Works Allocation Checklist
Art. 606 major structural repairs cannot be charged to the tenant under Art. R. 145-35 C. com. for post-2014 leases, regardless of what the lease says. Even where transferred by contract, total reconstruction of a building element (e.g. complete roof replacement) cannot be imposed on the tenant (Cass. 3e civ., 16 March 2023).
Age-related deterioration and regulatory compliance both require express, specific clauses to be transferred to the tenant. Generic “all maintenance” or “all repairs” clauses are insufficient. The specific installations must be named. Where the clause is ambiguous, courts interpret it against the landlord.
Tenant improvements and accession timing determine the uncapping window: improvements by the tenant at their own expense = uncapping at the second renewal; landlord-funded improvements = uncapping at the first renewal; where accession only occurs at end of occupation (not end of lease), the second-renewal uncapping right does not apply (Cass. 3e civ., 17 September 2020).
Draw up a detailed condition report at entry and at exit. An assignee who enters without a condition report is exposed to liability for all unauthorised works found on exit — they cannot prove they did not carry them out (Cass. 3e civ., 25 January 2023). The condition report is the only reliable benchmark for restitution claims.
The “as is” clause only covers works required at the date of entry that were visible at that time. It does not discharge the landlord from ongoing maintenance and delivery obligations during the lease term. It must be backed by a condition report to be effective for specific identified defects.

The Six Categories of Works and Who Bears Them by Default

Before drafting a works clause, each category must be identified and its default allocation established. Every category can in principle be shifted by contract — but shifting requires an express clause that identifies the category with specificity.

Category Default bearer Transferable to tenant?
Routine repairs and minor maintenance (réparations locatives) Tenant (Art. 1754 C. civ.) YES — can be transferred to landlord by express clause
Major structural repairs (Art. 606 C. civ.) Landlord NO under Art. R. 145-35 for post-2014 leases; even where transferred by contract, total reconstruction cannot be imposed
Age-related deterioration (vétusté) Landlord (Art. 1755 C. civ.) ONLY BY EXPRESS CLAUSE naming specific installations; “all maintenance” clauses are insufficient
Works caused by force majeure Neither party — no obligation N/A
Regulatory compliance works Landlord (absent clause) ONLY BY PRECISE CLAUSE; must relate to contractual use; structural compliance works cannot be transferred
Tenant improvement works Tenant carries out; accession rules (Art. 555 C. civ.) determine ownership at lease end Lease specifies accession, demolition, or landlord’s option; see uncapping consequences below

Major Structural Repairs Under Article 606: An Expanding Definition

Article 606 C. civ. defines major structural repairs by reference to load-bearing walls, vaults, beams, complete roofing, retaining walls, and enclosures. The Court of Cassation has moved to a broader criterion: major structural repairs are those that affect “the building in its structure and general solidity,” as distinct from maintenance repairs (Cass. 3e civ., 13 July 2005; Cass. 3e civ., 21 April 2022). Confirmed qualifying works include: complete roof replacement; replacement of full window frames including finishing; repair of a glass roof constituting a complete covering; replacement of a central heating boiler; waterproofing and slab repair in an underground car park affecting structural integrity.

Even where a lease transfers all Art. 606 works to the tenant, a complete total roof replacement cannot be transferred: a clause doing so is interpreted restrictively and does not cover total replacement (Cass. 3e civ., 29 September 2010, n° 09-69.337; Cass. 3e civ., 16 March 2023, n° 21-25.106). Since 2014, Art. R. 145-35 C. com. provides that for leases concluded or renewed from 5 November 2014, Art. 606 works and their associated professional fees cannot be charged to the tenant regardless of what the lease says. The exception: beautification works whose cost exceeds like-for-like replacement can be charged to the tenant even if they are of Art. 606 scale.

Age-Related Deterioration: Strict Transfer Rules

Works caused exclusively by age-related deterioration fall on the landlord by default under Art. 1755 C. civ. Deterioration means the natural wearing out of the building through normal, legitimate use over time (Cass. 3e civ., 7 March 1972). The tenant cannot be held responsible for deterioration attributable to age even if they knew the state of the premises when they entered.

Transferring deterioration-related works to the tenant requires an express clause, and courts interpret transfer clauses strictly. The following have been held insufficient to transfer deterioration works: “Tenant to bear all charges for management, maintenance, and repair of the building except Art. 606 works” (Cass. 3e civ., 5 April 2011 — applied to lifts); “Tenant to maintain the premises in good repair of all kinds” (Cass. 3e civ., 14 May 1991); a clause transferring only deterioration of meters, pipes, wiring, and ducts does not extend to fire safety systems (Cass. 3e civ., 15 February 2018).

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Warning — Enumerate the Specific Equipment

To transfer deterioration-related works effectively, the clause must enumerate the specific installations and equipment concerned. A general “all maintenance” or “all repairs” clause will not transfer deterioration works to the tenant. Where the transfer is intended to extend to specific equipment — lifts, heating systems, electrical installations — those must be named. The same applies to compliance works. Courts will interpret any ambiguity against the landlord as the obligated party.

Regulatory Compliance Works: The Distinction That Matters

In the absence of a specific clause, regulatory compliance works ordered by administrative authority fall on the landlord (Cass. 3e civ., 17 April 1996). An important limitation applies: the landlord only bears compliance costs where the works are required to make the premises fit for the contractual use. Compliance works necessitated by the specific way the tenant uses the premises remain the tenant’s responsibility: a landlord who lets a bar cannot be made to fund compliance works required for a crêperie the tenant decided to operate there instead (Cass. 3e civ., 28 May 2003).

