ERP accessibility certificate: the obligation that conditions the operability of a commercial asset

A commercial unit at the foot of a Haussmann-style building, a retail park taken over at a court sale, an office building whose ground floor houses a bank branch: in each of these cases, the value of the asset depends on its ability to receive the public over time. Yet compliance with accessibility rules is not found in the lease or in the technical diagnostic file, and there is no statutory obligation to hand it over to the purchaser. It is verified in one specific document, the accessibility certificate (attestation d'accessibilité) provided for in the second paragraph of Article L164-2 of the French Construction and Housing Code, and in what became of the accessibility schedule (agenda d'accessibilité programmée) where the establishment was not compliant. This guide addresses the question from the standpoint of the landlord-owner and the purchaser: which document to require, who bears the filing obligation, who bears the cost of the works under a commercial lease (bail commercial), and what the real exposure is in the event of an inspection.

The foundation: an accessibility obligation attached to the establishment, not to its operator

Article L164-1 of the CCH sets out the rule for existing buildings: existing facilities open to the public and establishments open to the public (ERP) located in an existing built environment are made accessible, in the parts open to the public, according to conditions specific to their type and category, and a public accessibility register is kept there. The obligation is twofold: a substantive obligation to make the premises accessible, and a documentary obligation to keep a register.

Article L164-2 adds the filing requirement. The owner or operator of an ERP or of a facility open to the public existing on 31 December 2014 sends to the administrative authority a document establishing the establishment's compliance with accessibility requirements. Failing that, it was required to submit an accessibility schedule under the conditions of Chapter V.

This alternative still structures the analysis of a commercial asset today. An ERP existing on 31 December 2014 is necessarily in one of the following three situations: it was compliant and an accessibility certificate was sent; it was not and an accessibility schedule (Ad'AP) was filed, then carried out or not; or nothing was done, and the asset carries a latent administrative liability. The first question of the audit is therefore not “is the establishment accessible?” but “which document was sent, to whom, and when?”.

The accessibility certificate: content, form and recipients (Art. R165-3)

Paragraph II of Article R165-3 names the document provided for in Article L164-2: it is called an "accessibility certificate". The text fixes its mandatory content, and it is that content which makes it possible to judge, in due diligence, whether the document produced by the seller has any value.

The certificate states the name of the establishment, its category and type, the name and address of the owner or operator and its SIREN/SIRET number or, failing that, its date of birth. It then lists the documents establishing compliance, which must be attached. A substantial exception exists for fifth-category ERPs, which account for most street-level retail: the certificate may consist of a sworn declaration of compliance, without supporting documents.

This exception is the main blind spot for a purchaser. A sworn declaration produced by an operator in 2015 establishes nothing about the real state of the premises eleven years later, and it has never been subject to a technical check. It evidences a step taken, not verified compliance.

Compliance is assessed at a specific date, set by paragraph I of Article R165-3: 31 December 2014 for establishments that were accessible at that date, and the date of filing of the application for works authorisation for establishments made accessible since 1 January 2015. Fit-out works carried out since, a change of partitioning, the creation of an entrance lobby or the rebuilding of a reception counter may have broken the accessible route without the original certificate bearing any trace of it.

As to recipients, paragraphs III and IV of Article R165-3 are precise: transmission to the prefect (préfet) of the département where the establishment is located, and a copy to the accessibility commission provided for in Article L2143-3 of the French General Code of Local Authorities of the municipality, which forwards it where appropriate to the competent inter-municipal commission. In practice, a certificate found in the seller's archives for which no prefectural acknowledgement of receipt can be produced must be treated as a certificate that was not sent.

Ad'AP: a closed mechanism whose litigation now concerns performance

The accessibility schedule is no longer a way out. Paragraph I of Article L165-2 required the Ad'AP project to be filed within twelve months of publication of Ordinance No. 2014-1090 of 26 September 2014, with limited extensions (a maximum of three years for financial difficulties linked to the assessment or programming of the works, twelve months for technical difficulties, six months where a first schedule is rejected). These periods expired long ago.

The operational consequence is simple: a purchaser who discovers a non-compliant ERP with no certificate cannot regularise the situation by filing an Ad'AP today. It inherits a bare non-compliance, which it will have to deal with through works and an ERP works authorisation, without the protective timetable that the schedule offered.

Where an Ad'AP has been approved, its duration may not exceed three years from approval, and, for eligible property portfolios, up to three periods of three years each at most (Art. L165-3). The longest schedules have therefore completed their last period. Current litigation no longer concerns filing but performance, completion and the finding of default.

