Sale to a family SCI and the tenant's right of pre-emption

The sale of commercial premises to a family SCI (French real estate company) does not escape the tenant's right of pre-emption (droit de préférence). The family transfer exception in Article L. 145-46-1 of the French Commercial Code covers the landlord's spouse, ascendant or descendant: it does not cover a company, even one constituted between relatives, because that company has a personality distinct from that of its shareholders. The landlord must therefore purge the right of pre-emption.

The essentials

• The sale of commercial premises to an SCI constituted between the landlord's children remains subject to the tenant's right of pre-emption.
• The family exception in Article L. 145-46-1 of the French Commercial Code applies only to natural persons: the landlord's spouse, or an ascendant or descendant of the landlord or of the landlord's spouse.
• An SCI has a personality distinct from that of its shareholders: the family tie between shareholders does not pass to the company.
• Where the owner decides to sell on terms or at a price more favourable to the buyer, the notary must notify those new terms to the tenant, on pain of nullity of the sale.
• A tenant who accepts the offer thus notified becomes the buyer: the owner can no longer change its mind on the ground that the transaction was a family one.

What the Cour de cassation held on the family transfer

The third civil chamber holds that a sale to a family SCI does not constitute a transfer to a descendant of the landlord, so that the tenant retains its right of pre-emption (Civ. 3e, 5 March 2026, No. 24-11.525).

An SCI which owned premises let under a commercial lease granted a promise to sell (promesse de vente) to another SCI, constituted by its manager (gérant) and the manager's two children. The promise provided for a price payable partly in cash and, as to the balance, by instalments over fifteen years, subject to a condition precedent that the tenant would not exercise its right of pre-emption. The notary served a first offer on the tenant, who did not accept it. The payment terms having then been amended in the buyer's favour, the notary made a second notification, which the tenant this time accepted.

The landlord refused to complete the sale for the tenant's benefit, relying on the family nature of the transaction. The tenant sued it for completion of the sale; the landlord joined the notary in the proceedings seeking an indemnity. The decision under appeal (CA Rennes, 28 November 2023, No. 22/02487) declared the sale complete for the benefit of the tenant. The Cour de cassation (France's highest civil court) dismisses the appeal: the parties to the proposed deed were SCIs, not natural persons, from which the court of appeal correctly inferred that the transfer was not made for the benefit of descendants. The decision states (free translation):

A sale granted for the benefit of an SCI, even one constituted exclusively between relatives by blood or by marriage, which has a personality distinct from that of its shareholders, does not constitute such a transfer.

What the ruling changes for a commercial landlord

A landlord who arranges the transfer of its building through a corporate structure cannot rely on the family exception to set aside the tenant's right of pre-emption.

Article L. 145-46-1 of the French Commercial Code requires the owner of premises used for commercial or craft purposes who contemplates selling them to inform the tenant by registered letter with acknowledgement of receipt, or by hand delivery against a receipt or signature. That notification stands as an offer of sale. The final paragraph sets aside this mechanism for the transfer of premises to the landlord's spouse, or to an ascendant or descendant of the landlord or of the landlord's spouse.

The screen of legal personality here works against the person who created it. The landlord chooses to have the purchase made by an SCI rather than directly by its children; that company is an autonomous legal person, which is neither the spouse, nor the ascendant, nor the descendant of anyone. The family tie exists between the shareholders, not between the companies party to the deed. The consequence is direct: the sale falls within the scope of the right of pre-emption and must be notified to the tenant.

A change in the price requires a fresh notification

A second notification is required where the owner decides to sell on terms or at a price more favourable to the buyer.

The decision under review restates this rule. Where the landlord has not previously done so, the notary must notify the tenant of those terms and that price, in the forms provided for in the first paragraph and on pain of nullity of the sale. That notification too stands as an offer of sale for the tenant's benefit.

The practical scope is considerable. A tenant who let the first offer pass is not definitively excluded: renegotiating the terms in favour of the prospective buyer revives the tenant's right. In the case decided, the shift to full vendor financing triggered a fresh notification, which the tenant accepted. The sale initially contemplated for the benefit of the family company was thereby deprived of its object.

What the decision confirms and what it leaves open

The decision sets a strict reading of the family exception and aligns it with the principle that a legal person is autonomous.

The commercial chamber was not seised; it is the third civil chamber that decides, sitting as a section, with publication in the Bulletin (official law reports). The solution is stated in general terms: any SCI, even one constituted exclusively between relatives by blood or by marriage, escapes classification as a spouse, ascendant or descendant. The appeal argued that the right of pre-emption, being a derogation from the right of property, calls for strict interpretation. The argument turns back on itself: it is the exception to the right of pre-emption that is to be read strictly.

The decision leaves outside its scope the question of the transfer of shares in a company, which was not before the Court. Nor does it rule on the other exclusions in the final paragraph of the provision. The third ground of appeal, concerning compensation by the notary, is also dismissed: the court of appeal was entitled to infer from ambiguous submissions, by an unfettered interpretation, that the landlord was making no quantified claim in respect of the loss of chance (perte de chance) to transfer the property.

What to do before arranging a property transfer

A family structure never dispenses with purging the right of pre-emption where the let premises are used for commercial or craft purposes.

A landlord wishing to transfer a let building must first identify the status of the prospective buyer. A natural person meeting one of the qualities listed in the provision: the exception applies. A company, whatever its composition: the right of pre-emption applies. That classification governs the entire security of the transaction, since the notary's failure to notify the more favourable terms is sanctioned by nullity of the sale.

Vigilance also extends to the notary's duty to provide advice (devoir de conseil). The court of appeal found a breach by the notary for failing to alert the seller to the consequences of the change in the payment arrangements. But the Cour de cassation points out that a claim for compensation must appear, quantified, in the operative part of the submissions. Damage recognised in the reasoning is not made good if no claim carries it.

The checks to carry out before signing a promise to sell let premises

• Check whether the premises are used for commercial or craft purposes, which triggers the tenant's right of pre-emption.
• Identify the buyer: a family company does not benefit from the exception reserved for the spouse, the ascendant or the descendant.
• Notify the offer to the tenant by registered letter with acknowledgement of receipt, or by hand delivery against a receipt or signature.
• Send a fresh notification as soon as the price or the terms become more favourable to the buyer, the sanction being nullity of the sale.
• Quantify any claim for compensation against the drafter of the deed and restate it in the operative part of the submissions.