The First Consequence: Inopposability to the Landlord

Where a lease assignment is concluded without the required opposability formalities — without the notification or acknowledgement required to make the assignment effective against the landlord — the immediate consequence is inopposability. The landlord is not bound by the assignment and continues to treat the original tenant as its only contractual counterpart. From the landlord's perspective, the assignee does not exist as a party to the lease. Inopposability has cascading effects: the original tenant remains liable to the landlord for rent and for all lease obligations despite having assigned those obligations by contract to the assignee, and the assignee — while entitled to use the premises during the period the original tenant retains possession — has no rights against the landlord directly and cannot claim the protections of the commercial lease statute, including the right to renewal.

The original tenant who has assigned the lease without satisfying the opposability formalities is in an uncomfortable position: it has no practical use for the lease, yet it remains legally exposed for all rent and repair obligations that the assignee fails to discharge. Where the assignee defaults, the landlord can pursue the original tenant directly.

Judicial Termination: The Gravity Threshold

An irregular assignment — one that violates a restriction clause in the lease, proceeds without the required landlord consent, or is concluded without the formalities imposed by the lease — can be relied upon by the landlord to seek judicial termination of the main lease. Article 1224 of the Civil Code requires that the breach relied upon be of sufficient gravity to justify termination. Courts assess this contextually. An assignment concluded in deliberate disregard of an agrément clause, or with active concealment of the transaction from the landlord over several years, has consistently been held to justify termination (Cass. com. 15-5-1962; Cass. 3e Civ. 19-4-2005). An assignment that violated a formal requirement but produced no practical prejudice to the landlord — where the landlord had been fully informed through other channels and had expressed satisfaction — has been held insufficient (Cass. 3e Civ. 5-1-2012 n° 10-20.179).

Where the lease contains a clause résolutoire de plein droit, that clause can also be invoked for an irregular assignment. The one-month grace period for remedying the breach has limited practical effect where the irregularity is the type that cannot be remedied after the fact — as is the case with a failure to obtain an agrément that was required in advance.

Refusal of Renewal Without Eviction Indemnity

Even where the landlord does not immediately terminate the lease for an irregular assignment, it retains the option of relying on the irregularity at the renewal stage. Under Article L 145-17 of the Code de commerce, the landlord may refuse renewal without paying an eviction indemnity if it can demonstrate a motif grave et légitime against the outgoing tenant. An irregular assignment has been consistently recognised as a serious and legitimate ground. This deferred use of the remedy is strategically valuable for landlords: rather than incurring the cost and uncertainty of termination proceedings during the lease, the landlord can wait until the renewal stage and then deploy the irregular assignment as a ground for non-renewal at no financial cost to itself. Courts have upheld this approach even where the irregularity dated back to the early years of the lease and had apparently been tolerated for an extended period, provided the landlord had not positively waived the right to rely on it.

The Evicted Assignee's Remedies Against the Assignor

Where the assignee is evicted from the premises as a consequence of an irregular assignment — either because the lease is terminated or because renewal is refused — it has a damages claim against the assignor. The assignor warranted, by entering into the assignment deed, that the assignee would be able to occupy the premises for the duration of the lease and to claim renewal. Where the irregularity was caused by the assignor's own failure — failure to secure the required agrément, failure to complete the required formalities — the assignor's eviction guarantee is engaged.

The assignee's own conduct is relevant to quantum. A commercial buyer who failed to investigate the lease conditions, accepted the assignment without verifying that the required consent had been obtained, and omitted to check that formalities were completed, may be held to have contributed to its own loss. The courts have awarded partial rather than full compensation in such cases. Importantly, the eviction guarantee runs with the lease right: successive assignees of the same lease who are evicted by the same root irregularity can also claim against the original assignor, not just against the person who directly sold the lease to them (Cass. 3e Civ. 4-7-2024 n° 23-13.822).

The Scope for Regularisation

Whether an irregular assignment can be regularised depends entirely on the type of irregularity. Procedural defects — such as a failure to notify the landlord under Article 1690 — can be cured by a subsequent notification: the assignment becomes opposable to the landlord from the date of the cure, even if it was not opposable before. This means the assignee's position is vulnerable between the date of the irregular assignment and the date of cure, but can be secured going forward.

Substantive defects are different. A failure to obtain an agrément that was required in advance cannot be cured retroactively: the landlord's right to vet the proposed assignee before the transaction is precisely the protection that was circumvented. However, the landlord can choose to waive the irregularity by expressly or tacitly accepting the assignee after the fact. Accepting rent from the assignee over a sustained period, addressing correspondence to the assignee as the tenant, or explicitly acknowledging the assignment in writing all constitute waiver. The waiver must be unequivocal: mere knowledge of the irregular assignment does not waive the right to rely on it. A positive act of acceptance is required (Cass. 3e Civ. 5-5-1975; 10-5-1989).

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The Original Tenant's Residual Position

Where an assignment is inopposable to the landlord, the original tenant has not ceased to be the contractual tenant from the landlord's perspective. The Cour de cassation has held that this means the original tenant retains the right to assign the lease again — either back to the original assignee once the formalities are completed, or to a different person (Cass. com. 10-6-1959; Cass. 3e Civ. 22-3-1995). This theoretical right has limited practical value while the assignee is in occupation, but it confirms that the original tenant's legal position is not destroyed by the irregular assignment. The original tenant must, however, continue paying rent to the landlord in the meantime: failure to do so allows the landlord to pursue termination regardless of the assignment irregularity.

Irregular French Commercial Lease Assignments: Consequences and Remedies
Failure to complete opposability formalities: assignment is inopposable to the landlord; original tenant remains liable for all lease obligations despite the assignment.
Violation of restriction clauses or consent requirements: grounds for judicial termination if breach is of sufficient gravity (C. civ. Art. 1224). Courts assess contextually.
Concealment, deliberate circumvention, or structural bypassing of an agrément requirement consistently justifies termination; a technical breach that caused no prejudice and where the landlord was fully informed may not.
Alternative to termination: refusal of renewal without eviction indemnity under Art. L 145-17 (motif grave et légitime); can be deployed at renewal even if the irregularity dates back years.
Evicted assignee has damages claim against assignor; quantum reduced by assignee's own contributory failure to investigate or insist on regularisation before accepting the assignment.
The eviction guarantee benefits successive assignees against the original assignor for the same root irregularity (Cass. 3e Civ. 4-7-2024 n° 23-13.822).
Procedural defects (Art. 1690 formalities) can be cured prospectively; substantive defects (failure to obtain agrément) cannot be cured retroactively.
Landlord can waive the right to rely on irregularity by unequivocal positive conduct; mere knowledge is not sufficient waiver (Cass. 5-5-1975; 10-5-1989).
Original tenant retains the right to re-assign the lease where the previous assignment was inopposable — but must continue paying rent in the meantime.
Facing an Irregular Lease Assignment in France, or Advising on One?

Whether you are a landlord assessing your options, an assignee whose position is threatened, or an assignor facing a damages claim, the consequences of an irregular assignment are time-sensitive and fact-specific.

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This article is for general information and educational purposes only. It does not constitute legal advice. Always seek qualified legal advice before taking or responding to action on an irregular assignment.