Subletting Checklist
Subletting in a French commercial lease requires two separate steps: (1) the landlord’s express consent and (2) a formal invitation to the landlord to participate in the sublease deed. These are independent obligations — neither alone is sufficient.
Missing the participation invitation is an irreparable breach: it cannot be cured after the fact. Missing consent can be cured by terminating the sublease within one month of the landlord’s formal demand. Both obligations must be repeated at each renewal of the sublease, not only at inception.
Irregular subletting is a serious and legitimate reason for the landlord to refuse renewal without paying an eviction indemnity (Art. L. 145-17, I, 1° C. com.). This right was upheld even where the subletting had ceased by the time of the renewal (CA Paris, 10 April 2019).
Where the sub-rent exceeds the main rent, the landlord can demand upward adjustment of the main rent (Art. L. 145-31, al. 3 C. com.). Two-year prescription runs from the date of knowledge of the sub-rent, not merely from knowledge of the sublease.
The subtenant’s direct renewal right against the landlord (Art. L. 145-32, al. 2 C. com.) requires: a regular sublease (both formalities observed); a commercial main lease; actual termination of the main lease; and absence of an indivisibility clause in the main lease.

The Starting Principle: Subletting Is Forbidden Unless Authorised

Unlike ordinary civil leases, where subletting is permitted unless the lease says otherwise, commercial leases reverse the default: subletting is forbidden unless the lease expressly permits it or the landlord gives specific consent (Art. L. 145-31, al. 1 C. com.). The prohibition exists because the commercial lease statute gives the tenant a commercially valuable right to renewal — subletting would allow the tenant to profit from that statutory protection by sub-letting what does not belong to them.

The landlord’s right to refuse is absolute. Unlike assignment (where a landlord who refuses without reason may face judicial override), the landlord who refuses to authorise subletting cannot be forced to accept by a court, however unreasonable the refusal may appear.

What Counts as Subletting

A sublease exists whenever the tenant grants a third party the right to occupy all or part of the premises in exchange for any form of consideration — cash or in kind. The following are not subletting: contracts for use of space that are merely accessory to a broader service (hotel operation, recording studio hire for a session, showroom arrangements, privatisation of a restaurant for an event); agreements by which the tenant authorises a third party to sell products within the premises in exchange for a commission, where the tenant retains control; management leases (location-gérance), which relate to the business as a whole (Cass. 3e civ., 19 March 2008); and company registered office domiciliation that involves no actual occupation (Cass. 3e civ., 7 February 1996).

The Two Formalities: Both Are Mandatory

Where subletting is authorised, two distinct steps are required under Article L. 145-31. They are separate obligations, not interchangeable.

1
The Landlord’s Consent
Consent may come from a clause in the lease (general authorisation) or from a specific agreement given for the particular sublease. The consent must be express. Mere knowledge of the subletting, prolonged failure to object, or responding to sub-tenants’ complaints without protest are not consent. Tacit consent has been found only in positive acts leaving no doubt as to the landlord’s intention.
2
The Invitation to Participate in the Deed
Even where the landlord has consented, the tenant must separately notify the landlord of their intention to sublet by registered letter (RAR) or bailiff’s act. The landlord then has 15 days to confirm participation or decline. If the landlord declines or does not respond, the sublease may proceed without them. This formality must be repeated at each renewal of the sublease. A general annual notification of sub-tenants does not satisfy the requirement.
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Warning — Missing the Participation Invitation Is an Irreparable Breach

Failure to invite the landlord to participate in the sublease deed is an instantaneous breach. It cannot be regularised after the fact — not by subsequently inviting the landlord, not by the landlord’s later silence, and not by any other means short of the landlord’s express positive acts demonstrating acceptance (Cass. 3e civ., 2 November 1982; Cass. 3e civ., 9 July 2003). Authorisation of subletting in a lease clause does not imply waiver of this participation right. The participation invitation applies not only to the original sublease but to each renewal of the sublease.

Sanctions for Irregular Subletting

An irregular subletting exposes the main tenant to three potential consequences:

  • Forfeiture clause: if the lease includes a forfeiture clause covering the subletting obligation, the landlord can invoke it. The breach is generally treated as sufficiently serious. The tenant must end the irregular sublease within one month of formal notice — but only where the irregularity is absence of consent; failure to invite participation cannot be regularised.
  • Judicial termination: the landlord can seek judicial termination on the basis of a serious and legitimate breach, without needing to invoke a contractual clause.
  • Refusal of renewal without eviction indemnity: at the end of the lease, the landlord can refuse renewal on the basis of serious and legitimate reason under Art. L. 145-17, I, 1° C. com. Irregular subletting is a consistent ground in case law, upheld even after the subletting had ceased (CA Paris, 10 April 2019).