The certificate of completion, a separate document not to be confused with it

Two documents coexist and are regularly confused in data rooms. The accessibility certificate of Article R165-3 records initial compliance. The certificate of completion (attestation d'achèvement) of Article R165-17 closes an Ad'AP.

The regime for this second document is more demanding. Paragraph I of Article R165-17 requires it to be drawn up by an approved technical inspector (contrôleur technique) holding an accreditation authorising it to work on buildings, or by an architect within the meaning of Article 2 of the Law of 3 January 1977 on architecture. For works subject to a building permit, the certificate provided for in Article L122-9 takes its place. Paragraph II reserves to fifth-category ERPs alone the option for the owner or operator to draw up the certificate itself, provided it is accompanied by all documents showing that the works and actions provided for in the schedule have been carried out.

Paragraph III sets the timetable: transmission to the prefect who approved the schedule and to each of the accessibility commissions of Article L2143-3 of the General Code of Local Authorities, within two months of completion of all the works where the schedule concerns only one establishment or one period. For multi-establishment and multi-period schedules, transmission takes place at the status review at the end of the first year, the mid-term review and the end-of-schedule review. A prefect who considers the documents produced by a fifth-category ERP insufficiently probative may require a certificate drawn up under the terms of paragraph I, within two months of the request.

Owner or operator: who bears the obligation (Art. R165-2)

This is the pivotal article for an institutional landlord, and it is often misread.

Paragraph I of Article R165-2 designates the owner as responsible for sending the accessibility certificate, for filing the application for approval of the Ad'AP, for extension requests, for sending the monitoring information of Article R165-16 and the certificate of completion of Article R165-17. The principle is therefore attribution to the owner.

Paragraph II provides for the exception:

These obligations nevertheless fall on the operator of the establishment or facility where the lease or the agreement for making the premises available transfers to it the accessibility obligations imposed on the owner.

Two lessons. First, the lease clause produces an explicit regulatory effect here: contrary to a widespread belief, the text itself accepts that the lease moves the filing burden to the tenant. Second, this effect presupposes that the lease transfers the accessibility obligations, and not merely compliance works in general or a general clause taking the premises as they stand. A landlord who intends to discharge itself must refer to the accessibility obligation in express terms, failing which it keeps the filing burden by default.

Paragraph III closes a loophole: where several persons undertake to contribute, in particular financially, to the works and other actions provided for in an Ad'AP, they may co-sign that schedule, without this circumstance having the effect of releasing the owner or operator from the obligations imposed on it. A cost-sharing agreement between landlord and retailer therefore does not amount to a transfer of the obligation.

What the transfer clause does not settle

The transfer of the filing obligation does not automatically transfer the cost of the works. These are two separate questions, governed by different provisions. In addition, how the clause under Article R165-2 II fits with the mandatory regime for charges in commercial leases and with the obligation of delivery under Article 1719 of the French Civil Code is a matter for the courts to assess. A landlord relying exclusively on a transfer clause to refuse any funding exposes itself to a challenge by the tenant on contractual grounds, even if the administration addresses itself to the operator.

The cost of works under a commercial lease: what Article R145-35 really prohibits

The statement that “accessibility works are at the landlord's expense” is inaccurate. The applicable text is narrower.

Article R145-35 of the French Commercial Code lists the charges that cannot be passed on to the tenant. Its paragraph 2 covers expenses relating to works intended to remedy obsolescence or to bring the let property or the building in which it is located into compliance with regulations, where they fall within the major repairs referred to in the preceding paragraph, that is, the major repairs (grosses réparations) of Article 606 of the French Civil Code. The distinction between major repairs and tenant's repairs is developed in our article on Article 606 of the French Civil Code in commercial leases.

The condition is cumulative: there must be both regulatory compliance work and a link to major repairs. Accessibility work that does not fall within Article 606 escapes the prohibition and may therefore, by contractual stipulation, be borne by the tenant. The concrete characterisation, depending on whether it concerns a removable access ramp, the reworking of a threshold, the creation of adapted sanitary facilities or the installation of a lift, is for the trial courts to assess case by case. It is precisely this uncertainty of characterisation that must be dealt with upstream, in the drafting of the lease and in the price.

A second timing point, often decisive: Decree No. 2014-1317 of 3 November 2014 applies only to contracts concluded or renewed from its publication. An old lease not renewed since escapes Article R145-35, and the charge-transfer clause it contains retains its contractual effect. In a portfolio of commercial premises, the landlord's exposure is therefore not uniform: it is measured lease by lease, according to the date of conclusion or renewal.

