The fixing of the rent within the renewal of a commercial lease « under the same terms and conditions »
In a recent case of April 15, 2021 (Civ. 3rd, n°19-24.231), French Cour de cassation pronounced itself on the interpretation of the mention « under the same terms and conditions » provided for in a lease renewal request.
In this case, in 2016 the tenant requests the lease renewal concluded in 2007, with a deed containing the mention « under the same terms and conditions ». The tenant accepts the renewal and after that, the tenant requests that the price of the renewed lease be fixed at an amount lower than the initial rent. Following the tenant’s refusal, the tenant filed a request before the court for setting the rent for the renewed lease.
In this case, the question asked was to know if the mention «under the same terms and conditions » in a lease renewal request also concerns the amount of the rent.
The Cour de cassation confirms the court of appeal’s decision considering that the tenant’s request and the tenant’s acceptance also related to the amount of rent and that the parties agreed to maintain the rent of the renewed lease to the initial rent.
By this decision, the Cour de cassation seems to contradict its previous case law which considers that the mention « under the same terms and conditions of the previous lease » in the lease renewal request was not sufficient to characterize « a precise, complete and firm commitment of the tenant on the rent of the renewed lease », notably because this formula made no express reference to the rent (Civ. 3rd, June 24, 2009, n°08-13.970). However, the facts of the two cases are different: unlike 2019 case, in the 2021 case the landlord had accepted the lease renewal « under the same terms and conditions », which justifies a different decision.
Given this decision, it is important to be careful during the commercial lease renewal: depending on the wish to maintain or not the rent of the initial lease, the tenant and the landlord must draft carefully respectively the renewal request as well as the response.