Unpaid Rent under a Professional Lease: The Landlord's Remedies

A lawyer who lets out an office, a doctor practising from independent premises, an accountant whose tenant no longer pays: the landlord of premises used for professional purposes is often left without resources when the first payment is missed. The landlord sometimes wrongly assumes that the same rules apply as for a commercial lease, or, on the contrary, as for a residential lease. Yet the professional lease (bail professionnel) has its own regime, governed by Article 57 A of the Law of 23 December 1986, which leaves wide scope for freedom of contract and therefore depends on the quality of the initial drafting. This guide sets out the landlord's remedies in the event of unpaid rent under a professional lease, the eviction procedure suited to this type of premises, and above all the clauses that must have been provided for at signing so as not to end up without leverage.

The professional lease, a distinct regime not to be confused with others

The professional lease is the contract by which premises are let for the exclusive pursuit of a professional activity that is neither commercial, nor craft-based, nor industrial. It applies mainly to the liberal professions: lawyers, doctors, architects, accountants, paramedical professions, and independent consultants practising in their own name or through a civil partnership (société civile).

Its regime is set out in Article 57 A of Law No. 86-1290 of 23 December 1986, a provision inserted by Law No. 99-586 of 12 July 1999. This text lays down a few mandatory rules: the contract must be in writing, its term may not be less than six years, the tenant may terminate it at any time on six months' notice, and a landlord wishing to terminate it must give notice at least six months before the expiry date. For everything else, including the fate of unpaid rent, the professional lease refers to the general law of contract, that is, the Civil Code.

The decisive difference from the commercial lease

The most frequent confusion, and the most costly, is to reason as one would for a commercial lease. The commercial lease statute, governed by Articles L.145-1 et seq. of the French Commercial Code, contains a very tightly regulated statutory mechanism for enforcing the termination clause (clause résolutoire). Article L.145-41 of the French Commercial Code thus requires service of a payment order (commandement de payer) referring to the clause, followed by a one-month period before termination takes effect.

There is nothing of the kind in the professional lease. No provision of the 1986 Law sets a standard procedure for unpaid rent, provides for a statutory one-month period, or organises the automatic operation of the termination clause. The professional landlord therefore does not enjoy the procedural certainty of the commercial landlord, but is also subject to fewer formal constraints. Everything depends on what the contract provides. By way of comparison, the landlord's remedies for unpaid rent under a commercial lease, from the payment order to enforcement measures, are set out in a separate article.

What the professional lease does not give the tenant

Unlike a commercial tenant, the tenant under a professional lease has neither a right to renewal of the lease nor a right to eviction compensation if the lease is not renewed. A landlord who gives notice in the form required by Article 57 A has nothing to pay. This difference explains why the exact characterisation of the lease (professional, commercial or mixed) is a central issue: premises let to a professional who receives clients and builds up a business may, depending on the circumstances, fall under the commercial statute, with all its protections. The criteria for choosing between a commercial lease and a professional lease, together with the pitfalls specific to that choice, are set out in our article devoted to the question.

Why the absence of a standard termination clause changes everything

The termination clause is the stipulation by which the parties agree that the contract will be terminated automatically if one of them fails to perform a specified obligation, here the payment of rent. Without it, a landlord who wishes to end the lease for non-payment must seek judicial termination, which is slower and subject to the court's discretion.

The dual regime of termination under the general law

Since the 2016 reform of contract law, the Civil Code sets out termination of contracts in Articles 1224 to 1230. Three routes coexist:

• Termination by operation of a termination clause expressly provided for in the contract (Article 1225).
• Termination by unilateral notice from the creditor, at its own risk, after a formal notice that has remained unanswered (Article 1226).
• Judicial termination sought from the court (Article 1227).

For a lease involving occupation of the premises, unilateral termination by simple notice is risky: the tenant remains in the premises and the landlord will in any event have to obtain an enforceable title (titre exécutoire) in order to evict. In practice, the landlord relies either on a well-drafted termination clause or on an application for judicial termination.

