Right of Repentance: Key Points
The right of repentance (Art. L. 145-58 C. com.) allows a landlord who refused renewal to withdraw that refusal and offer renewal instead, thereby avoiding the eviction indemnity. No justification is required. The right passes to a purchaser of the building.
The outer deadline is fifteen days from res judicata of the judgment fixing the indemnity amount (not merely declaring the right to one). For court of appeal rulings, the fifteen-day period starts from the day of delivery, not service. Prepare the repentance notice before the hearing.
Substantive conditions are alternative (not cumulative): the tenant must still be in occupation or must not yet have bought or leased replacement premises with a certain date. Acquiring shares in a lease-holding company is not acquiring a lease for this purpose (Cass. 3e civ., 13 June 2007).
The repentance is irrevocable once exercised (Art. L. 145-59). A conditional repentance has no effect. The landlord bears all procedural costs including lawyers’ and expert fees (not just taxable costs). The new lease runs from the date of repentance, not from lease expiry.
The landlord cannot propose substantially different rent conditions in the repentance — renewal must be offered on the same terms as the expired lease (Cass. 3e civ., 12 September 2019). Exercising repentance waives any pending forfeiture clause proceedings (Cass. 3e civ., 24 January 2019).

What the Right of Repentance Is

The right of repentance is the counterpart of the right of option: while the right of option allows a landlord who offered renewal to later refuse it (generating an eviction indemnity), the right of repentance allows a landlord who refused renewal to later offer it (avoiding the eviction indemnity). Neither right requires justification. The right passes to a purchaser of the building.

The practical context: the landlord refuses renewal, the tenant exercises the right to remain in occupation, proceedings are commenced to fix the eviction indemnity, and the court ultimately sets the amount. If the figure is higher than anticipated, the landlord can opt for repentance — withdrawing the refusal and obtaining a new nine-year lease instead of paying the indemnity. The trade-off is that the landlord bears all the procedural costs of the just-concluded indemnity proceedings, including the opposing party’s costs, expert fees, and lawyers’ fees — not just taxable costs (Cass. 3e civ., 15 February 2023; CA Caen, 6 April 2023).

The Fifteen-Day Window: Timing Is Critical

The right of repentance can be exercised at any time before the final judgment — including before eviction indemnity proceedings are even commenced. The outer deadline is fifteen days from res judicata of the judgment fixing the indemnity amount (not merely declaring the right to an indemnity) (Cass. 3e civ., 9 March 2023). The calculation differs by court level:

Court level When does res judicata run? 15-day window starts
First-instance judgment After the one-month appeal period expires without appeal being filed (judgment is suspensive) 15 days from expiry of appeal period; landlord can also exercise during the appeal period itself
Court of appeal ruling Immediately on delivery (pourvoi en cassation is not suspensive) 15 days from the day of delivery of the ruling, if the ruling date was properly communicated (Art. 450 CPC); otherwise from date of actual knowledge
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Warning — Prepare Before the Hearing, Not After

Where the eviction indemnity is fixed by a court of appeal ruling, the fifteen-day window starts from the day of delivery — not from service of the judgment. Given the brevity of this window and the administrative steps needed to serve a repentance notice, the repentance notice must be drafted and ready to serve before the appeal hearing. The moment the ruling is delivered, the clock is running.

The Substantive Conditions: Tenant Must Still Be in Occupation

The right of repentance requires, alternatively, that: the tenant is still in occupation; or the tenant has not yet bought or leased other premises for their reinstallation. These are alternative conditions (one sufficient), not cumulative ones.

The tenant is in occupation if they have not yet physically vacated and handed back the keys. Irreversible steps toward departure have the same effect as actual departure. Courts have held that signing a new lease, purchasing a new business, or purchasing replacement business premises before the date of repentance precludes the right (subject to the acquisition having a certain date as against the landlord). Acquiring shares in a company that holds a lease does not constitute leasing or purchasing another premises for this purpose (Cass. 3e civ., 13 June 2007).

