The commercial tenant's right of first refusal (Art. L. 145-46-1): clearing the sale or structuring the transaction to avoid it

The sale of an asset let to a retailer often turns on a single act: the registered letter sent to the tenant before the preliminary sale agreement (promesse de vente) is signed. A clearance procedure (purge) that is badly calibrated, a price revised during negotiation without a second notification, a unit wrongly classed as offices, and the sale itself becomes open to challenge. Law No. 2026-403 of 26 May 2026 amended Article L. 145-46-1 of the French Commercial Code by inserting two statutory definitions that redraw the scope of the commercial tenant's right of first refusal (droit de préférence), applicable to transfers taking place after its promulgation. This guide sets out, from the standpoint of the institutional landlord and the seller of an asset, the clearance mechanism to be followed, the cases of exclusion that the text lists exhaustively, the structures whose treatment remains debated, and the real exposure to the risk of nullity.

What the Law of 26 May 2026 changes for the seller of a let asset

Two statutory definitions where the text was silent

Until the reform, Article L. 145-46-1 referred to premises "for commercial or craft use" without defining either. Disputes over classification therefore turned on the contractual use, the actual use and the respective share of floor areas. The wording resulting from the Law of 26 May 2026 settles the question with two definitions inserted in the body of the article itself.

"Premises for commercial use, within the meaning of the first paragraph, means any premises intended for the carrying on, as a principal activity, of a retail or wholesale business or of commercial services, including storerooms and adjoining areas assigned to those activities or services, to the exclusion of premises for the exclusive use of offices and warehouses."

The definition of craft premises follows the same structure: an independent professional activity of production, processing, repair or provision of services appearing on a list established by decree of the Conseil d'Etat, storerooms and adjoining areas included, warehouses excluded. The reference to a decree of the Conseil d'État calls for a check on the state of regulatory publication before any transaction involving craft premises: classification now depends on an administrative list.

Offices and warehouses: an exclusion from the scope, not an exclusion of the sale

Two operational lessons for a seller of an office or logistics asset. First, premises for the exclusive use of offices fall outside the scope of the right of first refusal. The qualifier is restrictive: a floor housing a showroom or a commercial service activity receiving customers is not premises for the exclusive use of offices. The seller must reason on the actual use, not solely on the lease nomenclature or the planning designation.

Second, warehouses are excluded from both definitions, commercial and craft. But the text expressly includes, within the scope of the right, storerooms and adjoining areas assigned to those activities. A sales unit with its rear storeroom forms a whole that is subject to clearance; a standalone warehouse, let as such, is excluded. The boundary depends on the principal use and on the adjoining nature of the space, two criteria that the seller has an interest in documenting before marketing the asset, by means of a floor-area survey and a statement of use.

Application over time: the timing trade-off

The application note to the text is unambiguous:

"In accordance with II of Article 61 of Law No. 2026-403 of 26 May 2026, these provisions, in their wording resulting from I of the aforementioned article, apply only to transfers taking place after the promulgation of that law."

Earlier transfers remain governed by the wording resulting from the Law of 21 February 2022, that is, without statutory definitions. In practical terms, an asset sold in the second half of 2026 falls under the new text; a dispute concerning a sale made in 2024 or 2025 is decided on the former wording, and the classification analyses carried out at the time cannot be transposed. For transactions currently being completed, the date of the transfer must be identified precisely, not the date of the preliminary agreement.

The clearance mechanism: a timeline to be locked down act by act

The initial notification constitutes an offer of sale

Where the owner of premises for commercial or craft use plans to sell them, the owner informs the tenant by registered letter with acknowledgment of receipt, or by hand delivery against a receipt or signature. Two substantive requirements:

• the notification must, on pain of nullity, state the price and the terms of the proposed sale;
• it constitutes an offer of sale in favour of the tenant.

This second point is structuring for the seller. Clearance is not mere information: it is a firm offer, the acceptance of which forms the sale on the terms notified. The price announced must therefore be the price that the seller is prepared to receive from the tenant, service charges and terms included. Notifying a comfort price, higher than the one actually negotiated with the prospective purchaser, mechanically triggers the second notification analysed below, with an additional month's delay on the closing timetable.

The statutory time limits: one month, two months, four months

The tenant has one month from receipt of that offer to respond. The starting point is receipt, not dispatch: the handling of the acknowledgment of receipt determines the computation, and hand delivery against a receipt or signature secures the date.

If the tenant accepts, the tenant has two months, from the date the reply is sent to the landlord, to complete the sale. If the reply states an intention to take out a loan, the acceptance is conditional on obtaining the loan and the completion period is extended to four months. The text then provides the sanction for overrunning: If, at the end of that period, the sale has not been completed, the acceptance of the offer of sale is without effect.