The vital importance of a termination clause in the contract

Without a termination clause, the court seised of an application for termination assesses the seriousness of the breach and may grant the tenant time to pay under Article 1343-5 of the Civil Code. A two-month arrear may not be judged serious enough to justify termination, especially if the tenant pays up during the proceedings.

With a precisely worded termination clause, the court's margin of appreciation is greatly reduced: it finds that the conditions of the clause are met and that the payment order remained without effect within the stipulated period, and declares the clause to have taken effect. This is why the initial drafting of the lease is decisive, well before any dispute.

Amicable remedies: do not neglect them

Before any court action, a structured amicable phase remains useful, both to preserve the relationship and to build a solid file.

From the first delay, a dated written reminder makes it possible to record the default. If the arrear persists, the formal notice (mise en demeure) to pay, sent by registered letter with acknowledgement of receipt, is a legally important step: it causes default interest to run and conditions certain later actions, in particular unilateral termination under Article 1226 of the Civil Code. The formal notice must state the exact amount due, broken down by instalment, refer to the relevant clauses of the lease and set a reasonable period for remedying the default.

The landlord has every interest in documenting each exchange. A precise statement of account, a payment history and copies of letters will be indispensable if the dispute leads to proceedings. In parallel, if the lease is backed by security (security deposit, guarantee, independent guarantee), this is the time to activate the mechanism in accordance with the conditions provided.

The landlord's judicial remedies

When the amicable route fails, several judicial routes are open to the landlord, to be chosen according to the objective: recovering the sums, ending the lease, or both.

Summary proceedings to obtain a title quickly

Summary proceedings (référé) are often the most effective route for an arrear that is not seriously disputable. On the basis of Article 835, paragraph 2 of the French Code of Civil Procedure, the judge in summary proceedings may award an interim payment (provision) corresponding to the rent and charges due, provided the obligation is not seriously disputable. This interim payment order is an enforceable title allowing recovery to begin.

Where the lease contains a termination clause, the judge in summary proceedings may also find that the clause has taken effect, provided the payment order has remained without effect within the contractual period. Summary proceedings then have two effects: an order to pay and a finding that the lease is terminated, which opens the way to eviction.

The order for payment procedure for recovery alone

If the landlord wishes only to recover the sums due, without ending the lease, the order for payment procedure (injonction de payer) provided for in Articles 1405 et seq. of the French Code of Civil Procedure offers a simple and inexpensive route. The judge, on application, issues an order for payment, which the tenant may contest by lodging an objection. This procedure suits undisputed arrears where the landlord wishes to preserve the letting relationship.

Judicial termination of the lease

Where there is no termination clause, or where the landlord prefers a decision on the merits, judicial termination is sought from the judicial court (tribunal judiciaire). The judge then assesses the seriousness and persistence of the breach. A substantial and repeated arrear, not remedied despite the formal notice, generally justifies termination. The judge nevertheless has wide powers: he or she may refuse termination and grant the tenant time to pay under Article 1343-5 of the Civil Code, spreading the debt over a period of up to two years.

This route is slower than summary proceedings, but it makes the decision more secure where the dispute is complex, for example if the tenant disputes the amount of the charges or alleges a breach by the landlord of its own obligations (failure to deliver, defects affecting the premises).

The eviction procedure under a professional lease

Obtaining termination of the lease is not enough: as long as the tenant occupies the premises, the landlord must carry out an eviction procedure, governed by the French Code of Civil Enforcement Procedures.

The enforceable title, an indispensable prerequisite

No eviction may be carried out without an enforceable title: an order in summary proceedings finding the termination clause applicable, a judgment terminating the lease, or a Court of Appeal judgment. A landlord who took it upon himself or herself to change the locks or to prevent access to the premises would commit unlawful self-help (voie de fait), sanctioned both civilly and criminally. Recovery of the premises necessarily goes through the public authorities, under the supervision of a commissaire de justice (bailiff) (the new title of huissiers de justice since the reform that came into force in 2022).

