1 month
The single most important number in this article: if the tenant remains and is left in possession for more than one month after the bail dérogatoire expires, a full statutory commercial lease arises automatically by operation of Art. L 145-5 al. 2 C. com. — irreversibly.
Keys returned
The only act that establishes the tenant's departure for legal purposes. Physical absence, removal of goods, and non-use of the premises do not suffice. Landlords must acknowledge receipt of keys in writing. Tenants must return keys formally before the deadline.
No RCS required
Unlike the general conditions of Art. L 145-1, RCS registration is NOT required for the new statutory commercial lease to arise through transformation. This is a significant departure from the ordinary rules that regularly catches landlords off guard.

The Transformation Mechanism: How the Law Works

The bail dérogatoire — the short-term derogatory lease permitted by Article L 145-5 of the Code de commerce — is designed as an escape hatch from the French commercial lease statute. It allows both parties to test a commercial relationship without the landlord committing to the full statutory regime: the nine-year minimum term, the right of renewal and the potentially substantial eviction indemnity that comes with it. But that escape hatch has a closing mechanism that is unforgiving and automatic.

Article L 145-5, alinéa 2 of the Code de commerce provides with stark simplicity: if the tenant remains and is left in possession of the premises one month after the expiry of the derogatory lease, a new lease subject to the commercial lease statute comes into effect. No court order is needed. No document is signed. No formality is required on either side. The new statutory commercial lease arises purely from the passage of time and the inaction of one or both parties (CA Riom 5-6-2024 n° 22/02098). Once that month has elapsed, there is nothing either party can do to put the clock back.

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The Core Rule

If the tenant remains and is left in possession of the premises for more than one month after the expiry of the bail dérogatoire, a new full commercial lease subject to the statute arises automatically by operation of Art. L 145-5, al. 2 C. com. This applies even if the original derogatory lease was shorter than three years (Cass. 3e Civ. 8-6-2017 n° 16-24.045 ; Cass. 3e Civ. 26-3-2020 n° 18-16.113). There is no tacit continuation of the derogatory regime for the remaining portion of the three-year ceiling. The transformation is irreversible.

What Triggers the Transformation: Two Cumulative Elements

The transformation requires two elements to coexist: the tenant must remain in possession, and the landlord must have left the tenant in possession. Both must be present. The tenant who stays but against whom the landlord has clearly expressed opposition within the one-month period does not automatically generate a new statutory lease simply by their presence.

What "Remaining in Possession" Means: The Key Question

Departure from the premises is established by the return of the keys to the landlord. This is not a formality that can be bypassed by showing that the tenant has effectively stopped using the premises, has removed their goods, or has not been physically present. A court of appeal that dismissed a landlord's claim on the ground that the tenant was no longer physically occupying the premises was overruled by the Cour de cassation: the court had not established that the keys had been returned (Cass. 3e Civ. 16-3-2023 n° 21-25.002). Conversely, a tenant who returned the keys and vacated in July 2019 could not be held liable for occupation beyond that date, regardless of the fact that mail continued to arrive at the address (CA Rouen 7-9-2023 n° 22/01468).

The practical lesson is unambiguous: key return is the act that ends occupation for the purposes of this rule. Landlords should acknowledge receipt of keys in writing. Tenants who wish to avoid accidental transformation should return keys formally and obtain written confirmation before the one-month deadline.

What "Being Left in Possession" Means: The Landlord's Side

The landlord's side of the equation turns on whether the landlord has clearly expressed opposition to the tenant's continued presence. Where the landlord has actively communicated that opposition — even before the lease expires — the fact that the tenant physically remains beyond the one-month period does not automatically generate a new statutory lease. Something more is required: an unequivocal positive act by the landlord that can be interpreted as a reversal of that opposition.

A landlord who had expressed clear opposition before the term, but then delayed in bringing eviction proceedings and entered into negotiations for a new lease, was held not to have tacitly accepted the tenant's continued presence (Cass. 3e Civ. 5-6-2013 n° 12-19.634). Mere delay in acting, when the prior opposition was clear, does not constitute consent. But where the original act of opposition was itself equivocal, subsequent inactivity can lead courts to infer that the landlord acquiesced in the holdover (Cass. 3e Civ. 28-6-2011 n° 10-19.236).

The Critical One-Month Window: A Step-by-Step View

The period is calculated from quantième to quantième under Articles 641 and 642 of the Code de procédure civile: a lease expiring on 31 August gives the landlord until 30 September to notify opposition. Understanding the mechanics of this window is essential for any landlord managing the expiry of a bail dérogatoire.

