Two Categories of Qualifying Property
Article L. 145-1, I of the Code de commerce restricts the statute to immovable property and premises in which a fonds de commerce is operated. Article L. 145-1, I, 2° extends it to bare land on which commercial, craft, or industrial buildings exist or will be constructed, with the landlord's express consent. A movable asset cannot form the object of a commercial lease. Neither can an immovable that provides access or exposure without meeting the stability and permanence requirements.
What Counts as a "Local": Stability and Permanence
The Code de commerce does not define "local." Courts have built the definition through case law. The classical formulation — a closed and covered space (lieu clos et couvert) — has been significantly modernised. In a landmark QPC ruling of 20 March 2014, the Court of Cassation stated expressly that the application of Article L. 145-1 is not subject to a requirement of a closed and covered space: what matters is that the emplacement is stable and permanent, such that the landlord cannot at will modify the surface, situation, or configuration (Cass. 3e civ. [QPC], 20 March 2014, n° 2014-005334).
- Car parks (open-air or uncovered areas used for parking, not enclosed retail spaces)
- Walls and rooftops (Cass. com., 11 May 1949; 20 July 1954)
- Exhibition surfaces (open display areas without fixed enclosure)
- Shop windows (display structures, not trading spaces)
- Supermarket stands and emplacements without stable, permanent physical installation
- Dark stores and dark kitchens — no clients received, no retail sales on site
- Car-wash with technical unit and cover resting on sealed pillars, not easily dismantled (Cass. 3e civ., 23 Nov. 2004)
- Emplacement under a building's porch — assessed as stable and permanent (Cass. 1re civ., 30 March 2005)
- Two containers connected by a tin roof — fixed, durable, connected to utility networks, used as office and workshop (Cass. 3e civ., 10 Sept. 2020, n° 19-12.814)
- Any anchored, permanently installed structure operated continuously as a fixed commercial emplacement, regardless of physical form
The decisive question is not whether the space has walls and a roof in the conventional sense, but whether it is fixed in place, durable, and intangible — such that the landlord cannot unilaterally alter its extent or configuration. A structure that can be moved, dismantled at will, or whose boundaries are determined solely by the landlord's choice will not qualify. A structure that is anchored, connected to networks, and operated continuously as a fixed commercial emplacement is increasingly likely to qualify, whatever its physical form.
Dark Stores and Dark Kitchens: Excluded
The Conseil d'État ruled that dark stores — premises used for receiving and temporarily storing goods for rapid delivery to customers — are warehouses under urban planning law, not commercial premises (CE, 6e and 5e ch., 23 March 2023, n° 468360). This was confirmed by ministerial order of 22 March 2023. Dark kitchens are classified as "online-sales dedicated kitchens" within the tertiary sector — not commercial premises. The Court of Cassation has consistently held that the commercial lease statute does not apply to a warehouse, since there is no fonds de commerce operated there in the statutory sense (Cass. 3e civ., 5 July 1995; 16 June 2004). The common thread: no clients are received, no sales take place in the premises.
Operators of dark stores and dark kitchens who have signed what is described as a commercial lease should not assume they benefit from the statutory protections. Courts look at what actually takes place in the premises, not at the label on the contract. If no clients are received and no retail sales occur on site, the statute does not apply and the operator has no right to renewal.
Bare Land: When It Qualifies
A bare land plot (terrain nu) can be the object of a commercial lease only where commercial, craft, or industrial buildings have been or will be constructed on the land, with the express consent of the landlord (Art. L. 145-1, I, 2°). A simple car park or sports ground without commercial annexe buildings does not qualify. The construction must be genuine — mobile caravans, removable constructions, and temporary fencing alone do not suffice (CA Versailles, 2 October 1987).
Leases over bare land frequently include either a demolition clause (clause d'arasement) — requiring the tenant to demolish at the end of the lease — or an accession clause (clause d'accession), under which the building becomes the landlord's property on renewal. These have very different consequences: an accession clause triggers ownership transfer to the landlord at the moment of renewal and can result in a sharp rent increase at the first renewal following construction. A demolition clause avoids accession but imposes a demolition obligation. Leases must not confuse the two.
Principal Premises vs Accessory Premises
The principal local is where the fonds de commerce is operated and where the clientele is received. The unité d'exploitation theory allows a single principal local to encompass multiple leases covering several buildings or plots forming part of the same exploited entity (Cass. 3e civ., 7 July 2009). An accessory local is used for the needs of the principal establishment (storage, workshops, offices) but is not open to clients. For it to benefit from the statute, two conditions must be satisfied: same landlord as the principal; and its loss must jeopardise the operation of the fonds de commerce.
| Type of premises | Clients received? | Qualifies as accessory? | Registration required? |
|---|---|---|---|
| Storage warehouse (same landlord) | No | Yes — if loss would compromise the fonds | No — no client contact, no secondary registration needed |
| Workshop or back-office (same landlord) | No | Yes — depending on necessity to the fonds | No — same rule |
| Garage used to store goods and equipment | No | No — statute denied (Cass. com., 10 Nov. 1965) | N/A |
| Accessory in different ressort from principal | No | Yes — only if fonds directly exploited there by tenant or employee | Secondary registration required at the location of the accessory premises |
Where there is any doubt about whether a secondary local may receive clients, or where the tenant wishes to preserve maximum protection, a secondary or complementary registration at the RCS or RNE for the location of that premises should be taken. The cost is minimal; the consequences of not registering when a court later finds that clients were received at the premises are potentially severe.
- Stability and permanence test (Cass. 3e civ. QPC, 20 March 2014): is the premises fixed, durable, and intangible? If the landlord can easily dismantle, relocate, or unilaterally alter its extent, it may not qualify as a local.
- Dark stores and dark kitchens: do not assume the statute applies — it does not (CE, 23 March 2023; Cass. 3e civ., 16 June 2004). No clients received + no retail sales on site = no fonds de commerce = no commercial lease statute.
- Bare land (Art. L. 145-1, I, 2°): must have express landlord consent to construction; construction must be genuine (not removable). Distinguish demolition clause (clause d'arasement) from accession clause — they have very different consequences at renewal.
- Accessory premises conditions: same landlord as principal premises; loss must jeopardise the operation of the fonds. If in a different ressort, secondary RCS/RNE registration required at the accessory location. Register where in doubt — minimal cost, potentially severe consequences of not registering.
Whether you are assessing a new location, reviewing a lease on accessory premises, or dealing with a dark store dispute, our team advises on the scope and application of French commercial lease law.
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 before concluding a French commercial lease.
Key Legal References
Property requirement: immovable premises where a fonds de commerce is operated
Bare land with construction of commercial buildings: qualifies with express landlord consent
Stability and permanence test: application of Art. L. 145-1 not subject to requirement of a closed and covered space
Two containers connected by a tin roof qualify as a local by reason of fixity, durability, and connection to utility networks
Dark stores are warehouses under urban planning law, not commercial premises
Warehouse without client reception: no fonds de commerce, statute does not apply
Accessory premises assessment criteria: same landlord; loss would jeopardise the fonds de commerce
Several buildings or plots can form a single principal local under the unité d’exploitation theory