Transfer of compliance works to the tenant is valid where the clause is precise enough. A clause providing that the tenant bears “all works that may be necessary to bring the premises into conformity with the applicable regulation concerning the commercial activity, including safety works” has been held valid and effective (Cass. 3e civ., 13 March 2012). Future regulatory compliance works can also be validly transferred by express clause (CA Nancy, 25 October 2017). Structural compliance works, however, cannot be transferred: a structural defect remains the landlord’s problem regardless of the lease.

Tenant Improvement Works: Accession and the Renewal Uncapping Trap

Where the tenant carries out works on the premises, Art. 555 C. civ. provides that in the absence of a lease clause, those works belong to the landlord on expiry, subject to payment of an indemnity to the tenant. The lease typically displaces this default by one of three mechanisms: free accession to the landlord at the end of the lease (no indemnity); demolition and restitution to original state; or the landlord’s option between the two.

The Renewal Uncapping Consequence

Where works carried out by the tenant at their own expense pass into the landlord’s ownership by accession at the expiry of the lease, the landlord can invoke them as a ground for uncapping the renewal rent — but only at the second renewal after the works were done (Cass. 3e civ., 4 October 1994). Where the accession clause gives the landlord an option to demand restitution to original state, accession only occurs at the end of the entire occupational relationship, not at the first renewal — so the second-renewal uncapping right does not apply (Cass. 3e civ., 17 September 2020, n° 19-21.713). If the landlord funded the improvements directly or indirectly (through a rent reduction or rent-free period), uncapping is available at the first renewal (Cass. 3e civ., 14 March 2019).

Modifications vs Improvements: Different Uncapping Timing

Works that modify the physical characteristics of the premises (surface area, configuration, equipment, conformity with trade regulations — Art. R. 145-3 C. com.) are legally distinct from improvements. Modifications justify uncapping at the first renewal, not the second. In practice, we advise landlords who wish to use tenant works as an uncapping ground to invoke them at the first renewal regardless of their characterisation: if the court rejects the modification claim, the landlord preserves the improvement argument for the second renewal.

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Practical Point — Invoke Works at the First Renewal

If there is any uncertainty as to whether works are modifications of characteristics (Art. R. 145-3) or improvements (Art. R. 145-8), always invoke them at the first renewal. If the court later classifies them as improvements, the uncapping claim carries forward to the second renewal. Waiting for the second renewal on what turns out to be a modification of characteristics means the first-renewal opportunity is permanently lost.

The “As Is” Clause and Restitution at the End of the Lease

A clause by which the tenant takes the premises in their current state (en l’état) only covers works and repairs that were visibly required at the date of entry. It does not discharge the landlord from ongoing maintenance and delivery obligations during the lease term (Cass. 3e civ., 18 March 1992). For the clause to be effective in excluding specific initial repair works, those works must be identified — or at the very least, the clause must be corroborated by a condition report showing the tenant was aware of the specific deficient elements.

At the end of the lease, the tenant must return the premises in their initial state, subject to normal wear and tear attributable to age. The condition report drawn up at entry is the benchmark for comparing the state on exit. Where a tenant-assignee entered without a condition report, the assignee is responsible for unauthorised works found at exit, regardless of who carried them out, since they cannot prove they did not do so (Cass. 3e civ., 25 January 2023, n° 21-22.311). The landlord is not required to prove they have actually carried out the works to obtain compensation for deterioration.

Practical Checklist: Reviewing a Works Clause Before Signing
Map each works category explicitly in the clause: identify by category (routine repairs, Art. 606 works, deterioration, compliance, improvements) and state the allocation. Do not use generic “all repairs” or “all maintenance” language — it will not hold up for deterioration or compliance works and will produce disputes at end-of-lease restitution.
For post-2014 leases: confirm Art. R. 145-35 compliance: the charges clause must not include Art. 606 structural repairs or their associated professional fees. For leases with legacy clauses carrying over from pre-2014 leases, these items are struck out automatically and should be removed from the new lease text at renewal.
For deterioration and compliance transfer clauses: name every installation: lifts, heating systems, electrical installations, fire safety systems, and any other equipment to be covered must each be named. Verify that the clause does not attempt to transfer structural compliance works — which remain the landlord’s responsibility regardless.
Specify the accession mechanism and its timing: the lease should state whether tenant works accede at the end of the lease (enabling second-renewal uncapping) or only at the end of occupation (no uncapping right). If the landlord wishes to retain the uncapping option, draft for accession at lease expiry, not end of occupation. If the tenant wishes to preserve the right to remove fit-out, negotiate demolition or landlord’s option language.
Always establish a detailed condition report at entry and secure a signed copy: without a condition report, the assignee entering the lease is exposed to full liability for all unauthorised works found on exit — they bear the burden of proving they did not carry them out. The condition report must be detailed enough to identify the specific state of every fixture and fitting covered by the restitution clause.
Reviewing Works Clauses in a French Commercial Lease?

Works disputes are among the most common and most expensive in French commercial lease litigation. We review works allocation clauses for enforceability, advise on the drafting of transfer clauses, and act in works disputes at the end of the lease or at renewal.

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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 works allocation in a French commercial lease.