Sale of a Commercially Leased Property: Key Points
The lease transfers automatically to the buyer under Art. 1743 C. civ. when opposable: authentic deed, date certaine, or buyer’s knowledge at the time of sale. Side agreements (rent reductions, subletting authorisations, tacit use changes) transfer only if they also have a date certaine or were known to the buyer. Register all side agreements.
The tenant’s statutory pre-emption right (Art. L. 145-46-1 C. com.) is public-order: applies to voluntary sales from 18 December 2014; the landlord must notify by RAR before any sale step; price and conditions must be stated on pain of nullity; one-month acceptance; two/four months to complete.
A bilateral promise of sale = a completed sale: any subsequent attempt by the tenant to exercise the pre-emption right is ineffective (Cass. 3e civ., 29 February 2024). The notification must precede the bilateral promise, not follow it.
The eviction indemnity and the security deposit are personal debts of the original landlord: they do not transfer to the buyer through the sale. Without the tenant’s express acceptance, a contractual transfer in the sale deed is inopposable to the tenant.
The suretyship transfers automatically to the buyer as an accessory of the rent claim (Cass. ass. plén., 6 December 2004). It only stops transferring if the guarantee instrument expressly provides that the sale terminates the guarantee.

Opposability of the Lease to the Buyer

A lease is opposable to the buyer — and therefore automatically transferred to them — if one of three conditions is met: the lease was made by authentic deed; a private-deed lease has acquired a date certaine (achieved for example by registration, by reference in a notarial act or court order, or by the death of a party); or the buyer had knowledge of the lease and accepted it at the time of purchase. If no date certaine exists and the buyer had no knowledge, the buyer may seek the tenant’s expulsion (Cass. com., 18 April 1951). Art. 1743 is not a public-order rule — the buyer can expressly or tacitly waive the absence of a date certaine and agree to execute the lease (Cass. 3e civ., 17 September 2008).

Once the lease is opposable, the sale automatically transfers it to the buyer, who must fulfil all future landlord obligations and can invoke the lease against the tenant. However, the buyer cannot invoke pre-sale tenant breaches not pursued beyond the sale (Cass. 3e civ., 10 November 2009). If a breach continues after the sale, the buyer can act for the entire period. The buyer may also rely on a clause résolutoire for a pre-sale situation persisting after the sale (Cass. 3e civ., 13 November 1979).

Subrogation of the Buyer

The parties may provide in the sale deed that the seller’s rights arising from the lease are ceded to the buyer, enabling pursuit of pre-sale breaches or arrears. Subrogation must be express (Cass. 3e civ., 2 October 2002). The seller’s obligations cannot be transferred to the buyer without the tenant’s express acceptance: a seller condemned before the sale to carry out works remains personally liable after it — that obligation does not pass to the buyer through a subrogation clause alone (Cass. 3e civ., 21 February 2019; Cass. 3e civ., 23 January 2020).

Side Agreements: Opposability to the Buyer

The automatic transfer of Art. 1743 covers only the lease itself. Agreements made outside the lease between the original landlord and tenant — rent reductions, subletting authorisations, tacit permitted use changes, works authorisations — are only opposable to the buyer if they had a date certaine at the time of the sale or if the buyer had knowledge of them. The burden of proof lies on the tenant (Cass. 3e civ., 20 July 1989; Cass. 3e civ., 17 November 1998; Cass. 3e civ., 29 September 2009). All such side agreements should be registered to acquire date certaine.

The Tenant’s Statutory Pre-emption Right

Article L. 145-46-1 C. com. (Pinel law; applicable to promises and sales from 18 December 2014: Cass. 3e civ., 12 November 2020) gives the commercial tenant a first right of purchase on a voluntary sale of the premises. The right is public-order: contractual derogations are unenforceable (Cass. 3e civ., 28 June 2018).

1
Landlord notifies tenant by RAR or personal delivery
Must be sent before any sale step. The notification must state the price and conditions of the intended sale on pain of nullity. It constitutes an offer to sell.
2
Tenant has one month to accept
If the tenant accepts, they have two months to complete (four months if the tenant notifies an intention to borrow). The acceptance lapses if the sale is not completed within those periods.
3
If tenant does not accept: landlord may proceed with the sale
If the landlord then decides to sell on better terms for the buyer, a fresh notification is required. A bilateral (synallagmatic) promise of sale constitutes a sale: subsequent pre-emption exercise is ineffective (Cass. 3e civ., 29 February 2024).
4
Before notification: permitted steps
The landlord may sign a sale mandate to assess market value. After notification but before the tenant’s period expires, the landlord may sign a unilateral promise of sale under the suspensive condition that the pre-emption right is purged.