Information to the tenant and traceability of works

Article L145-40-2 of the French Commercial Code requires, for contracts concluded or renewed from 1 September 2014, a precise and exhaustive inventory of the categories of charges, taxes, duties and fees, with an indication of how they are split between landlord and tenant. It also requires, at the conclusion of the contract and then every three years, the communication of a forecast statement of the works planned for the following three years together with a forecast budget, and a summary statement of the works carried out in the preceding three years, stating their cost. On the framework resulting from the Pinel law and the charges that cannot be passed on to the tenant, see our table on the allocation of charges in commercial leases.

For a purchaser, these two statements are a direct source of information on how the seller has dealt with accessibility. A three-year forecast statement that is silent on accessibility works in a building that is manifestly non-compliant is a signal to use in negotiation.

Finally, Article 1719 of the French Civil Code remains the foundation: the landlord is bound to deliver the let property, to maintain it in a condition fit for the use for which it was let and to ensure the tenant's peaceful enjoyment of it. Where premises are let for operation as an ERP and cannot receive the public in compliant conditions, the dispute arises on this basis, independently of the contractual allocation of charges. The question of whether this obligation is enforceable throughout the term of the lease is dealt with separately in our article on failure to deliver in commercial leases.

Exposure in the event of an inspection: three tiers of penalties

Fixed financial penalties (Art. L165-6)

Unjustified failure to file the Ad'AP project within the time limits of Article L165-2 is punished by a fixed financial penalty of €1,500 where the schedule concerns a single establishment whose public capacity is below the threshold mentioned in paragraph II of Article L165-3, and €5,000 in other cases. The length of the delay is deducted from the duration of the schedule.

Unjustified failure to send monitoring documents, sending manifestly erroneous monitoring documents and failure to send the certificate of completion are punished by a fixed penalty of €1,500 or €2,500 according to the same criterion. These penalties are recovered as for claims other than tax and State property debts.

The finding of default (Art. L165-7)

This is the heaviest tier for a holder of property assets. The administrative authority that approved the Ad'AP may initiate a procedure for a finding of default (constat de carence) where there has been no start of performance at all, where there is significant delay in performing the commitments for the periods that have elapsed, or where, at the end of the timetable, the commitments have not been met.

The measures are graduated by paragraph II: revocation of the decision approving the Ad'AP and report to the public prosecutor where there has been no start of performance; setting aside of an accounting provision corresponding to the amount of the works not carried out in the event of significant delay; at the end of the timetable, a new timetable within the limit of twelve additional months, formal notice accompanied by an accounting provision, or a financial penalty.

Paragraph III sets the amount: the financial penalty may be between 5% and 20% of the amount of the works remaining to be carried out, without being able to exceed 5% of the self-financing capacity for a private-law legal entity or a public body, or 5% of the reference tax income of the penultimate year for an individual. A point to note for a holder structured as a company: the administration may request the documents establishing the self-financing capacity, and if there is no reply, the cap does not apply. Refusing to provide them is therefore not a strategy.

The basis of calculation deserves attention: it is calculated on the works remaining to be carried out, not on the value of the asset. The heavier the accessibility programme, the higher the exposure, which reverses the intuition that a massive non-compliance would be better tolerated than a marginal one.

Criminal risk on the certificates themselves (Art. R165-21)

Article R165-21 punishes with the fine provided for Class 5 petty offences (contraventions) in Article 131-13 of the French Criminal Code the act of producing an accessibility certificate that does not comply with the second and third paragraphs of paragraph II of Article R165-3, of producing a certificate of completion drawn up by a person other than those mentioned in paragraphs I and II of Article R165-17 or of using it, and, for a fifth-category ERP, of producing a certificate of completion not accompanied by all the supporting documents. The court may impose the penalty of display and publication of the decision under the conditions of Article 131-35 of the French Criminal Code, and the maximum is increased in the event of repeat offending under Articles 132-11 and 132-15.

The display penalty is the element to retain for an institutional landlord or a retailer: the risk is as much reputational as financial. In addition, the CCH provides for an offence for an owner or operator that has not fulfilled the obligations of Articles L164-1 to L164-3; the applicable wording of the provision setting the amount is being amended, and the amount must be checked case by case before any quantified risk analysis. Article L183-3, currently in force, for its part punishes with three months' imprisonment and a fine of €45,000 the continuation of works despite the court decision or the order requiring their interruption.

