What the Delivery Obligation Covers
Under Articles 1719 and 1720 of the Civil Code, the landlord is obliged to deliver the leased premises in good repair and in a state fit for the use for which they are let — and to maintain them in that state throughout the lease. The obligation arises from the nature of the contract itself and requires no express clause. It covers the premises as described in the lease, all accessory elements necessary to the use of those premises, and the obligation not to alter the physical layout of the leased property during the term (Art. 1723).
The scope of "what was let" extends further than might be expected. Courts have held the delivery obligation to cover:
- Access to the premises, including a right of way — if a previous access route is blocked by a new owner of the relevant land, the landlord is in breach (Cass. 3e civ., 30 June 2021)
- Physical handover of keys (Cass. 3e civ., 3 December 2020, n° 19-18.816)
- Scaffolding erected by the landlord for works and the theft risk it creates (Cass. 3e civ., 28 February 1990)
- Water pressure equipment in the building and the noise it generates (Cass. 3e civ., 4 December 1991)
- Maintenance of common parts — including in a shopping centre context (Cass. 3e civ., 19 December 2012, n° 11-23.541)
- Electrical installations (Cass. 3e civ., 20 January 2009)
- Commercial signage — landlord generally cannot refuse the tenant the right to install signage, since it is an attribute of the fonds de commerce (CA Paris, 5 January 2011); a clause requiring prior consent is valid but an unjustified refusal constitutes a breach
- Compliance with administrative requirements — letting premises for a use that requires planning or regulatory authorisations not yet obtained is a breach (CA Paris, 17 January 2007); premises built without a building permit likewise (Cass. 3e civ., 1 June 2022, n° 21-11.602)
The obligation is permanent — it continues after a refusal of renewal while the tenant remains in occupation pending eviction indemnity payment (Cass. 3e civ., 28 November 2019). It also follows the building: both the original landlord and the new owner after a sale are responsible for works necessary to comply with delivery obligations that existed before the transfer (Cass. 3e civ., 14 November 2007; Cass. 3e civ., 21 February 2019).
It is for the landlord to prove that the delivery obligation was met. The burden of proving that keys were handed over, that the premises were in a fit state at entry, and that required administrative approvals had been obtained lies with the landlord, not the tenant. A condition report drawn up at entry is therefore as much in the landlord's interest as the tenant's.
Compliance Works: Transfer to Tenant — What Works and What Does Not
The delivery obligation requires the landlord to carry out all works indispensable for the use contemplated in the lease at entry. Where the lease authorises "all commercial activities," the landlord is only required to carry out works enabling general commercial use — not the specific fit-out for the particular activity the tenant intends to operate (Cass. 3e civ., 23 June 1993; Cass. 3e civ., 6 March 2012). Compliance works can be transferred to the tenant by an express clause, but courts interpret such clauses strictly and require them to be specific rather than general.
| Clause type | Effective? | Key authority |
|---|---|---|
| "Tenant takes premises as found, no works required from landlord" | No — ineffective to exclude delivery obligation | Cass. 3e civ., 11 Oct. 2018, n° 17-18.553 |
| "Tenant declares premises visited and perfectly compliant with their purpose" | No — ineffective if premises are entirely unfit for purpose | CA Paris, 18 May 2011 |
| "Tenant to obtain all administrative authorisations for their use" | No — does not excuse landlord from safety compliance works absent an express works transfer clause | CA Metz, 14 June 2011 |
| General compliance clause + "tenant to carry out all works for their activity" | No — insufficient without express identification of specific works transferred | CA Nancy, 1 June 2011 |
| Express clause: "Tenant takes in current state; landlord liable only for Art. 606 structural repairs; tenant bears all regulatory compliance works including fire safety door replacement and electrical upgrades" | Yes — valid and effective transfer where specific works are identified | Cass. 3e civ., 6 Nov. 2001; Cass. 3e civ., 19 Dec. 2019 |
| Express clause transferring all maintenance, repairs (including Art. 606 major), and future regulatory compliance works to the tenant | Yes — parties can transfer even Art. 606 works (Art. 1720 not mandatory); full transfer valid | Cass. 3e civ., 28 May 2020, n° 19-14.230 |
Even where the lease transfers all structural and compliance works to the tenant, the landlord remains responsible for works necessitated by hidden defects (vices cachés) affecting the structure of the building (Cass. 3e civ., 9 July 2008, n° 07-14.631). The delivery obligation in this respect is inherent to the contract and cannot be contractually transferred. A landlord who is aware of a structural defect and says nothing faces both civil liability and potential criminal exposure.
