Question 5054 — commerce and crafts

Summary

Ms. Catherine Fabre questions the Minister of Territorial Cohesion at the request of Incité-Bordeaux regarding the application of law no. 2014-626 of June 18, 2014 relating to crafts, commerce and very small businesses known as the “Pinel law” which notably establishes a new right of pre-emption for the benefit of the tenant of commercial or artisanal premises. As it stands, the law provides for five exceptions to the right of pre-emption and in particular one of the exceptions to the application of the commercial pre-emption right provided for in the last paragraph of article L. 145-46-1 concern cases of “global transfer of a building including commercial premises”. There is a debate on the question of whether the sale of a building which includes only one and only commercial premises is or not subject to the legal preferential right of acquisition of the commercial lessee of article L. 145-46-1 of the code of commerce, or if this sale falls under one of the exceptions to this application, (paragraph 6 of this article), namely that of the global transfer of a building including commercial premises. Two ministerial responses were published in April 2016 and December 2016 on this subject (question AN No. 92592 from Ms. Frédérique Massat, OJ AN of April 12, 2016, p. 3106 and question AN No. 98594 from Mr. Didier Quentin, OJ AN of December 6, 2016, p. 10078) and provide response elements. They appear to exclude the tenant's right of pre-emption subject to contrary interpretation by the courts. Case law has not yet resolved the issue relating to the application of the exception in the case of transfer of a building comprising a single commercial premises. In practice these elements of response prove insufficient and notaries refuse to execute deeds without serving the right to pre-emption established for the benefit of the tenant in the cases set out above. These uncertainties are making many sales more complex today and creating new risks for potential buyers. She asks him if he can provide more details on this case of global transfer of a building comprising only one commercial premises.

Machine translation from French. The official text remains authoritative.

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