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Commercial lease
Is the tenant's right of preference excluded in the case of sale to the owner's children?
Publié le 05 juin 2026 - Entreprendre Public Service / Directorate of Legal and Administrative Information (Prime Minister)
In a judgment delivered on March 5, 2026, the Court of Cassation specifies the conditions for exercising the right of preference in the context of a sale of premises for commercial or artisanal use.
Please note
The right of commercial preference is set out inArticle L. 145-46-1 paragraph 7 of the French Commercial Code (paragraph 6 at the time of the facts). This is a right granted to the tenant of a commercial or craft premises that allows him to buy back a premises first if its owner decides to resell it.
In this case, an owner of premises subject to a commercial lease is considering selling his premises. He accepted a promise to sell to a business owned by his children. In accordance with the commercial tenant's right of preference, the notary informs the tenant of this offer to sell. The company has not indicated any intention to purchase it. The notary notifies a new offer, with modified conditions. She finally decides to buy the premises but the owner then refuses to accept his offer to buy. The tenant decides to assign the owner of the lease to realize a sale because it considers that there is a violation of the right of commercial preference.
The Court of Appeal rules in favor of the tenant. The judge asks the owner to validate the sale to the tenant who came forward for the purchase of the commercial premises. The judge found that the sale had been concluded with a civil real estate business owned by the owner's children, which did not fall within the exceptions to the right of preference.
The owner appeals to the Court of Cassation. It states that Article L.145-46-1 paragraph 6 of the French Commercial Code is not applicable. For him, his situation falls within the exceptions of the right of commercial preference since it is a sale that he wishes to conclude with the civil real estate business of his children.
The Court of Cassation states that, when the owner of a commercial premises decides to sell, he must inform the tenant by registered letter. If he does not do so, it is up to the notary to inform the tenant of the sale of the lease. This notification shall be considered as an offer to sell.
It points out that the civil business in immovable property has legal personality. Thus, even if that business is made up of members of the same family, the sale remains for the benefit of a business and not of natural persons.
The sale made here does not therefore fall within the exceptions provided for in Article L.145-46-1 of the French Commercial Code since the exception to the commercial tenant's right of preference concerns natural persons descended from the lessor but not a family real estate civil business.
The tenant therefore benefits from the right of preference.