The One-Month Window — Step by Step
1
Before the end date — Anticipate and act
The landlord should remind the tenant in writing, before the lease expires, that the premises must be vacated and the keys returned no later than one month after the end date. A registered letter with acknowledgement of receipt is the safest approach. Any contractual notice provisions in the lease must also be respected.
2
On the end date — Automatic termination
The bail dérogatoire terminates automatically by virtue of Art. 1737 of the Code civil. No formal congé in the commercial lease form is required or valid; the formalities of Art. L 145-9 C. com. apply only to statutory commercial leases (Cass. 3e Civ. 11-5-2022 n° 21-15.389). The tenant has no right of renewal and no entitlement to an eviction indemnity.
3
The one-month period — The window of risk
The landlord must make their opposition to continued occupation clear within this window. The tenant must return the keys within it. Both parties should treat this as a hard deadline. Any ambiguity — in the landlord's communications or in the circumstances of the tenant's departure — creates the risk that a court will find the new statutory lease has arisen.
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After one month — Statutory commercial lease arises
If the tenant remains and the landlord has not clearly opposed this, a new full commercial lease subject to the statute comes into existence by operation of law. No document is needed. The new lease is subject to the same clauses as the expired bail dérogatoire except those incompatible with the statute, which become void. The transformation cannot be undone.

The Four Most Dangerous Traps

In practice, transformations arise from a small number of recurring errors. Each of them is entirely avoidable, but each has caught experienced landlords off guard.

Trap 1: Relying on a Contractual End-Date Clause
A lease clause stating that the bail dérogatoire will end automatically at its contractual expiry does not prevent the new statutory lease from arising if the tenant in fact remains (Cass. 3e Civ. 4-5-2010 n° 09-11.840). The clause is legally correct but operationally insufficient. Active communication is still required.
Trap 2: The Sub-Three-Year Lease Misunderstanding
Many landlords assume that a bail dérogatoire shorter than three years gives them flexibility to let the tenant stay for a while and then use the remaining derogatory period. This is wrong. Any holdover beyond one month triggers the full statute immediately, regardless of how much time remains within the three-year ceiling (Cass. 3e Civ. 8-6-2017 n° 16-24.045).
Trap 3: Equivocal Opposition
A communication that mentions the end of the lease but also discusses the possibility of a new arrangement may not constitute the unequivocal opposition required to prevent the statutory lease. If the landlord subsequently takes no active steps to evict, courts have inferred acquiescence from combined equivocal communication and inactivity (Cass. 3e Civ. 28-6-2011 n° 10-19.236).
Trap 4: Co-Tenants and Insolvency
Where multiple tenants hold the derogatory lease jointly, all who remain and are left in possession become parties to the new statutory lease — even those not personally operating the business (Cass. 3e Civ. 23-5-2013 n° 11-17.071). A tenant in redressement judiciaire whose administrator requested termination before the end date was still held bound by the new statutory lease after one month of holdover (Cass. 3e Civ. 31-5-2018 n° 17-16.944).

The Content of the New Statutory Lease

When the transformation occurs, the new commercial lease is subject to the same clauses and conditions as the expired bail dérogatoire (Cass. 3e Civ. 6-11-2001 n° 1557), with one critical qualification: any clause incompatible with the mandatory provisions of the commercial lease statute automatically becomes void. The compatible clauses survive; the incompatible ones fall away.

Obligations Carried Forward

Where the bail dérogatoire imposed an obligation on the tenant to operate the fonds de commerce personally, that obligation carries into the new statutory lease. A tenant who had accepted a personal operation clause in their short-term lease cannot, from the date the statutory lease arises, put the business into location-gérance without breaching the lease (CA Paris 16-1-1990).

Guarantees Do Not Follow Automatically

One consequence that regularly catches both parties by surprise is the fate of the guarantee (cautionnement) given for the bail dérogatoire. That guarantee does not automatically extend to the new statutory commercial lease that replaces it, unless the guarantee instrument expressly provides for this (Cass. 3e Civ. 28-11-2012 n° 11-14.671 ; Cass. 3e Civ. 23-5-2013 n° 11-17.071). A non-professional guarantor could not be presumed to have understood that a commercial lease would substitute for the derogatory lease if the tenant held over. Landlords who rely on personal guarantees for short-term leases must ensure that any new or extended guarantee instrument explicitly covers the statutory commercial lease that may arise.

The Rent of the New Lease

The rent of the new statutory commercial lease is freely agreed by the parties. If they cannot agree, it is set at market rental value (valeur locative) (Cass. 3e Civ. 14-12-2005 n° 1418). Any action to fix the rent is subject to the two-year limitation period of Article L 145-60 C. com., running from the date on which either party claimed the application of the statute (Cass. 3e Civ. 7-7-2016 n° 15-19.485).

