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Law No. 2014-626 of June 18, 2014 relating to crafts, trade and very small businesses, known as the “Pinel law”, reformed the status of commercial leases.
One of the major changes concerns the distribution of rental charges between the lessor and the lessee.
Until then, lessor and lessee were free to fix the distribution of the charges as they wished and often the major part of the charges was charged to the tenant.
The Pinel law and its decree came to fix the fate of rental expenses.
Thus, the Pinel law created an article L145-40-2 in the Commercial Code which specifies that:
“Any rental contract includes a precise and limited inventory of the categories of charges, taxes, duties and fees related to this lease, including an indication of their distribution between the lessor and the lessee. This inventory gives rise to an annual summary statement sent by the lessor to the tenant within a time limit set by regulation. During the lease, the lessor informs the lessee of new charges, taxes, duties and fees.
At the conclusion of the rental contract, then every three years, the lessor communicates to each tenant:
1° An estimate of the work that he plans to carry out in the following three years, together with an estimated budget;
2° A summary statement of the work he has carried out in the previous three years, specifying their cost.
In a real estate complex comprising several tenants, the rental contract specifies the distribution of the charges or the cost of the work between the different tenants occupying this complex. This distribution depends on the area exploited. The amount of taxes, duties and fees that may be charged to the tenant corresponds strictly to the premises occupied by each tenant and to the share of the common areas necessary for the operation of the leased property. During the lease, the lessor is required to inform the tenants of any element likely to modify the distribution of charges between tenants.
A Conseil d’Etat decree sets the terms of application of this article. It specifies the charges, taxes, duties and fees which, due to their nature, cannot be attributed to the lessee and the procedures for informing the lessees. »
From now on, at the time of the conclusion of the lease contract (or its renewal), an exhaustive list specifying all the charges, taxes, duties and fees must imperatively be drawn up. To this will be added a provisional statement of the work that the lessor plans to carry out within three years together with a provisional budget as well as a summary statement of the work already carried out over the past three years (these documents must be communicated at each deadline). triennial).
This list will also specify which of the lessor or the lessee will have to pay each of the charges.
However, decree no. 2014-1317 of November 3, 2014 imposes limitations on the free distribution of rental charges between lessor and lessee.
Indeed, the decree created article R145-35 of the Commercial Code which prohibits charging certain rental charges to the tenant.
Therefore, for commercial leases entered into or renewed from November 5, 2014, the tenant cannot be charged:
“1° Expenses relating to major repairs mentioned in Article 606 of the Civil Code as well as, where applicable, the fees related to the performance of this work;
2° Expenditure relating to work aimed at remedying the obsolescence or bringing the rented property or the building in which it is located into compliance with the regulations, provided that they relate to the major repairs mentioned in the paragraph previous ;
3° Taxes, in particular the territorial economic contribution, taxes and royalties for which the legal person liable is the lessor or the owner of the premises or building; however, the tenant may be charged the property tax and taxes additional to the property tax as well as the taxes, duties and fees related to the use of the premises or the building or to a service from which the tenant benefits directly or indirectly;
4° The lessor’s fees related to the management of the rents of the premises or building subject to the lease;
5° In a property complex, charges, taxes, fees, royalties and the cost of work relating to vacant premises or attributable to other tenants.
The distribution between the tenants of charges, taxes, duties and fees and the cost of work relating to the property complex may be conventionally weighted. These weightings are brought to the attention of the tenants.
Are not included in the expenses mentioned in 1° and 2° those relating to embellishment work the amount of which exceeds the cost of the identical replacement. »
As a result, the major repairs of article 606 of the Civil Code are the responsibility of the owner of the building.
Article 606 of the Civil Code specifies that major repairs are those of large walls and vaults, the restoration of beams and entire roofs, retaining dykes and fences. All other repairs are considered maintenance repairs.
The lessor is also solely responsible for expenses relating to work aimed at remedying the obsolescence or bringing the leased property or building into compliance with the regulations when they fall under the major repairs of article 606. .
However, it is important to specify that the embellishment expenses that exceed the cost of the identical replacement are not included in the expenses mentioned above.
It remains to define the contours of these embellishments and to specify whether only the part exceeding the simple cost of identical replacement will be borne by the tenant or if all the expenses will be charged to him.
Next, article R145-35 of the Commercial Code is very clear concerning the taxes, duties and fees for which the legal debtor is the lessor or the owner of the premises or building. They can no longer be charged to the tenant. This is particularly the case for the territorial economic contribution.
However, the property tax, the additional taxes to the property tax as well as the taxes, duties and fees related to the use of the premises or the building or to a service from which the tenant benefits directly or indirectly may be charged to the lessee. on lease.
Again, it is expressly provided that the lessor may no longer charge the tenant either the fees relating to the management of the building, or the fees related to the management of the rents of the premises or the building subject to the lease.
Finally, in a property complex, the charges, taxes, fees, charges and the cost of work relating to vacant premises or attributable to other tenants cannot be charged to a tenant. Only charges, taxes, levies, royalties and the cost of work relating to the property complex can be conventionally weighted between the lessees.
To conclude on the contributions of the pinel law and its decree of November 3, 2014, it is necessary to mention the obligation of the lessor to provide an annual summary statement of the charges.
This document includes the liquidation and regularization of the expense accounts and must be communicated to the tenant no later than either September 30 of the year following that for which it is established or within 3 months of the surrender. co-ownership charges over the year for co-owned buildings.
In addition, the lessor has the obligation to communicate, at the request of the lessee, any document justifying the amount of the charges, taxes, duties and fees charged to the latter.
Steve GRASSI law firm DAMY 25/06/2015