Derogatory and Seasonal Lease Checklist
A derogatory lease must be concluded at the time of the tenant’s entry into the premises. The maximum total duration of successive derogatory leases for the same parties, same business, and same premises is three years from the first lease’s start date. Once exhausted, no new derogatory or civil lease is possible.
If the tenant remains in possession and is not formally asked to vacate within one month of the contractual expiry, a full statutory nine-year commercial lease is created automatically (Art. L. 145-5 C. com.). A clause in the lease stating the tenant is on notice is not sufficient — a separate act of notice must be served.
The burden of proving notice was given falls on the landlord. Use a bailiff’s act (acte de commissaire de justice) for certainty. The landlord should avoid any conduct that can be read as accepting a continued occupation after the contractual expiry.
An action to establish that a statutory commercial lease has been created following a derogatory lease is not subject to any limitation period — neither the two-year Art. L. 145-60 period nor the five-year Art. 2224 C. civ. period applies (Cass. 3e civ., 25 May 2023).
For seasonal leases: both parties must avoid actions indicating permanence (utility subscriptions, storing stock between seasons) as these can convert the seasonal arrangement into a full statutory commercial lease. A landlord who does not wish the seasonal arrangement to continue owes no eviction indemnity.

What Is a Derogatory Lease?

A derogatory lease (bail dérogatoire or bail de courte durée) is a commercial occupancy convention that expressly derogates from the nine-year minimum duration of the commercial lease statute. It allows two parties to agree on a commercial occupancy of defined short duration without triggering the full statutory protections — and obligations — of the commercial lease regime.

C. com. Art. L. 145-5, al. 1er (as amended by Pinel Act 2014)
“The parties may, at the time of the tenant’s entry into the premises, derogate from the provisions of this chapter provided that the total duration of the lease or successive leases does not exceed three years. Upon expiry of that period, the parties may no longer conclude a new lease derogating from the provisions of this chapter in order to operate the same business in the same premises.”

Three conditions follow: the derogation must be agreed at the time of the tenant’s entry; the total duration of successive derogatory leases between the same parties for the same business in the same premises must not exceed three years; and once that maximum has been exhausted, no new derogatory lease is possible for the same parties, same business, and same premises.

How It Differs from the Precarious Occupancy Convention

The derogatory lease is frequently confused with the precarious occupancy convention (convention d’occupation précaire), defined in Art. L. 145-5-1 C. com. since Pinel. A precarious convention derives its character from an element of external uncertainty justifying temporary occupation — pending demolition, a sale process, or an administrative constraint. The derogatory lease, by contrast, is not characterised by any precarity: its duration is fixed by the contract. It is simply a commercial lease for a freely chosen duration, subject only to the three-year ceiling.

Duration Rules: The Three-Year Ceiling and Successive Leases

Since the Pinel Act of 18 June 2014, the maximum total duration of successive derogatory leases between the same parties for the same business in the same premises is three years from the date of effect of the first derogatory lease (Cass. 3e civ., 22 October 2020, n° 19-20.443). Once the three-year total has been used, no new derogatory lease, civil lease, or other short-term arrangement is possible for the same parties, same fund, and same premises (Cass. 3e civ., 21 April 2022, n° 21-10.375).

✓ What you can do
Conclude a derogatory lease for any duration up to three years
Conclude successive derogatory leases, provided the cumulated total does not exceed three years from the first lease’s start date
Conclude a full statutory commercial lease at any point
End the relationship at the contractual expiry
✗ Once the 3-year total is exhausted
Conclude another derogatory lease for the same parties, same fund, same premises
Conclude a civil lease under general law as a substitute
Rotate different tenants through the same space to circumvent the rule (risk of fraud characterisation)

The Conversion Trap: When the Derogatory Lease Becomes Statutory

Article L. 145-5, al. 2 C. com. provides that if, at the expiry of the derogatory lease (or at the latest within one month following that expiry), the tenant remains in possession and is allowed to remain, a new lease subject to the full commercial lease statute is created automatically by operation of law, without any act by either party. The Court of Cassation has restated this repeatedly (Cass. 3e civ., 8 June 2017, n° 16-24.045; Cass. 3e civ., 26 March 2020, n° 18-16.113). Once converted, the terms of the derogatory contract become the terms of the statutory lease, subject to the landlord’s right to ask the commercial rent court to fix the rent.

The Landlord’s Obligation: Formal Notice to Vacate

The landlord who does not want the lease to convert must formally notify the tenant to vacate by the contractual expiry date. No particular form is imposed by law, but a bailiff’s act (acte de commissaire de justice) provides the strongest evidence. The Pinel Act introduced a one-month grace period: the notice can be given during the month following the contractual expiry, not only before it. After that one-month window closes without notice, the conversion is definitive.