The General Conditions of the Statute Must Still Be Satisfied

The transformation is not unconditional. The general conditions of Article L 145-1 must themselves be satisfied at the date of expiry of the derogatory lease: the premises must qualify as a local or immeuble, and the tenant must own and be operating a fonds de commerce in the premises (Cass. 3e Civ. 5-7-1995 n° 1533 ; Cass. 3e Civ. 24-6-2009 n° 08-14.674). However, registration in the RCS at the date of expiry is not required for the new statutory lease to arise (Cass. 3e Civ. 30-4-1997 n° 675 ; Cass. 3e Civ. 25-10-2018 n° 17-26.126). This is a significant departure from the general conditions of Art. L 145-1.

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The Three-Year Ceiling After Transformation

Once the statutory commercial lease has arisen through transformation, a further derogatory lease for the same fonds de commerce in the same premises is no longer possible if the cumulative duration of derogatory leases between these parties has already reached three years. Under Art. L 145-5, al. 3 C. com., the express renewal of a derogatory lease or the conclusion of a new lease after the three-year maximum has been reached itself gives rise to a new statutory commercial lease. The Cour de cassation has confirmed that the prohibition on further derogatory leases applies even where the new activity differs from the prior one (Cass. 3e Civ. 31-5-2012 n° 11-15.580).

Can the Tenant Waive the New Statutory Protection?

Once a tenant has acquired the benefit of the commercial lease statute through transformation, they may in principle renounce it — but only within strict limits. The Cour de cassation has confirmed that renunciation remains possible after the 2014 reform, but it has no effect if it would take the cumulative duration of successive derogatory leases beyond three years from the date of the very first derogatory lease between the parties for the same premises (Cass. 3e Civ. 22-10-2020 n° 19-20.443). Renunciation must also be unequivocal — a tenant who acknowledges owing an occupation indemnity rather than rent has been held not to have demonstrated the clear and unambiguous renunciation that the law requires (Cass. 3e Civ. 15-2-2023 n° 21-12.698).

How to Prevent Transformation: A Landlord's Checklist

Prevention is straightforward in principle, though it requires discipline and advance planning. The landlord should communicate clearly in writing — before the lease expires — that the tenant is required to vacate and return the keys by the contractual end date, and in any event no later than one month after that date. A registered letter with acknowledgement of receipt is the standard form; a bailiff's act is the most secure. The landlord should not enter into any negotiations for a new lease, make any statements about the tenant's future, or take any other action that could be interpreted as a reversal of the expressed opposition. Any guarantee given for the derogatory lease should be explicitly renewed or replaced to cover any new arrangement, given that it will not follow automatically into the statutory lease.

Key Points: When a Short-Term Lease Becomes a Full Commercial Lease
Transformation into a full commercial lease occurs automatically and irreversibly if the tenant remains and is left in possession for more than one month after expiry of the bail dérogatoire (Art. L 145-5 al. 2 C. com.) — regardless of whether the derogatory lease was shorter than three years.
The tenant's departure is established by key return, not by physical absence from the premises or removal of goods. Landlords must acknowledge receipt of keys in writing. Tenants must return keys formally and obtain written confirmation before the one-month deadline.
A contractual end-date clause in the derogatory lease is legally correct but does not prevent transformation if the tenant in fact remains. Active, unequivocal landlord communication is required. Equivocal opposition combined with subsequent inactivity may imply acquiescence.
The new statutory commercial lease is subject to the same clauses as the expired derogatory lease, except those incompatible with the mandatory provisions of the statute, which become void automatically.
Guarantees given for the derogatory lease do not automatically extend to the new statutory commercial lease — landlords must obtain fresh or extended guarantee instruments explicitly covering the statutory lease that may arise.
The rent of the new lease is freely agreed; failing agreement it equals market rental value, and any action to fix it is subject to a two-year prescription running from the date either party claimed the application of the statute.
Tenant RCS registration is NOT required for the new statutory lease to arise through transformation — a significant departure from the general conditions of Art. L 145-1 that regularly catches landlords off guard.
All co-tenants who remain in possession after one month become parties to the new statutory lease. A tenant in redressement judiciaire whose administrator requested termination before expiry is still bound by the new statutory lease if they remain after one month.
Renunciation of the new statutory protection is possible but only within the three-year cumulative ceiling from the first derogatory lease, and must be unequivocal — acknowledging an occupation indemnity is insufficient.
Managing the Expiry of a Short-Term Lease in France?

Whether you are a landlord seeking to recover possession cleanly or a tenant assessing your position at the end of a derogatory lease, the rules governing transformation require precise handling. The one-month window is unforgiving and the transformation is irreversible.

Speak with a French Lawyer

This article is for general information and educational purposes only. It does not constitute legal advice. The legal analysis reflects the provisions of the Code de commerce and the case law cited. French commercial lease law is a complex and evolving area. Always seek qualified legal advice for your specific situation before making any decision with legal consequences.