The order to vacate the premises and the time limit

Once the title has been obtained, the commissaire de justice serves on the tenant an order to vacate the premises (commandement de quitter les lieux). Article L.412-1 of the French Code of Civil Enforcement Procedures provides in principle for a period of two months before the eviction may be carried out. This period may be shortened, or even removed, by the judge, in particular where the occupier entered the premises by unlawful self-help or where bad faith is established.

When the period expires, if the premises have not been vacated, the commissaire de justice carries out the eviction, if necessary with the assistance of the police, requested from the prefect.

The question of the winter truce

A point that is often misunderstood deserves clarification. The winter truce (trêve hivernale), provided for in Article L.412-6 of the French Code of Civil Enforcement Procedures, suspends evictions from 1 November to 31 March. This arrangement, however, protects inhabited premises. Premises used exclusively for professional purposes, with no living accommodation, fall outside the scope of the truce: eviction may be pursued there all year round. Vigilance is however required for mixed leases, in which the professional also lives on site: the presence of living accommodation may trigger the winter protection.

The fate of furniture and equipment

On eviction, professional equipment and furniture left in the premises are inventoried by the commissaire de justice. The tenant has a period in which to retrieve them, failing which they may be sold or declared abandoned in accordance with the French Code of Civil Enforcement Procedures. For a medical practice or an accountancy practice, this question is sensitive because of the presence of confidential data covered by professional secrecy, which calls for particular precautions.

The clauses to provide for when drafting the lease

The landlord's best protection is not in the dispute but at signing. A well-drafted professional lease turns an unpaid rent problem that is merely endured into a controlled procedure. Several clauses deserve particular attention.

The termination clause, the absolute priority

Since the 1986 Law provides no statutory mechanism, the termination clause must be expressly stipulated and carefully drafted. It specifies the breaches it penalises (failure to pay rent, charges or advance payments, failure to comply with the permitted use of the premises), the period allowed to the tenant to remedy the default after a payment order, and the conditions of its operation.

A recommended wording provides that, failing payment of a single instalment on its due date, and one month after a payment order that has remained unsuccessful, the lease will be terminated automatically if the landlord so elects. The words if the landlord so elects preserve the option to waive termination and to maintain the lease despite the breach, which leaves appreciable flexibility.

The penalty clause and late-payment interest

The penalty clause (clause pénale) makes it possible to provide for a lump-sum indemnity in the event of delay or of termination for the tenant's fault, for example an increase in the sums due or an occupation indemnity higher than the rent for the period following termination. Under Article 1231-5 of the Civil Code, the judge retains the power to moderate a manifestly excessive penalty clause, which calls for the amount to be set with restraint. On the validity of this clause, the judge's power of moderation and its drafting, see our analysis of the penalty clause in a commercial lease.

Payment guarantees

Backing the lease with security considerably reduces the risk of a definitive non-payment. Several options can be combined:

• A security deposit of an amount sufficient to cover several months' rent.
• A joint and several guarantee (cautionnement), for example from the partners of a cost-sharing civil partnership (société civile de moyens) or from a partner in a professional practice company (société d'exercice libéral).
• An independent first-demand guarantee, more protective than a guarantee because it is detached from the lease.

Where the tenant is a company, joint and several liability of the partners or a personal guarantee from the manager may make the difference between effective recovery and an unrecoverable debt in the event of liquidation.

The indexation clause and the joint liability clause

An indexation clause, linked for example to a relevant index published by INSEE (the French national statistics institute), secures the evolution of the rent and avoids disputes. Where there are several tenants, a joint liability clause between co-tenants makes it possible to claim the whole of the sums from any one of them, which is valuable when a practice brings together several practitioners.

