Can we sublet commercial premises?
We speak of subletting when the main tenant of a property – in this case a commercial premises – wishes to make this property partially or totally available to a third party, in return for financial consideration. Simply put, it's about renting someone a place that you rent yourself. However, this practice is strictly regulated by law and you are not free to do what you want. Focus on the criteria to be met to sublet commercial premises.
Can a commercial lease be sublet?
Subletting commercial premises is accepted only if the lessor has given his prior authorization and if he participates in the sublease contract. These two conditions are imperative to ensure the validity of the contract.
This agreement of the lessor can be written or tacit. If it is tacit, the agreement must be expressed clearly and unequivocally. Mere knowledge of a sublease and an apparent tolerance in this regard are therefore not enough. As you will have understood, for greater clarity and in order to have legal proof, it is still preferable to keep a written record of this agreement.
In addition, subletting may be authorized if it is directly provided for in the commercial lease initially signed and if, as indicated above, the owner is called upon to contribute to the act (article L145-31 al 2 commercial code) .
Subletting without authorization: what does the law say?
In all cases other than those detailed above, as specified in Article L145-31 of the Commercial Code, it is prohibited to sublet, in whole or in part, premises subject to a lease. commercial.
If the commercial premises are sublet without authorization or agreement signed between the parties, the lessor may, if he wishes, not renew the rental contract, or even terminate the lease of the main tenant. The latter is then stripped of the commercial property, and the lessor is therefore not obliged to pay him an eviction indemnity.
Read also: What is the civil liability of the director?
How to sublet commercial premises?
To sublet commercial premises without risk and in compliance with the law, it is advisable to follow the two steps detailed below.
The authorization request
As explained above, a sublease of commercial lease necessarily implies the written or tacit agreement of the lessor. Once again, it is preferable to opt for written authorization, which can constitute reliable legal proof.
The first step is therefore for the tenant to express to the lessor his clear desire to sublet the premises. To do this, he must send his request by registered mail with acknowledgment of receipt or send his request by extrajudicial document. The lessor then has a period of 15 days from receipt of the document to give his answer, positive or not.
If the owner responds by declaring that he opposes the subletting, despite the authorization he has previously granted, he is disregarded. If the owner fails to respond, he is also overruled.
The sublease contract
The sublease contract is concluded between the tenant and the sub-tenant. It is possible to attach the written agreement of the owner to this document, as well as a copy of the initial rental contract.
The commercial lease sublease agreement must detail the following elements:
the description and assignment of the commercial premises;
the rent of the sublet (not necessarily identical to that of the rental);
the duration of the sublease;
the distribution of charges between tenant and sub-tenant;
the different rules of liability vis-à-vis the lessor owner.
The contract must then be signed by both parties and, if he wishes to participate, by the lessor. The sub-tenant has the same rights as the tenant. And the latter cannot grant more rights than he possesses.
Payment of rent in subletting: how does it work?
There is no direct link between the sub-tenant and the lessor. Consequently, the tenant is considered responsible in the event of any damage caused by the sub-tenant.
Regarding the rent, the sub-tenant pays it directly to the tenant who, in turn, pays his due to the landlord. It should be noted that in the event of non-payment by the main tenant, the lessor has the right to take action against the sub-tenant.
The amount of the rent for the sublet can be set freely by the main tenant. If it is different from the initial lease, we can distinguish two scenarios:
The rent of the sublease is lower than that of the main rental. The lessor may not ask the tenant to pay a sum greater than that for which he has committed.
The rent of the sublease is higher than that of the main rental. The lessor is entitled to request an increase in the main rent.
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