The public accessibility register, the first point of inspection

Article R164-6 places the preparation of the register on the operator of any establishment open to the public within the meaning of Article R. 143-2. The register contains full information on the services provided, the list of administrative and technical documents relating to accessibility, and a description of the training given to staff responsible for receiving disabled persons, with supporting documents. It must be made available to the whole public and updated regularly.

For a landlord, this register has a dual usefulness: it is the first document an inspector asks for, and on an acquisition it is the quickest inventory of the accessibility documents held by the operator. Its absence or poverty is a reliable indicator of the real state of the file.

Derogations: an asset valued on a derogation is a fragile asset

Article L164-3 lists four grounds for derogation: technical impossibility, manifest disproportion between the improvements made and their costs or their effects on the use of the building and its surroundings, constraints linked to the preservation of architectural heritage, and refusal by the co-owners (copropriétaires) by reasoned resolution passed under the conditions of Article 24 of Law No. 65-557 of 10 July 1965 for the opening of an ERP in an existing residential building. Derogations are granted after the opinion of the competent commission and must be accompanied by substitute measures for ERPs performing a public service mission.

Article R164-3 details the implementation by the prefect and adds in particular, under manifest disproportion, the case where the cost or nature of the works makes them impossible to finance or produces a critical negative impact on the economic viability of the establishment, established in particular by the exceeding of thresholds set by order.

The warning point for an investor is in the last paragraph of paragraph I. If the building or facility that benefited from a derogation is the subject of an application for a building permit or works authorisation altering the layout or equipment covered by that derogation, its continuation is subject to the filing of an application to that effect. In the absence of an application for continuation or of a new application, the derogation previously granted is deemed lapsed on the date the works begin.

The sequence is common: acquisition of a derogated unit, repositioning of the retailer, fit-out works, and loss of the derogation at the first spade in the ground. A derogation must therefore be treated as a conditional asset, to be secured in the authorisation timetable before any works campaign. For the particular case of refusal by the co-owners, Article L164-3 provides that where the owner or operator of the ERP bears the entire cost of the works, the refusal may be raised only on proof of at least one of the grounds of technical impossibility, manifest disproportion or architectural heritage.

Works and authorisations: the simplification resulting from the Law of 26 May 2026

Works leading to the creation, fitting out or alteration of an ERP may be carried out only after authorisation by the administrative authority, which checks their compliance with the accessibility rules of Article L161-1 and, where the public capacity and the nature of the establishment justify it, with fire safety rules (Art. L122-3). Verification of compliance with accessibility rules is not required where the works have no effect on the accessibility of the built environment. Where the works are subject to a building permit, the permit takes the place of the authorisation provided its issue was agreed by the same authority.

Law No. 2026-403 of 26 May 2026, in force since 28 May 2026, introduced a lighter route in the second paragraph of Article L122-3. For establishments of less than 300 square metres equipped with an extinguishing system suited to the fire risk or located in a railway station, where they keep the same activity, the works authorisation is replaced by a declaration that the works comply with accessibility and fire safety rules. This declaration, certified by a third party offering guarantees of competence and independence, is sent before the works begin to the administrative authority, which may object to it. The conditions of application are specified by decree of the Conseil d'État.

The time saving is real for small-format retail operations, but so is the counterpart: control shifts from the administration to a certifying third party, and the project owner's responsibility for the accuracy of the declaration is thereby reinforced. Before choosing this route, it must be checked that the three conditions are met, in particular that of keeping the same activity, which excludes retailer repositioning operations involving a change of use or ERP type.

What the purchaser must require before signing

No text read requires the accessibility certificate or the Ad'AP to be handed to the purchaser on a sale: these documents do not form part of the technical diagnostic file. Obtaining them is therefore a matter of negotiation and due diligence, and their absence must be dealt with by a condition precedent, a specific warranty or a price adjustment, not by a presumption of compliance.

The minimum list to ask for, asset by asset:

• the accessibility certificate and, above all, proof of its transmission to the prefect and to the municipal accessibility commission
• the prefectoral decision approving the Ad'AP, the monitoring information sent and the certificate of completion of Article R165-17, with verification of the capacity of its author
• any derogation decision, with identification of the arrangements it covers and verification that it has been maintained after the latest works
• the public accessibility register of each operator, with the content required by Article R164-6
• the ERP works authorisations issued since 2015 and the corresponding certificates of completion
• for each lease, its date of conclusion or renewal, the works and charges clause, and whether or not it contains a clause expressly transferring the accessibility obligations within the meaning of paragraph II of Article R165-2
• the three-year forecast and summary statements of Article L145-40-2

One point remains to be dealt with contractually: the fate of the Ad'AP and of derogations on a transfer of the building or of the business (fonds) is not settled by the provisions cited above. A prudent purchaser has the seller declare the exact state of the administrative position and obtains an undertaking to cooperate in the steps to be taken after the sale.

