Commercial Lease: Failure to Deliver, Disrepair and Limitation – Can Works Be Demanded Years Later?

A commercial premises ages: water ingress, a tired roof, deteriorated façades, roads in poor condition… Many tenants give up on taking action because they "knew the condition of the premises" when they signed, or because several years have passed. Two recent judgments of the Cour de cassation recall, on the contrary, a simple and very practical idea: the landlord's essential obligations fall due throughout the term of the lease; if the breach persists, the tenant may take action, in particular to obtain works, without limitation being mechanically raised against it if the defect persists.

I. The framework: delivery and quiet enjoyment, "continuing" obligations

A lease is a contract of hire (French Civil Code, Art. 1709).
By the very nature of the contract, the landlord must: (i) deliver the leased property (délivrance), (ii) maintain it in a condition fit for its intended use, and (iii) ensure the tenant's quiet enjoyment (jouissance paisible) of it during the lease (French Civil Code, Art. 1719, 1° to 3°).
This maintenance obligation is clarified by Article 1720: delivering the property "in a good state of repair" and carrying out, during the lease, all necessary repairs other than tenant's repairs.
In the case of disrepair through age, repairs deemed to be tenant's repairs are not borne by the tenant (French Civil Code, Art. 1755). The allocation of major repairs between landlord and commercial tenant is examined in our article on Article 606 of the French Civil Code and the commercial lease.

On the other side, the general limitation period for personal actions is five years from the day the holder knew (or should have known) the facts enabling it to act (French Civil Code, Art. 2224).
The whole difficulty is therefore to identify the triggering "fact" when the alleged non-performance continues.

II. The judgment of 4 December 2025: the court must check whether the breach still exists on the day of the summons

In the case decided on 4 December 2025, the tenant sought an order requiring the landlord to carry out works made necessary by disrepair and to compensate it. The court of appeal had dismissed the delivery obligation by relying on the initial condition of the premises (known and apparent) and had raised the five-year limitation period.

The Cour de cassation quashed: the obligations of delivery and quiet enjoyment are continuing and fall due throughout the term of the lease; the persistence of the breach is therefore a fact enabling the tenant to bring an action for enforced performance. In concrete terms, the court of appeal could not simply reason "as at signature": it had to examine whether a failure to deliver persisted on the day of the summons (Cour de cassation, 3rd Civil Chamber, 4 December 2025, No. 23-23.357, FS-B).

A practical point: this does not mean that every claim for damages would be outside limitation; but, for an action seeking to enforce an obligation that continues (works, restoring compliance), a defence based on a single starting date (signature, initial discovery) becomes much harder to sustain if the breach is current.

III. A line confirmed by the judgment of 10 July 2025

A few months earlier, the Cour de cassation had adopted the same reasoning in relation to an action for termination of the lease: for as long as the reduction of the leased area and the obstructions to access persisted, an action based on failure to deliver or ensure quiet enjoyment could not be declared time-barred by fixing the starting point at the day the tenant became aware of them (Cour de cassation, 3rd Civil Chamber, 10 July 2025, No. 23-20.491, FS-B). The tenant's reliance on the landlord's breaches in response to a formal demand (commandement) is analysed in our article on the termination clause in commercial leases and the defence of non-performance.

The judgment of 4 December 2025 is the "enforced performance" counterpart: a tenant who wishes to continue the lease may ask the court to order the works (French Civil Code, Art. 1221), subject to the limits specific to performance in kind.

IV. Practical consequences

For landlords

• An "as is" clause, or initial knowledge of the defects, does not neutralise the delivery obligation: it does not release the landlord (Cour de cassation, 3rd Civil Chamber, 5 June 2002, No. 00-19.037).
• The winning strategy is preventive: traceability of reports, diagnostics, quotes, works timetable, and reasoned decisions (in particular if attributability, or whether the works are tenant's repairs or not, is disputed).

For tenants

• Whether an action for works is admissible turns on the persistence of the breach: the current condition must therefore be documented (reports, dated photographs, expert reports, quotes, correspondence).
• The claims must also be distinguished: performance (restoration) on the one hand; damages on the other (often debated by reference to Art. 2224 for older losses).

For property professionals

Managers, asset managers, property managers (syndics) and advisers must adapt their processes: centralising alerts, evidence of interventions, and drafting of leases (allocation of works and charges), without losing sight of the fact that the obligation of conforming delivery remains a foundation that is hard to circumvent.

V. Litigation: what courses of action (including subsidiary ones)?

Before acting, a few prerequisites should be checked: characterisation of the lease (commercial lease or not), contractual use, inventory of fixtures, works and charges clauses, and above all the existence of a current breach (delivery, maintenance, quiet enjoyment).

Main courses of action for the tenant: formal notice (mise en demeure); amicable expert report followed by evidence-preserving summary proceedings (référé probatoire) (Code of Civil Procedure, Art. 145); "useful measures" summary proceedings if urgent (Code of Civil Procedure, Art. 835); action on the merits for enforced performance (French Civil Code, Art. 1221) with a penalty payment (astreinte) (Code of Civil Enforcement Procedures, Art. L. 131-1). Additional claims: contractual damages (French Civil Code, Art. 1231-1); or, if necessary, judicial termination where the breach makes continuing the lease untenable (reasoning confirmed by the judgment of 10 July 2025). On the respective evidential value of these two forms of expert report, see our analysis of amicable or adversarial expert reports.

Subsidiary courses of action (rarer, but to be kept in mind): if the landlord is a failing entity or one organised to avoid performance, the creditor's ordinary-law actions may come into play (indirect action (action oblique), French Civil Code, Art. 1341-1; Pauline action (action paulienne), French Civil Code, Art. 1341-2), depending on the asset configuration.

On the landlord's side: the defence should concentrate on (i) the reality and attributability of the breach, (ii) the nature of the works (tenant's repairs or not), and (iii) the proportionality of performance in kind in light of Article 1221 (impossibility or manifest disproportion).

The key to reading these decisions is now clear: in matters of failure to deliver and quiet enjoyment, the analysis is made "as at the date of the summons". If a breach persists, limitation is not treated as if the dispute had arisen and ended on the day of signature. A quick review of the documents (lease, inventories of fixtures, correspondence, reports) makes it possible to choose the right course: structured negotiation, expert report, summary proceedings, or action on the merits to obtain works and secure the operation of the business.

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