What is the difference between commercial and professional lease?

Separate activities

the commercial lease is suitable for the exercise of a commercial, industrial or craft activity. When the premises are not assigned administratively to the exercise of this type of activity, the lessor must request its change of use beforehand.

The professional lease, on the other hand, implies that the premises be assigned to exclusively professional use. Its conclusion is only possible for the exercise of a profession whose income is taxed in the category of non-commercial profits (BNC). Therefore, the professional lease is devoted to non-commercial, craft, agricultural or industrial activities. More flexible than the commercial lease, the professional lease mainly concerns liberal professionsregulated (doctors, architects, lawyers, accountants, etc.) but not only (consultants, management advice, etc.).

Rules of form and duration of the lease

While the professional lease contract must imperatively be in writing, the verbal conclusion of the commercial lease contract is possible, although not recommended (writing being a security and proof of the existence of the lease).

One of the most important differences between a commercial lease and a professional lease is the minimum duration of the contract. The commercial lease contract (excluding seasonal rentals and derogatory lease) is concluded for a minimum of 9 years while the professional lease has aminimum duration of 6 years.

Termination of the lease

Regarding termination, the formality is much simpler when the entrepreneur has concluded a professional lease. In fact, in this case, the tenant has the possibility of terminating the lease at any time by notifying the lessor by registered letter with acknowledgment of receipt or by bailiff’s deed, as soon as he gives a6 months notice. The lessor, for his part, cannot terminate the professional lease contract until its expiration.

On the contrary, the possibility of giving leave of the tenant of a commercial lease is restricted, the latter being able to do so only at theend of a 3 year period (3 – 6 – 9 years). Thus, when the tenant has entered into a commercial lease, he is obliged to stay in the premises for a minimum period of 3 years. In the event of a commercial lease lasting more than 9 years, the parties may agree that the tenant will not have the right to give notice before the end of the contract. In order to terminate the commercial lease contract, the tenant presents his leave to the lessor by registered letter with acknowledgment of receipt, at least 6 months before the end of the three-year period (3 – 6 – 9 years) or of the duration of the lease. Although the lessor also has the option of terminating the commercial lease at the end of each three-year period, he must justify one of the reasons provided for by law (L145-17 Commercial Code).

Right to renewal

Within a commercial lease, the tenant has the right to renewal if he has exercised his professional activity in the premises for more than 3 years. The lessor can then modify the amount of the price by initiating a procedure for the renewal of the commercial lease contract.

On the other hand, for the professional lease, the tenant does not have an automatic right to renewal. Each party, lessor or lessee, may notify the other of its intention not to renew the professional lease on its expiry, by giving 6 months’ notice. In the absence of any manifestation of the will of the tenant or the lessor, the professional lease is tacitly renewed for 6 years.

Subletting and assignment of the lease

Within the framework of a professional lease, the tenant has the possibility of subletting the premises as long as a clause of the lease does not prohibit him. The opposite is true for the commercial lease, in which the sublet requires the authorization of the lessor (in a clause of the commercial lease or not). In both cases, the main tenant remains bound to the lessor for the performance of the obligations arising from the lease if the sub-tenant does not respect them.

The distinction between professional lease and commercial lease is also marked with regard to the assignment of the lease. Indeed, even if the assignment of the professional lease is in principle free, the lease contract may provide for a ban on assignment, total or partial. For the commercial lease, the assignment is free and any clause prohibiting the assignment of the commercial lease is void. On the other hand, the contract can frame the transfer of the commercial lease, for example, with a clause authorizing the transfer of the lease only in the event of total sale of the business or requiring the participation of the lessor in the act of transfer.

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