Conclusion

Accessibility is no longer a peripheral regulatory compliance subject: it is a component of the operability of the asset, on the same footing as energy performance or fire safety. With the Ad'AP mechanism closed, non-compliance can no longer be regularised through a timetable negotiated with the prefect; it is dealt with by works, under authorisation, with a financial exposure based on the amount of works remaining to be carried out and not on the value of the asset. Our reading is that an accessibility defect today weighs more heavily on the liquidity of the asset and on price negotiation than on the risk of immediate penalty: an informed purchaser applies a discount, a lender asks questions, a good-quality tenant walks away.

Two operational recommendations. For a landlord holding a portfolio of commercial premises, have a lease-by-lease map drawn up of whether there is a clause expressly transferring the accessibility obligations within the meaning of paragraph II of Article R165-2, distinguishing between contracts concluded or renewed before and after publication of Decree No. 2014-1317 of 3 November 2014: it is this double entry that determines your real exposure, and not the general wording of the works clause. For a purchaser, never settle for a copy of an accessibility certificate: require proof of its transmission to the prefect, and have an approved technical inspector or an architect check that the alterations made since have not broken the attested compliance.

Frequently asked questions

Can a fifth-category ERP make do with a sworn declaration? Yes. Paragraph II of Article R165-3 of the CCH provides that the accessibility certificate states the documents establishing compliance, which are attached, or, for fifth-category ERPs, contains a sworn declaration of that compliance. This tolerance concerns the form of the certificate, not the substantive obligation: the establishment must actually be accessible. For a purchaser, an old sworn declaration is no substitute for a technical audit and protects against no inspection.

Can an Ad'AP still be filed in 2026 to regularise a non-compliant ERP? No. Paragraph I of Article L165-2 required the schedule project to be filed within twelve months of publication of Ordinance No. 2014-1090 of 26 September 2014, with limited extensions (three years for financial difficulties, twelve months for technical difficulties, six months after rejection of a first schedule). These periods have expired. Bringing the premises into compliance now goes through works subject to ERP authorisation under Article L122-3, without a protective timetable.

Can a lease clause transfer to the tenant the obligation to send the accessibility certificate? Yes, in the terms of paragraph II of Article R165-2 of the CCH: the filing obligations fall on the operator where the lease or the agreement for making the premises available transfers to it the accessibility obligations imposed on the owner. The clause must refer expressly to these obligations. It does not, however, settle the financial burden of the works, which is governed by Article R145-35 of the French Commercial Code and the terms of the lease.

Are all accessibility works at the landlord's expense? No. Article R145-35, paragraph 2 of the French Commercial Code prohibits only charging the tenant with the cost of works to bring the premises into compliance with regulations where they fall within the major repairs referred to in Article 606 of the French Civil Code. Accessibility works that do not fall within that characterisation may be placed contractually on the tenant. This text applies only to contracts concluded or renewed from publication of Decree No. 2014-1317 of 3 November 2014.

What is the maximum penalty for failing to comply with an Ad'AP? Paragraph III of Article L165-7 of the CCH sets a financial penalty of between 5% and 20% of the amount of the works remaining to be carried out, capped at 5% of the self-financing capacity for a private-law legal entity and at 5% of the reference tax income of the penultimate year for an individual. If the person concerned does not send the documents establishing its self-financing capacity despite the administration's request, the cap does not apply. The fixed penalties of Article L165-6 are added to this.

Does an accessibility derogation survive a works campaign? Not automatically. Paragraph I of Article R164-3 provides that if the building is the subject of an application for a building permit or works authorisation altering the layout or equipment covered by the derogation, its continuation is subject to an express application. In the absence of an application for continuation or of a new application, the derogation is deemed lapsed on the date the works begin. This point must be dealt with before the authorisation is filed, not after.

Who must keep the public accessibility register? Article R164-6 of the CCH places its preparation on the operator of any ERP within the meaning of Article R143-2. It must contain full information on the services provided, the list of administrative and technical documents relating to accessibility and a description of the training given to reception staff with supporting documents, be made available to the whole public and be updated regularly. For a landlord, it is the first document to ask for in an audit of a commercial asset.