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Warning — A Clause in the Lease Is Not Enough

A clause in the derogatory lease stating that the tenant is already put on notice to vacate at the contractual expiry does not constitute a valid notice to vacate. An actual act of notice — separate from the lease document itself — must be served before or promptly after the contractual expiry. The burden of proving that notice was given falls on the landlord (CA Bordeaux, 8 April 2024). Relying on a lease clause alone will result in automatic conversion to a statutory commercial lease.

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Practical Point — Keep Documentary Evidence

The mere passage of many months of discussions without a new lease being signed does not constitute tacit agreement that the tenant may remain in possession. Only an express and clear waiver by the landlord creates a statutory lease (Cass. 3e civ., 1 October 2014, n° 13-16.806). Preserve evidence of any notice given and avoid any conduct that could be read as accepting continued occupation.

Requalification: The Lease Speaks for Itself

The qualification of a lease as derogatory cannot depend on the way it is performed, or on its non-performance or defective performance. A tenant who does not pay rent and who acknowledges an indemnity of occupation in a settlement protocol does not thereby waive their right to invoke the commercial lease statute. The qualification of a lease proceeds from its nature and the common intention of the parties, not from its execution (Cass. 3e civ., 15 February 2023, n° 21-12.698).

The Action to Establish Statutory Status Is Not Time-Barred

A tenant who remained in possession after a derogatory lease without having been formally asked to vacate can, at any later point, bring an action to have the statutory commercial lease formally established. The Court of Cassation confirmed that this action is not subject to any limitation period — neither the two-year period of Art. L. 145-60 C. com. nor the five-year general period of Art. 2224 C. civ. applies (Cass. 3e civ., 1 October 2014, n° 13-16.806; Cass. 3e civ., 25 May 2023, n° 21-23.007). The 2023 ruling states as a matter of principle that the action “is not subject to prescription”, giving it the practical force of a public-order provision.

Mandatory Condition Report

The Pinel Act introduced a new requirement: where a derogatory lease is concluded, a condition report (état des lieux) must be drawn up at the time the tenant takes possession and at the time of restitution, contradictorily and amicably between the parties, or by a third party they mandate. It is attached to the lease. If it cannot be established amicably, either party may instruct a bailiff to draw it up, with costs shared equally between landlord and tenant.

The Seasonal Lease

The seasonal lease (bail saisonnier) is mentioned in Art. L. 145-5, al. 3 C. com.: the provisions governing the derogatory lease do not apply to seasonal lettings. The seasonal lease therefore escapes the three-year ceiling on cumulative duration.

The key characteristic is duration: it covers a season, not a full year. Seasonality is not defined in climatic terms but by reference to the commercial activity concerned. A summer season at a Mediterranean resort might run from May to October; a winter sports season from mid-December to March. In localities with both a summer and winter season, the permitted activities for each must be specified in the lease, as they are typically different.

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Warning — The Seasonal Lease Conversion Trap

A seasonal commercial lease can convert into a full statutory commercial lease with seasonal exploitation if the tenant progressively takes on the attributes of permanent occupation: keeping keys between seasons, taking on utility subscriptions (water, gas, electricity), or leaving stock and equipment on the premises with the landlord’s tacit acceptance. Taking on utility subscriptions is a particularly significant indicator. Both parties should be vigilant. If the tenant is deregistered from the RCS at the end of each season, courts will be more inclined to maintain the seasonal character. A landlord who does not wish the seasonal arrangement to continue has no renewal obligation and owes no eviction indemnity.

Practical Checklist: Managing the Derogatory Lease Timeline
Track the three-year total from day one: diary the three-year ceiling from the effective start date of the first derogatory lease. Any subsequent derogatory lease must end before that date. Do not rely on the parties’ informal understanding of when the clock started; calculate from the contractual commencement date.
Serve formal notice to vacate before the expiry, not at it: prepare the bailiff’s act well in advance of the contractual expiry date. The one-month post-expiry grace period is a safety net, not a standard operating procedure. Serving notice promptly before expiry is safer than relying on the grace period.
Do not rely on a lease clause for notice: the derogatory lease document itself cannot serve as the notice to vacate. A separate, standalone act of notice must be served. Keep the signed acknowledgment of that notice on file.
Draw up the condition report at entry and at restitution: the condition report is now mandatory under the Pinel Act. Establish it jointly, or by commissaire de justice if the parties cannot agree. Attach it to the lease at signature. Failure to establish it undermines the parties’ position on restitution claims.
For seasonal leases — no inter-season permanence: document the end of each season formally. The landlord should recover the keys at season end and ensure the tenant removes all stock and equipment. Do not allow utility subscriptions to run between seasons. If the tenant deregisters from the RCS at season end, keep a copy of the deregistration confirmation each year.
Considering a Short-Term Commercial Arrangement in France?

Derogatory leases and seasonal leases offer real flexibility, but the conversion risks require careful management. Our team advises on drafting, notice obligations, and dispute resolution for all types of French commercial occupancy arrangements.

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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 before concluding any commercial occupancy arrangement.