Background
Two landlords notified their commercial tenant, L’Esmeralda, that they intended to sell the leased premises. Acting under Article L. 145-46-1 of the Commercial Code, they offered the property to the tenant for €2.07 million, including €78,660 in real-estate agent’s fees.
L’Esmeralda accepted the stated price, including the agent’s fees. The parties executed a conditional sale agreement on October 12, 2018, and completed the sale on January 17, 2019. The tenant later sued the landlords to recover the allegedly undue agent’s fees and sought damages. The Paris Court of Appeal rejected those claims, reasoning that the parties could agree to place the fees on the tenant and that L’Esmeralda had knowingly accepted them.
The Court’s Holding
The Court of Cassation quashed the appellate judgment in its entirety. It held that an agent’s negotiation fees are not payable by a commercial tenant that accepts a landlord’s statutory sale offer under Article L. 145-46-1 because no intermediary is necessary or useful to accomplish the sale produced by operation of that provision.
Under Article 1302 of the Civil Code, a payment presupposes a debt, and anything received without being owed must be returned. Accordingly, a tenant that paid such negotiation fees may recover them even if it knew when paying that they were not legally due. The Court therefore rejected the appellate court’s conclusion that the tenant’s informed acceptance made the fees contractually enforceable.
The case was remanded to a differently constituted panel of the Paris Court of Appeal. The landlords were ordered to pay the costs of the cassation proceedings and €3,000 to L’Esmeralda under Article 700 of the Code of Civil Procedure.
Key Takeaways
- A commercial tenant exercising its statutory right to purchase leased premises cannot be required to pay the real-estate agent’s negotiation fee included in the landlord’s offer.
- If the tenant pays that fee, it may obtain restitution because no underlying debt existed.
- The tenant’s knowledge that the fee was not legally due does not defeat its restitution claim.
Why It Matters
The decision confirms that landlords cannot shift an unnecessary broker’s negotiation fee to a commercial tenant merely by including it in the offered price and obtaining the tenant’s informed agreement. It strengthens the practical value of the tenant’s statutory priority right by preventing brokerage costs from increasing the price of a transaction completed through that right.
The ruling also clarifies the remedial consequence: although merely mentioning the fee does not itself invalidate the statutory offer, a tenant that paid the fee may seek its return under the Civil Code’s rules governing undue payments.