Exclusions from the Pre-emption Right

The right does not apply to: sale of an entire building comprising commercial premises; single simultaneous sale of several premises in a commercial ensemble; sale of one unit to a co-owner of a commercial ensemble; sale to the landlord’s spouse, direct ancestors or descendants (or their spouses); forced sales by auction; court-authorised amicable sales in insolvency proceedings (Cass. 3e civ., 17 May 2018; Cass. com., 23 March 2022; Cass. 3e civ., 15 February 2023); or sales by court-ordered auction in mortgage enforcement proceedings (Cass. 3e civ., 30 November 2023). The right does not cover non-sale transfers: contributions in kind, long-term leases, donations, splits of usufruct and bare ownership, or death transmissions. A tenant who received a notice to quit with refusal of renewal loses the pre-emption right (CA Paris, 25 January 2024).

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Warning — Notification Must Precede Every Step in the Sales Process

The landlord must notify the tenant before any step that commits the property to a buyer — before instructing an agent on a selling mandate, before signing any conditional promise, and certainly before any binding sale agreement. Notification after a bilateral promise of sale has been executed is too late: the right is extinguished. Courts apply the residential pre-emption case law by analogy and take a strict approach to the timing obligation.

The Seller’s Retained Personal Obligations

While the lease itself passes to the buyer, three obligations remain personal to the original seller regardless of any subrogation clause in the sale deed:

Obligation Who bears it after sale? Key rules
Eviction indemnity Original landlord (seller) Personal debt of the landlord who served the refusal notice; does not transfer to buyer (Cass. 3e civ., 10 December 1997). Buyer’s options: right of repentance (buyer holds this right after sale) or pay indemnity to obtain vacant possession. Notice carries over to buyer (Cass. 3e civ., 15 March 1989).
Security deposit Original landlord (seller) Personal debt arising from receipt of the deposit; does not transfer to buyer (Cass. 3e civ., 28 June 2018). Transfer in sale deed inopposable to tenant without tenant’s express acceptance. Buyer may not require a fresh deposit without proving the original was returned (CA Paris, 6 June 2001).
Suretyship (guaranty) Buyer (automatically) Transmits automatically to buyer as an accessory of the rent claim ceded on sale (Cass. ass. plén., 6 December 2004). Stops only if the guarantee instrument expressly provides that the sale terminates the guarantee.
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Practical Point — Buyer Facing an Eviction Indemnity Situation

A buyer who acquires a property where the seller has already served a refusal notice has limited options. The evicted tenant retains the right to stay until the indemnity is paid in full (Art. L. 145-28). The buyer therefore faces an occupied property and two choices: exercise the right of repentance — which only the buyer holds after the sale — and thereby offer renewal, avoiding the indemnity; or pay the indemnity (recoverable from the seller as a personal debt) to obtain vacant possession. Structuring the sale price to reflect a withheld indemnity reserve is therefore essential where a refusal notice is already outstanding at the date of sale.

Rescission of the Sale

If the sale is rescinded, the original landlord is restored to their position as owner and landlord, and the eviction indemnity obligation reverts to them from any arrangement made in the sale deed. Rents collected by the buyer are returned to the seller, who in turn must return the sale price (Cass. 3e civ., 29 June 2005).

Practical Checklist: Structuring the Sale of a Commercially Leased Property
Sellers — register all side agreements before marketing: rent reductions, subletting authorisations, tacit use changes, and works authorisations that were not in the original lease must be registered to acquire date certaine. Without this, a buyer who was not aware of them at completion will not be bound by them, and the tenant may lose rights they were relying on.
Sellers — serve the pre-emption notification before any sale step: do not sign a selling mandate, a unilateral promise, or any other commitment before the tenant’s one-month window has expired. A bilateral promise served after the pre-emption notification is required constitutes the sale and extinguishes the right.
Buyers — identify and price outstanding personal obligations of the seller: before exchange, establish whether there is an outstanding refusal of renewal notice (creating an eviction indemnity exposure), and whether the security deposit was received. If so, negotiate a price reduction or escrow arrangement. The buyer cannot recover these amounts from the tenant.
Buyers — verify the security deposit position: confirm whether the seller received a security deposit and whether it will be contractually transferred to the buyer in the sale deed. If it is transferred, the tenant’s express acceptance is required for the transfer to be opposable. Without it, the buyer may face a claim for return of the deposit at the end of the lease without having received the funds.
Both parties — review the guarantee instrument: the suretyship transmits automatically to the buyer under the Assemblée plénière 2004 ruling. Check the guarantee instrument expressly: if the seller wishes to be released from any guarantee-related liability, the sale deed should address this. If the buyer requires continuation of the guarantee, no action is needed unless the instrument provides for termination on sale.
Buying, Selling or Occupying a Commercially Leased Property?

Whether you are structuring the sale of an investment property with a sitting commercial tenant, advising a buyer on the pre-emption right exposure, or acting for a tenant notified of a proposed sale, we advise on all aspects of the transaction and its impact on the lease.

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Legal Notice. This article is for general information and educational purposes only. It does not constitute legal advice. Laws and regulations may have changed since publication. Always seek qualified French legal advice on the sale of a commercially leased property in France.