Drafting Works Clauses: What the Courts Require
The consistent message from thirty years of case law is that exoneration clauses must be drafted with precision to be effective. "As is" language, declarations of fitness by the tenant, and generic "tenant to carry out all works" provisions all fail when the landlord has not specifically identified the works being transferred. Courts interpret ambiguous exoneration clauses against the landlord, since the landlord is the party obligated by the stipulation.
In shopping centres and large commercial complexes, the delivery obligation extends to the landlord's obligation to maintain the common areas and the general attraction of the centre. The 2012 Cour de cassation ruling (Cass. 3e civ., 19 December 2012, n° 11-23.541) confirmed that serious deterioration of the complex — blocked toilet access, debris obstructing the car park — constitutes a material breach of the delivery obligation by the landlord-owner of the centre towards individual tenants. Centre landlords should not assume that their delivery obligation is discharged once individual units are handed over.
- Before letting: verify all required administrative authorisations (planning, change of use, ERP classification) have been obtained for the intended commercial activity. Check whether the building predates compliance requirements (electrical, fire, accessibility) and assess what works are required before handover.
- Condition report at entry (Arts. 1719–1720): burden of proving delivery is on the landlord. Draw up a detailed condition report at entry. Delivery of keys must be documented. This protects the landlord and fixes the baseline for the tenant's works obligations under any transfer clause.
- Works transfer clause: must identify the specific works categories transferred; must include an express discharge from the delivery obligation; should be backed by a technical condition report. Generic "as is" language and "tenant to carry out all works" provisions are consistently ineffective (Cass. 3e civ., 11 Oct. 2018; CA Nancy/Metz 2011). Full transfer of even Art. 606 works is valid where clearly expressed (Cass. 3e civ., 28 May 2020).
- Hidden structural defects (vices cachés): cannot be contractually transferred — landlord always bears liability (Cass. 3e civ., 9 July 2008, n° 07-14.631). A landlord aware of a structural defect who does not disclose it faces civil liability and potential criminal exposure. This limit is absolute.
- Continuous obligation: delivery obligation continues throughout the lease. Mid-lease changes in regulatory standards that require new works are the landlord's responsibility unless expressly transferred. Obligation continues after refusal of renewal during occupation pending eviction indemnity payment (Cass. 3e civ., 28 Nov. 2019).
- On a building sale: both the selling landlord and the new owner are responsible for pre-transfer delivery-related works (Cass. 3e civ., 14 Nov. 2007; 21 Feb. 2019). The sale agreement must clearly allocate this responsibility. A buyer who purchases a building with existing delivery obligation breaches cannot simply ignore them — they become bound by the obligation on transfer.
Whether you are a landlord seeking to enforce a works transfer clause or a tenant whose premises are unfit for their intended use, we advise on the scope of the delivery obligation and the effectiveness of the lease provisions in dispute.
Book a ConsultationThis 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 landlord delivery obligations and works allocation in a French commercial lease.
Key Legal References
Landlord’s core delivery obligation: deliver premises fit for intended use and maintain them throughout the lease
Landlord cannot alter the physical layout of the leased premises during the term
Shopping centre landlord: delivery obligation extends to maintenance of common parts; deterioration constitutes a breach
Premises built without a building permit: landlord in breach of delivery obligation
Delivery obligation continues after refusal of renewal during occupation pending eviction indemnity payment
Generic ‘as is’ clause ineffective to exclude delivery obligation; specific works must be identified
Express clause transferring all maintenance and regulatory compliance works to tenant is valid even where it includes Art. 606 major structural repairs
Hidden structural defects (vices cachés): cannot be contractually transferred; landlord always bears liability regardless of clause
Old and new landlord after a building sale are both responsible for pre-transfer delivery-related works