Anticipating insolvency proceedings

If the tenant is the subject of safeguard, reorganisation or liquidation proceedings, the fate of the lease and the recovery of rent are governed by the rules of Book VI of the French Commercial Code. Debts arising before the opening judgment must be declared in the insolvency, and the termination clause for an earlier arrear has its effect paralysed. A clause anticipating this scenario, without being able to override the mandatory rules of insolvency proceedings, at least helps to clarify later obligations and to react quickly.

Conclusion

Unpaid rent under a professional lease puts the landlord in a paradoxical position: more freedom of contract than under a commercial lease, but also less of a statutory safety net. Article 57 A of the Law of 23 December 1986 governs neither the termination clause nor the procedure for unpaid rent, which are matters for the general law of contract and for the quality of the drafting. A lease with no termination clause condemns the landlord to judicial termination, with the uncertainty of the judge's discretion and of time to pay granted to the tenant. Conversely, a contract containing a precise termination clause, a calibrated penalty clause and solid payment guarantees turns an arrear into a rapid procedure, often handled through summary proceedings.

The position is clear: in a professional lease, everything is decided at signing, not in the dispute. Before letting professional premises, have your lease reviewed or drafted by a real estate lawyer, paying priority attention to the termination clause and the security. And if the arrear is already there, act quickly: a formal notice followed by a payment order, then summary proceedings, remains the most effective sequence for protecting your rights.

Frequently asked questions

Does the professional lease benefit from the automatic termination clause of the commercial lease? No. Article L.145-41 of the French Commercial Code, which governs the operation of the termination clause with a payment order and a statutory one-month period, applies only to commercial leases. The professional lease is governed by the general law of contract (Articles 1224 to 1230 of the Civil Code). Only a termination clause expressly stipulated in the contract allows the landlord to benefit from one, on the conditions that the landlord has itself set.

How long does it take to evict a tenant from professional premises? The time depends on the route chosen. Summary proceedings finding that the termination clause has taken effect can succeed within a few weeks to a few months. Once the enforceable title has been obtained, the order to vacate the premises opens a default period of two months (Article L.412-1 of the French Code of Civil Enforcement Procedures) before actual eviction, unless the judge grants a reduction.

Does the winter truce apply to a professional lease? In principle, no. The winter truce, from 1 November to 31 March, provided for in Article L.412-6 of the French Code of Civil Enforcement Procedures, protects inhabited premises. Premises used exclusively for professional purposes are not concerned and eviction may be pursued there all year round. The protection does apply, however, to mixed leases where the professional lives on site.

Can unpaid rent be recovered without ending the lease? Yes. The order for payment procedure (Articles 1405 et seq. of the French Code of Civil Procedure) or interim payment in summary proceedings (Article 835 of the same Code) make it possible to obtain an enforceable title to recover the sums due while maintaining the lease. This solution suits cases where the landlord wishes to preserve the letting relationship despite an isolated arrear that can be remedied.

What should be done if the premises serve as both a home and an office? A mixed lease falls under a particular regime, often influenced by the protective rules applying to housing. The exact characterisation determines the regime applicable to the arrear and to eviction, in particular the application of the winter truce. A case-by-case analysis by a lawyer is necessary, because the presence of living accommodation significantly alters the landlord's remedies.

Can the judge grant the tenant time to pay despite the arrear? Yes. Under Article 1343-5 of the Civil Code, the judge may spread or defer payment of the debt over a period of up to two years, taking into account the debtor's situation and the creditor's needs. This power is all the wider where there is no termination clause, which underlines the value of providing for one when drafting.

What guarantees should be requested when signing a professional lease? It is recommended to combine a security deposit covering several instalments, a joint and several guarantee or an independent first-demand guarantee, and a joint liability clause where there are several tenants. Where the tenant is a company, a personal guarantee from the manager secures recovery in the event of default, in particular if insolvency proceedings are opened.