An irregular subletting does not cause direct loss to the landlord merely by existing — the landlord must take positive steps to obtain termination and indemnification (Cass. com., 8 March 2023, n° 20-20.141).

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Practical Point — Subtenant’s Recourse

A subtenant who loses occupation as a result of an irregular subletting may claim damages from the main tenant, from the drafter of the irregular sublease deed, or from both jointly, depending on fault. Where the sublease was drafted by a notary or lawyer without flagging the formality requirements, professional liability may be engaged. Subtenants should obtain confirmation that both formalities have been completed before signing any sublease and before investing in fit-out or goodwill.

The Landlord’s Rent Adjustment Right

Where the sublease rent exceeds the main lease rent, the landlord may demand an upward adjustment of the main rent to match the sub-rent (Art. L. 145-31, al. 3 C. com.). This applies to total subletting and, in proportional terms, to partial subletting where the sub-rent per square metre exceeds the main rent per square metre. The adjustment right exists whether the subletting is regular or irregular — but exercising it in the case of an irregular subletting risks being interpreted as retroactive consent.

The adjustment right is subject to the two-year prescription period of Art. L. 145-60, running from the date on which the landlord had knowledge of the sub-rent (not merely of the existence of the sublease: Cass. 3e civ., 2 March 1988; Cass. 3e civ., 28 May 1997). The procedure follows the same rules as rent revision: a prior mémoire is required, and proceedings before the commercial rent judge become available only after one month has elapsed from receipt (Cass. 3e civ., 9 July 2020, n° 19-16.290). The adjustment applies only for as long as the sublease continues.

The Subtenant’s Rights: Two Distinct Renewal Claims

Against the Main Tenant

A sublease between the main tenant and the subtenant is an independent contract. If it meets the conditions of the commercial lease statute, the subtenant can claim the benefit of that statute in their relationship with the main tenant — including the right to seek renewal of the sublease. This right is limited to the duration of the main lease: if only three years remain on the main lease, the subtenant’s renewal right is limited to three years. A subtenant who refuses to vacate when the main lease ends is an occupant without title and can be ordered to pay full occupation indemnity, even if only partial occupancy was involved (Cass. 3e civ., 9 July 2020, n° 19-15.874).

Against the Landlord: The Direct Renewal Right

When the main lease ends without renewal, the subtenant has a direct renewal right against the landlord under Art. L. 145-32, al. 2 C. com., but only if four conditions are met:

  • The main lease was a commercial lease governed by the statute;
  • The main lease has actually ended (the right does not arise during tacit extension);
  • The subletting was regular (both formalities observed) or subsequently ratified by the landlord’s positive acts;
  • The leased premises are not expressly designated as indivisible in the main lease.

The indivisibility condition matters in practice: where the lease stipulates the premises are a single, indivisible whole, the subtenant cannot claim a direct right over part of them — a practical protection for landlords who do not wish to be forced to split management of a single commercial unit between two separate tenants.

Practical Checklist: Before Subletting
Step 1 — Check the lease for an authorisation clause: does the lease contain a general authorisation to sublet (with or without conditions)? If yes, the consent requirement is satisfied for authorised sublets. If no, obtain express written consent from the landlord for the specific sublease before proceeding to Step 2.
Step 2 — Send the participation invitation separately: even where consent is already in place, send a separate registered letter (RAR) or bailiff’s act to the landlord inviting them to participate in the sublease deed. Wait 15 days. Preserve evidence of service and any response (or non-response).
Step 3 — Check whether the sub-rent exceeds the main rent: if the proposed sub-rent per square metre exceeds the main rent per square metre, the landlord can demand upward rent adjustment. Assess this before fixing the sub-rent and consider structuring accordingly if the main rent exposure matters.
Step 4 — Repeat both steps at each renewal of the sublease: the formalities apply not only at inception but at each renewal. A sublease that was perfectly regular at execution becomes irregular if the participation invitation is not sent before the renewal of the sublease.
For subtenants — verify regularity before investing: confirm that both formalities have been completed before signing and before committing to fit-out expenditure or business goodwill. Check the main lease for an indivisibility clause if you intend to rely on a direct renewal right against the landlord at the end of the main lease.
Structuring or Reviewing a Subletting Arrangement?

Whether you are a main tenant seeking to sublet, a subtenant reviewing your renewal rights, or a landlord assessing the impact of a subletting on the main rent, we advise on the full formality sequence and the commercial and legal consequences of each step.

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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 subletting in a French commercial lease.