The departure must be genuine, not engineered to defeat the repentance right: a tenant who vacates abnormally quickly to prevent the landlord from exercising repentance commits an abuse of right, and the landlord’s repentance right survives (Cass. 3e civ., 17 January 1979). The right also applies where no eviction indemnity was offered in the original notice (Cass. 3e civ., 30 November 2005), and motivation to avoid a large indemnity is not abusive (Cass. 3e civ., 9 July 2020).

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Advice for Tenants Wishing to Foreclose Repentance

Execute the departure fully and hand back the keys without advance notice of intent. A tenant who notifies a future intended departure date without simultaneously acting on it does not extinguish the landlord’s right prematurely — only actual departure or irrevocable steps (signed new lease, purchased replacement premises with certain date) do. The safest approach: act first, communicate after.

Effects of the Right of Repentance

A New Lease

Exercise of the right of repentance produces a new lease from the date of the repentance, not from the date the original lease expired. The period between lease expiry and repentance is not treated as tacit extension and does not count toward the twelve-year uncapping threshold. The landlord cannot use repentance exercised more than twelve years after lease expiry to justify uncapping on duration grounds (Cass. 3e civ., 18 December 1985). Other uncapping grounds remain available where they specifically arise at the date of the repentance. The new lease must be on the same terms as the expired lease; the landlord cannot use repentance to propose substantially different rent conditions (Cass. 3e civ., 12 September 2019).

The Occupation Indemnity for the Interim Period

The tenant owes an occupation indemnity for the period between the original lease expiry and the date of repentance, assessed at market rental value under Art. L. 145-28 C. com. (Cass. 3e civ., 27 November 2002). Since the holdover involves genuine uncertainty, courts can apply a substantial precarity discount. The claim to fix the occupation indemnity runs from the date of effect of the original notice and is subject to two-year prescription (Art. L. 145-60). The tribunal judiciaire (not the commercial rent judge) has jurisdiction to fix both the occupation indemnity and the new lease rent in the same proceedings (Cass. 3e civ., 9 June 2016).

Irrevocability and Other Consequences

The repentance is irrevocable once exercised (Art. L. 145-59). A conditional repentance (e.g., “subject to the outcome of the cassation appeal”) has no effect. A repentance served subsidiarily in case a prior retraction is held invalid has been accepted as valid (Cass. 3e civ., 17 November 2016). Exercise of repentance waives any pending forfeiture clause proceedings (Cass. 3e civ., 24 January 2019). The exercise cannot give rise to damages in favour of the tenant: the landlord is exercising a statutory right (Cass. 3e civ., 29 November 2005).

Practical Checklist: Exercising the Right of Repentance
Draft the repentance notice before the appeal hearing: for court of appeal rulings, the fifteen-day clock starts on the day of delivery. Prepare the notice in advance and be ready to serve it immediately if the indemnity amount is higher than the estimated acceptable threshold. Do not wait for a copy of the written judgment.
Verify the substantive conditions immediately before serving: confirm that the tenant is still in occupation and/or has not yet acquired replacement premises with a certain date. Commission a commissaire de justice constat of the premises shortly before serving the repentance to document the tenant’s continued presence.
Do not attach conditions or reservations to the repentance: a conditional repentance has no legal effect. The notice must be unconditional. If you are also pursuing a retraction on other grounds, serve the repentance subsidiarily (in case the primary ground fails) — this structure has been accepted by the Court of Cassation.
Budget for the full costs exposure: the repentance requires bearing all procedural costs of the concluded proceedings, including the opposing party’s lawyers’ fees and expert fees (not just court-ordered taxable costs). Obtain a realistic costs estimate from counsel before deciding whether repentance is economically preferable to payment of the indemnity.
Offer renewal on the expired lease terms only: the repentance must offer renewal on the same terms as the expired lease. Do not attempt to introduce substantially different conditions, revised permitted use clauses, or new rent levels in the repentance notice. Such modifications will be ineffective at best and may challenge the validity of the repentance itself.
Considering the Right of Repentance — or Facing One?

The fifteen-day window after a court of appeal ruling moves extremely fast. Whether you are a landlord deciding whether to exercise repentance before the window closes, or a tenant seeking to take steps that will foreclose the landlord’s option, we advise on the conditions, timing, and financial consequences on both sides.

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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 right of repentance in a French commercial lease.