The seller must build this sequence into the sale timetable. Between the initial notification and the seller's release where an acceptance is not followed by completion, the horizon can reach five months. Any preliminary agreement granted to a third party must include a condition precedent of clearance drafted on these exact time limits, with a long-stop date after expiry of the four-month period where the tenant may finance the purchase by borrowing.

The second notification where the price or terms are more favourable

This is the most frequent point of failure in transactions involving the sale of a let asset. Where the owner decides to sell on terms or at a price that are more favourable to the purchaser, the notary (notaire) must, where the landlord has not already done so, notify the tenant of those terms and that price, in the form provided for in the first paragraph, on pain of nullity of the sale.

This second notification in turn constitutes an offer of sale. It is valid for one month from its receipt; an offer that has not been accepted within that period lapses. The completion periods are identical to those of the first offer: two months, extended to four months where a loan is notified in the reply.

Two reflexes for the seller. First, any downward price revision made after clearance, including as a price reduction negotiated after a technical or environmental audit, reopens the obligation to notify. Second, the notion of "more favourable terms" is not limited to price: the seller taking on the cost of works, an extended asset and liability warranty or staggered payment may constitute an advantage granted to the purchaser. The clearance audit must cover the overall economics of the transaction, not the price line alone.

The mandatory reproduction of the provisions in each notification

The text adds a separate formal requirement: The provisions of the first four paragraphs of this article are reproduced, on pain of nullity, in each notification. Three practical points.

Reproduction is required in each notification, the first as well as the second. A template letter used for the initial clearance and not repeated in the notarial notification of the revised price exposes the sale to nullity. Moreover, the reference to the "first four paragraphs" must be checked against the actual division of the text as published after the Law of 26 May 2026, since the insertion of the two definitions has changed the structure of the article. In practice, prudence requires reproducing the whole article in the notification: excess reproduction is not penalised, incomplete reproduction is.

The cases of exclusion: an exhaustive list not to be extended

Article L. 145-46-1 lists the situations in which it does not apply. This list is closed, and its interpretation determines the security of the transaction.

The three exclusions relating to the commercial configuration

The right of first refusal does not apply in the case of:

• a single sale of several units forming part of a commercial complex;
• a single sale of separate commercial premises;
• a sale of commercial premises to a co-owner of a commercial complex.

These exclusions cover most portfolio arbitrage. The block sale of several units in a shopping centre, or the single sale of several shops located in different buildings, falls outside the text. The criterion is the singleness of the sale: one deed, one overall price, one purchaser. Splitting the transaction into successive sales to the same purchaser, for financing or tax reasons, loses the benefit of the exclusion. The exact scope of the notions of "commercial complex" and "separate commercial premises" is a matter for the courts: a seller cannot rely on an extensive reading without analysing the actual configuration of the asset.

The overall sale of a building containing commercial premises

The article also does not apply to the overall sale of a building containing commercial premises. This is the exclusion most relied on by investors: the sale of an investment building (immeuble de rapport) whose ground floor is let to a retailer does not need to be cleared. The difficulty is concentrated on the single-use building let in its entirety to a single tenant, a situation in which the boundary between "overall sale of a building" and "sale of the premises" is debated and decided case by case by the courts. For an asset of this kind, protective clearance remains the most defensible course: it costs a delay in the timetable, whereas the absence of clearance potentially costs the sale.

The intra-family sale

Also outside the scope is the sale of premises to the landlord's spouse, or to an ascendant or descendant of the landlord or of the landlord's spouse. The exclusion is of strict construction and is read on the wording of the text: it covers neither collateral relatives, nor partners bound by a civil partnership (pacte civil de solidarité), nor companies controlled by those persons.

The interaction with public pre-emption: a partial neutralisation

The last paragraph disapplies the article where the right of pre-emption established by Chapters I and II of Title I of Book II of the Town Planning Code is exercised, or on the occasion of the disposal of a property under Article L. 213-11 of the same Code.

Two provisions of the Town Planning Code clarify this interaction, and both refer to the first five paragraphs of Article L. 145-46-1 of the Commercial Code. Article L. 213-9 disapplies them on the occasion of the exercise of the right of pre-emption over the property, while maintaining an obligation specific to the seller: where the holder of the right of pre-emption has notified its intention to acquire, the owner is required to inform the tenants, lessees or occupants in good faith of the property and to make them known to that holder. Article L. 213-11 disapplies them on the resale by the holder of the right of pre-emption of a pre-empted property.

