The Landlord’s Duty in French Shopping Centres: Footfall, Vacant Units and the Limits of Liability

The Baseline Obligation: What Every Landlord Owes

Article 1719 of the Civil Code defines the landlord's fundamental obligations in any lease: to deliver the leased property, to maintain it in a condition fit for its intended use, and to ensure the tenant's peaceful enjoyment of it throughout the lease term. What they do not include, according to consistent jurisprudence of the Cour de cassation over more than thirty years, is any duty to maintain a commercially favourable environment for the tenant. A landlord who owns a shopping centre is not, by virtue of that ownership alone, obliged to ensure that the centre retains its footfall, that all units remain occupied, or that the commercial mix remains attractive. This principle has been repeatedly affirmed — in 2000, 2013, 2019, 2020, and 2021.

Vacant Units and the "Dents Creuses" Problem

The most common source of dispute between shopping centre tenants and their landlords concerns vacant units. When a portion of the gallery stands empty, the commercial atmosphere of the centre deteriorates, footfall declines, and the trading performance of remaining tenants suffers. The Cour de cassation held as early as 1994 that a tenant cannot reproach the landlord for the existence of empty units prejudicial to the operation of the centre — the so-called dents creuses — unless the lease expressly obliges the landlord to ensure full and permanent occupation. A 1993 ruling reinforced this in the context of anchor departure: the continued operation of specific anchors was not a determining condition of the gallery leases, and the commercial decline was attributable to an external cause rather than to any breach by the landlord.

When the Lease Goes Further: The Obligation de Moyens

Where a landlord commits contractually to maintaining a favourable commercial environment, or to using reasonable efforts to fill vacant units, that commitment is binding. The critical qualification is that these obligations are obligations of means — obligations de moyens — not obligations of result. The landlord must take reasonable and diligent steps towards the agreed objective, and if those steps are taken and fail to produce the desired result, there is no liability. The Cour de cassation confirmed this standard in 2016: a landlord who had given an exclusive mandate to a recognised management company to find tenants for vacant units, and who had initiated a restructuring project, was held to have satisfied its obligation de moyens despite continued vacancies.

What "Reasonable Steps" Means in Practice

The content of the obligation de moyens is assessed case by case. The appointment of a professional management agent with a genuine mandate to re-let vacant units is consistently treated as satisfying the diligence requirement. A programme of physical improvement and a good maintenance standard in common areas demonstrate ongoing commitment. Responsiveness to specific concerns raised by tenants counts positively. Conversely, a landlord who allows vacant units to remain boarded up for years without active re-letting efforts, or who restructures the commercial mix downmarket in a manner inconsistent with the positioning the tenants contracted on, risks being found to have fallen below the standard.

The High-End Centre Exception: Delivering What You Promised

Where the landlord has marketed the centre as a prestigious, high-quality retail destination and tenants have contracted on the basis of that positioning, a subsequent decision by the landlord to accept lower-quality tenants or restructure towards a mass-market format can constitute a breach of the delivery obligation under Article 1719 — even without any express commerciality clause. The Court of Appeal of Paris applied this reasoning in a 2020 decision: a landlord who had originally let units in an upmarket centre, subsequently left gallery sections without decoration, covered empty units with basic white panels, and pivoted towards mass-market and outlet-format tenants. The court held this constituted a failure to deliver the premises in a centre with high-end presentation as promised. The distinction matters: the delivery obligation arises from Article 1719 itself, without any need for a specific contractual commitment. This creates a duty of consistency: if the landlord defines the nature of the centre in the lease or in the pre-contractual representations, the landlord must deliver and maintain what it described.

The Mandatory Common Areas Duty

While the obligation to maintain a favourable commercial environment is purely contractual, the obligation to maintain the common areas of a shopping centre has a different status: it is mandatory and derives directly from Article 1719 of the Civil Code. The Cour de cassation confirmed this in a landmark 2012 ruling: the general maintenance obligation imposed by Article 1719 applies to the common areas of a shopping centre or covered market, because those areas constitute necessary accessories to the leased premises. A landlord cannot entirely exclude common area maintenance obligations by contract — Article 1719 as interpreted in 2012 provides a floor below which the lease cannot go. This position was confirmed again in January 2020.

The standard required is functional adequacy. Courts have found a breach where a centre had no working toilets, no accessible car park due to construction debris, and a state of general dilapidation. Courts have not found a breach where the common areas showed normal wear and aging without systemic neglect, particularly where the landlord could demonstrate a programme of maintenance and investment.

The Copropriété Complication

Where a shopping centre is structured as a copropriété, the landlord's ability to fulfil even the mandatory maintenance obligation is limited by the governance structure. The syndicat des copropriétaires is responsible for the common areas, not the individual unit owner acting as landlord. A landlord in this position can exonerate itself from personal liability for common area defects by demonstrating that it has taken all necessary steps within the syndicat to bring the deficiency to an end. Passive acceptance of a deficient common area environment — without escalation within the syndicat structures — will not suffice. The landlord must be an active agent within the governance process, not merely a passive victim of it.

Contractual Architecture: How Landlords Limit Liability

Current-generation shopping centre leases have developed a highly refined liability limitation architecture operating on three levels. First, an express disclaimer: the tenant acknowledges having assessed the commerciality of the centre independently and accepts the economic risks resulting from changes in trade area, competition, and the dynamics of other tenants. Second, an express exclusion of liability for non-operation of other units: the landlord is stated to bear no responsibility for the state of occupancy of the centre. Third, exclusion of liability for promotional and animation outcomes where the landlord manages a marketing fund. These clauses are generally effective under French law as long as they are clearly drafted and do not attempt to exclude the mandatory obligations under Article 1719 — the delivery obligation and the common areas maintenance duty — which cannot be contracted away.

This article is for general information and educational purposes only. It does not constitute legal advice. The legal framework described reflects French law and jurisprudence as at 2025. Landlord liability disputes in French shopping centres involve complex factual and legal analysis. Always seek qualified legal advice before any litigation or claim.