different evidential standards: insalubrity requires an irremedial prefectoral arrêté (temporary prohibition or works order = insufficient); dangerous building requires proof by any means but demolishing before establishing = ground permanently lost (Cass. 3e civ., 9 Jan. 1991).
  • Two common conditions for both grounds: (1) condition must threaten continuation of commercial activity — defect affecting only a divisible residential portion is insufficient (Cass. 3e civ., 30 Jan. 2002); (2) condition must not originate from the landlord's own conduct or neglect — landlord cannot use this ground if they caused the problem.
  • No prior formal notice required; any stage: ground can be raised at any time — in the initial notice, in response to a renewal request, or even after a first judgment on principle (Cass. 3e civ., 4 June 1973). Landlord can retract a renewal offer on this ground (Cass. 3e civ., 12 Sept. 2019).
  • Priority right on reconstruction (Arts. L. 145-17 II, L. 145-19–20): notify landlord by registered letter at vacation or within 3 months; include new address; notify address changes on pain of forfeiture. Landlord must offer space before re-letting; tenant has 3 months to accept or bring proceedings. Breach = damages, not assessed under Art. L. 145-14 formula (Cass. 3e civ., 5 Apr. 1978). Multiple claimants: oldest lease has first priority.
Dealing with an Insalubrious or Dangerous Building?

Whether you are a landlord considering a no-indemnity refusal on building condition grounds, or a tenant whose renewal has been refused on this basis, we advise on the conditions, the admissibility of the evidence, and the priority right on reconstruction.

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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 refusal of renewal for insalubrious or dangerous premises.