A major point of vigilance for ground-floor assets: the municipal right of pre-emption over craft businesses, businesses (fonds de commerce) and commercial leases within a perimeter for the protection of local commerce and crafts, provided for in Article L. 214-1 of the Town Planning Code, falls under Chapter IV and is not covered by the exclusion in the last paragraph of L. 145-46-1. The two mechanisms in fact have different objects: one concerns the disposal of the premises, the other the disposal for consideration of the business or the lease, which is subject, on pain of nullity, to a prior declaration to the municipality. The clearance of the commercial right of pre-emption under Article L. 214-1, from the prior declaration to the nullity of an uncleared sale, is dealt with separately.

Structures outside the scope: what is debated, what creates exposure

The text refers to the owner who "plans to sell" the premises. It states no exclusion for transactions that transfer control of the asset without a direct sale: sale of the shares of the owning company, contribution to a company, merger or universal transfer of assets and liabilities (transmission universelle de patrimoine), transfer in lieu of payment (dation en paiement), exchange, court-ordered sale by auction (adjudication), sale by auction between co-owners (licitation), sale ordered under a disposal plan. The absence of mention in the text amounts neither to an exclusion nor to an inclusion: the treatment of these structures rests on the interpretation of the notion of sale and on case law.

The operational consequence is twofold. First, the sale of the shares of the holding structure is the classic tool for escaping the scope of a right of first refusal attached to the premises themselves: the asset does not change owner, it is the share capital of the company that changes hands. Second, a structure built solely to deprive the tenant of its right, without economic substance of its own, is exposed to challenge on the ground of fraud. A share-based structure must therefore be justified by reasons specific to the transaction (transfer taxation, assumption of financing, guarantees in place, timetable), and the transaction file must keep a record of those reasons. On the terms of a sale of SCI (French property holding company) shares between investors, in particular approval, price setting and the liability warranty, see our dedicated analysis.

The same caution applies to occupiers who do not hold a commercial lease within the meaning of Article L. 145-1: tenants under a short-term derogatory lease (bail dérogatoire) under Article L. 145-5, subtenants, occupiers under a precarious occupancy agreement, lessee-managers. None of the applicable texts expressly settles their position as regards clearance. In a case where the tenant claims the statute, the pragmatic course is to carry out clearance without prejudice to classification, expressly reserving the landlord's position on the application of the statute. The regime of the short-term derogatory lease and its conversion into the statute governing commercial leases is set out in our article on short-term leases.

Sanction, limitation and waiver: the seller's real exposure

Three distinct statutory sanctions

The article provides for nullity in three situations that must be kept separate, because they penalise neither the same acts nor the same persons:

• a notification that does not state the price and the terms of the proposed sale is void;
• failure by the notary to notify the more favourable terms and price granted to the purchaser is sanctioned by nullity of the sale;
• a notification that does not reproduce the provisions referred to by the text is void.

The second situation is the most serious: it places the notarised deed (acte authentique) itself at risk of annihilation, and it engages the liability of the drafting notary.

What the text does not provide

The text does not expressly provide for the tenant to be substituted for the purchaser. This is a notable difference from the ordinary-law regime of the right of first refusal agreement (pacte de préférence): Article 1123 of the Civil Code, in its wording resulting from Ordonnance No. 2016-131 of 10 February 2016, gives the beneficiary compensation for its loss, and allows an action for nullity or substitution only where the third party knew of the existence of the agreement and of the beneficiary's intention to rely on it. The same article gives the prospective purchaser a written interrogatory action, failing a reply within a reasonable time, after which the beneficiary may no longer seek substitution or nullity.

For a landlord who has included in the lease a contractual preference clause wider than the statutory right, the distinction is decisive: the clause falls under the regime of Article 1123, the statutory right under that of Article L. 145-46-1. The two coexist and must be cleared according to their own logic.

As for the sanction for a complete absence of notification, which the text does not expressly contemplate, it is determined by the courts. A seller therefore cannot count on a sanction limited to damages.

Two-year limitation period

Article L. 145-60 of the Commercial Code provides that all actions brought under this chapter are time-barred after two years. The action of the evicted tenant falls within this period. Its starting point, and its interaction with land registration (publicité foncière), are matters for the judges: a seller should not assume that the mere signature of the notarised deed automatically starts the period running.

The tenant's advance waiver

It is common to see a clause proposed, during the negotiation of a lease or an amendment, by which the tenant waives in advance the benefit of Article L. 145-46-1. The reliability of this type of clause must be assessed with caution. Article L. 145-15 of the Commercial Code, which deems unwritten clauses that defeat the right to renewal and the provisions of Articles L. 145-4, L. 145-32-1, L. 145-37 to L. 145-41, the first paragraph of Article L. 145-42 and Articles L. 145-47 to L. 145-54, does not refer to Article L. 145-46-1. A textual argument therefore exists, but the public-policy character of the right of first refusal is a matter for case law, not for the text. An advance waiver clause does not, as matters stand, constitute protection on which to base a sale timetable.

