Commercial tenant's right of first refusal: two years to act

The sale of commercial premises concluded without complying with the tenant's right of first refusal (droit de préférence) is null and void, and the claim for annulment is time-barred after two years. The third civil chamber holds that this claim, based on Article L. 145-46-1 of the French Commercial Code, is brought under the statutory regime governing commercial leases: it therefore falls under the two-year limitation period (prescription) of Article L. 145-60 of the same code, and not under the general limitation period (Civ. 3e, 18 December 2025, No. 24-10.767).

Key points

• The sale of premises used for commercial or craft purposes concluded with a third party in disregard of the tenant's right of first refusal (droit de préférence), provided for by Article L. 145-46-1 of the French Commercial Code, is sanctioned by nullity.
• The claim for annulment of that sale is subject to the two-year period of Article L. 145-60 of the French Commercial Code, which covers all claims brought under the statutory regime governing commercial leases.
• The tenant cannot rely on the deemed unwritten rule of Article L. 145-15 of the French Commercial Code, or on the five-year limitation period under the general law, to escape that two-year period.
• The notification of the proposed sale must state, on pain of nullity, the price and the terms of the sale envisaged; it operates as an offer to sell in the tenant's favour.
• Where the owner sells on terms or at a price more favourable to the buyer, the notary must notify those terms and that price to the tenant, on pain of nullity of the sale, if the landlord has not already done so.

What did the tenant object to in the sale of the leased building?

The tenant objected that the landlord had sold the building without putting it in a position to exercise its right of first refusal. A tenant company operates a residential care home for dependent elderly persons in a building let under a commercial lease on 15 July 2010. By notarial deed (acte authentique) of 30 June 2017, the original landlord, a société civile immobilière (French real estate company), sold the building to a third-party company.

On 18 June 2020, the new owner notified the tenant of its intention to sell the building, referring to Article L. 145-46-1 of the French Commercial Code. In July 2021, the tenant served a writ of summons (assignation) on the seller and the buyer, seeking annulment of the 2017 sale, restitution of the rents paid since that sale and compensation, arguing that the transaction had been carried out in fraud of its rights. The buyer raised a plea of inadmissibility (fin de non-recevoir) based on limitation. The decision under appeal (CA Paris, 24 November 2023, No. 23/04231) declared the claims for annulment of the sale and for restitution of the rents inadmissible as time-barred.

The third civil chamber dismisses the appeal: a sale concluded in disregard of the right of first refusal is sanctioned by nullity, and the claim for annulment, brought under the statutory regime governing commercial leases, falls under the two-year period of Article L. 145-60 of the French Commercial Code. The decision thus sets aside both characterisations advanced by the tenant, the deemed unwritten rule and the five-year limitation period under the general law, in the following terms (free translation):

It follows, first, that a sale of leased premises concluded by the owner of premises used for commercial or craft purposes with a third party in disregard of the right of first refusal of the commercial lease tenant, provided for by Article L. 145-46-1 of the French Commercial Code, is sanctioned by nullity and, second, that the claim for annulment of that sale brought by the tenant, which is exercised under the statutory regime governing commercial leases, is subject to the two-year limitation period of Article L. 145-60 of the same code.

Tenant's right of first refusal: how long to bring a claim?

A commercial tenant has two years in which to seek annulment of a sale concluded in disregard of its right of first refusal. That period stems from Article L. 145-60 of the French Commercial Code, which subjects to a two-year limitation period all claims brought under the chapter devoted to commercial leases. The tenant cannot claim the five years of the general limitation period. Once the period has expired, the claim for annulment is inadmissible, and the claims that depend on it, such as restitution of the rents paid to the buyer, fall with it.

• Sanction for a sale concluded without complying with the right of first refusal: nullity of the sale.
• Time limit for bringing a claim for annulment: two years, under Article L. 145-60 of the French Commercial Code.
• Basis for the period: the tenant's claim is brought under the statutory regime governing commercial leases.

For the buyer of occupied premises, the solution brings security: the risk of annulment of the sale does not extend indefinitely. For the tenant, it calls for a swift reaction as soon as it learns that its landlord has changed. The right of first refusal keeps its force, since the sanction remains nullity of the sale, but its enforcement through litigation is confined within a short period.

Why the deemed unwritten rule is set aside

The sanction attached to the right of first refusal is nullity of the sale, not the deemed unwritten rule. Article L. 145-15 of the French Commercial Code deems unwritten the clauses, stipulations and arrangements that defeat the right of renewal or the provisions it lists. The court of appeal had held that this text did not apply to a sale concluded without complying with the commercial tenant's right of first refusal. The decision of 18 December 2025 adopts nullity, which closes off the deemed unwritten route relied on by the tenant.

The starting point of the two-year period is not settled by the decision discussed here. According to the court of appeal, that period runs, under Article 2224 of the French Civil Code, from the day on which the holder of the right knew or ought to have known of the facts enabling it to exercise that right. The lower court judges took the date on which the tenant learnt of the sale of the premises, rather than the date on which the alleged fraud was discovered. The third civil chamber rejected the other grounds of appeal without a specially reasoned decision, under Article 1014, second paragraph, of the French Code of Civil Procedure.

According to the decision under appeal, the admissibility of the claim for damages brought by the tenant was no longer disputed before the court of appeal. The limitation of the claim for annulment therefore does not, on its own, determine the fate of all the compensation claims arising from the same transaction.

The tenant's key steps when the landlord changes

The date on which the tenant learns of the sale governs the fate of its claim: it should be documented as soon as the landlord changes. The court of appeal relied on ordinary features of the life of the lease: a letter announcing the contact responsible for management, rent invoices bearing the new owner's letterhead, and then payment of the rents into its account. Those documents were enough to fix knowledge of the sale and to start the period running.

A tenant receiving notification of a proposed sale first checks its content. The notification must state, on pain of nullity, the price and the terms of the sale envisaged, and it operates as an offer to sell in the tenant's favour. Under the version of Article L. 145-46-1 of the French Commercial Code applicable to the dispute, reproduced in the decision under appeal, the tenant has one month from receipt of the offer to respond. A subsequent sale on terms more favourable to the buyer calls for a fresh notification, on pain of nullity of the sale.

Checks to carry out as soon as a sale is notified

• Keep a dated record of any letter, receipt or transfer revealing a change of owner: that date governs the calculation of the two-year period.
• Check that the notification of the proposed sale states the price and the terms, required on pain of nullity, and respond within the one-month period provided by the text applicable to the dispute decided.
• Treat the claim for annulment of the sale as a claim under the statutory regime governing commercial leases, subject to the two-year period of Article L. 145-60 of the French Commercial Code, and not to the five-year period under the general law.
• Distinguish the claim for annulment, confined within that period, from compensation claims, whose fate may be examined separately.