A special case to know: mountain tourist residences

Article L. 321-5 of the Tourism Code authorises the operator of a tourist residence located in a mountain area to assign free of charge the right conferred by Article L. 145-46-1 to a public body with responsibility for it, to a semi-public company (société d'économie mixte), to a local public company or to an operator approved by the State. The assignment must be recorded in writing, on pain of nullity. It takes effect against the owner of the premises when it has been served on the owner or when the owner acknowledges it, and, from that date, the information owed by the owner must be given to the assignee.

For the owner of a unit in a high-altitude tourist residence, the consequence is direct: the recipient of the notification may no longer be the operator. Before any clearance, it must be verified that no assignment of the right has been served.

What the seller must decide before putting the asset on the market

The commercial tenant's right of first refusal is not an obstacle to the sale of a let asset: it is a constraint of timing and classification, the cost of which is measured in weeks when it is anticipated, and in nullity when it is dealt with at the end of the process. The reform of 26 May 2026 has shifted the centre of gravity of disputes: yesterday on the notion of commercial premises, tomorrow on the boundary between a sales unit with adjoining storerooms, offices for exclusive use and a warehouse, and on the regulatory list of craft activities.

Our position, on the seller's side, comes down to three decisions. Classify the asset before setting the price, by a documented statement of use, rather than relying on the contractual use under the lease. Carry out protective clearance whenever an exclusion is arguable but not certain, in particular for a single-use building let to a single tenant: the cost of the delay is known, that of nullity is not. Finally, lock down the price revision clause in the preliminary agreement: any price reduction granted to the purchaser after clearance reopens the obligation to notify, on pain of nullity of the sale.

Before signing a preliminary agreement relating to an asset let to a retailer or a craftsman, have a classification note prepared on the premises in light of the definitions resulting from the Law of 26 May 2026, together with a clearance timetable allowing for the four-month period for obtaining a loan. It is at this stage, and not at the notary's office, that the risk is neutralised.

Frequently asked questions

Are premises for the exclusive use of offices subject to the tenant's right of first refusal? No. Since Law No. 2026-403 of 26 May 2026, Article L. 145-46-1 defines premises for commercial use as any premises intended for the carrying on, as a principal activity, of a retail or wholesale business or of commercial services, to the exclusion of premises for the exclusive use of offices and warehouses. The exclusion requires exclusive use: the presence of a showroom or of a service activity receiving customers takes the premises outside this exclusion. Classification must be assessed on the actual use, not solely on the wording of the lease.

What time limits should be allowed for in the sale timetable to clear the right of first refusal? The tenant has one month from receipt of the offer to respond. If the tenant accepts, the tenant has two months, from the date the reply is sent, to complete the sale, extended to four months if the reply states an intention to take out a loan. At the end of that period, if the sale has not been completed, the acceptance of the offer is without effect. A prudent timetable therefore allows for a window of up to five months.

Must the block sale of a building containing shops be cleared? Article L. 145-46-1 does not apply to the overall sale of a building containing commercial premises. The exclusion covers the sale of an investment building part of which is let to retailers. The difficulty is concentrated on the single-use building let to a single tenant, a situation whose treatment is a matter for the courts. For this type of asset, protective clearance remains the safest course.

Does a price reduction negotiated after clearance require the tenant to be notified again? Yes. Where the owner decides to sell on terms or at a price that are more favourable to the purchaser, the notary must, if the landlord has not already done so, notify those terms and that price to the tenant, on pain of nullity of the sale. This second offer is valid for one month from its receipt and lapses if it is not accepted within that period. The notion of advantage is not limited to price: it covers the terms of the transaction.

Does selling the shares of the owning SCI make it possible to avoid the right of first refusal? The text refers to the owner who plans to sell the premises and mentions neither a sale of shares, nor a contribution, nor a merger. The transfer of the share capital of the holding structure does not constitute a sale of the premises by their owner. This reading, commonly adopted in practice, rests on the interpretation of the notion of sale and not on a textual exclusion. A structure with no economic substance other than the removal of the tenant remains exposed to challenge.

Can the tenant waive its right of first refusal in advance in the lease? Article L. 145-15 of the Commercial Code, which deems unwritten clauses that defeat certain provisions of the statute, does not refer to Article L. 145-46-1. A textual argument in favour of the validity of a waiver therefore exists, but the public-policy character of the right of first refusal is assessed by case law. A seller should not base its sale strategy on an advance waiver clause.

Within what period can the evicted tenant bring an action? Article L. 145-60 of the Commercial Code provides that all actions brought under this chapter are time-barred after two years. The action of a tenant deprived of its right of first refusal falls within this two-year period. The starting point of the limitation period and its interaction with land registration are matters for the judges, and cannot be taken for granted as of the date of the notarised deed.