Despite the summer period, the publication of real-estate news has not ceased. The real-estate team of the firm SQUADRA AVOCATS deciphers these latest developments for the players in the real-estate world.
Legislative developments
A simplification of civil procedure: decree no. 2025-619 of 8 July 2025
The decree known as "Magicobus II" pursues an objective of simplifying civil procedure.
It adds two new paragraphs after article 145 of the Code of Civil Procedure, which concerns investigative measures.
The first establishes an option of jurisdiction, at the claimant’s choice, between:
- The court likely to hear the case on the merits,
- Or, where applicable, the court in whose jurisdiction the investigative measure is to be carried out.
The second paragraph reserves exclusive jurisdiction to the court of the place where the building is located when the investigative measure relates to a building.
In a judgment of 21 June 2024 (23/57.361), the interim relief judge of Paris had declared himself to lack jurisdiction despite the clause conferring jurisdiction on the Paris court, in the name of the "principle of the proper administration of justice", which "requires retaining the exclusive jurisdiction of the president of the court ruling in interim proceedings in whose jurisdiction the measure is to be carried out, to the exclusion of any other jurisdiction", and taking into account the sometimes very great distance of the court seised from the place where the building is located and from the domicile of all the other parties.
However, the Paris Court of Appeal had, by judgment of 24 October 2024 and a press release, reaffirmed the option of jurisdiction in favour of the President of the court likely to hear the case on the merits or, alternatively, the one in whose jurisdiction the measure is to be carried out.
This amendment made by the decree ultimately reframes the debate over jurisdiction with regard to in futurum investigation. In essence, the provisions of the decree came into force on 1 September 2025 and apply to pending proceedings.
However, the rules of territorial jurisdiction regarding in futurum investigative measures apply only to proceedings instituted on or after 1 September 2025.
Recourse to alternative dispute resolution methods encouraged: decree no. 2025-660 of 18 July 2025
This decree aims to clarify and better structure the provisions relating to conventional investigation and the law of amicable dispute resolution methods. Among the amendments made:
- The repeal of article 240 of the Code of Civil Procedure, which prohibited the judge from giving a conciliation mission to an expert,
- Conventional investigation becomes the rule and judicial investigation the exception. It being specified that cases handled by conventional investigation are given priority scheduling,
- Two avenues of conventional case preparation are defined: ordinary conventional case preparation and the participatory procedure agreement for the purposes of case preparation,
- The generalisation of the injunction to meet a conciliator or a mediator ordered by the judge, and the introduction of a penalty for the party who, without legitimate reason, fails to comply with this injunction (payment of a civil fine of a maximum of 10,000 euros)
This decree, which came into force on 1 September 2025, largely applies to pending proceedings.
Case-law developments
Fate of rents in the presence of premises covered by a safety order:
Under article L. 521-2 of the Construction and Housing Code, the occupants of premises covered in particular by safety orders may benefit from the cessation of the chargeability of rents.
In this case, the Court of Appeal had ordered the suspension of the rents owed by the tenant to the landlord, considering that article L. 521-2 of the Construction and Housing Code applied to commercial leases.
While article L. 521-2 of the Construction and Housing Code provides for the cessation of the chargeability of rents, its wording resulting from ordinance no. 2020-1144 of 16 September 2020 provides for its application only to the occupation of a dwelling.
The Court of Cassation overturned this decision on the grounds that article L. 521-2 of the Construction and Housing Code provides for the cessation of the chargeability of rents only for the occupation of a dwelling.
It should be noted that, since then, the law of 9 April 2024 amended article L. 521-2 of the Construction and Housing Code by extending this measure to the occupation of professional or commercial premises.
Cour de cassation, 3ème Chambre Civile, 3 juillet 2025 n° 23-20.553.
In the presence of premises covered in particular by a safety order, article L. 521-2 of the Construction and Housing Code allowed the cessation of the chargeability of rents for the premises concerned but is applicable, in its wording resulting from ordinance no. 2020-1144 of 16 September 2020, only in the case of occupation of a dwelling.
Since the law of 9 April 2024, the application of the cessation of the chargeability of rents has been extended to the occupation of professional or commercial premises.
Limitation period in the event of breach of an obligation of delivery and peaceful enjoyment:
The landlord is required to deliver and to ensure the peaceful enjoyment of the leased property to the tenant during the term of the lease.
Pursuant to article 2224 of the Civil Code, personal or movable actions are time-barred after five years from the day on which the holder of a right knew or ought to have known the facts enabling him to exercise it.
However, the obligations of delivery and peaceful enjoyment are continuing obligations of the landlord and are chargeable throughout the term of the lease, so that the persistence of the landlord’s breach of them constitutes a fact enabling the tenant to bring the action for termination of the lease.
In this case, the landlord had reduced the scope of the lease by one third and the tenant had sued him for termination of the lease and for compensation.
Since the reduction of the scope of the leased property still persisted, the lessee may bring an action for termination at any time and not only within five years of the reduction of the scope of the lease and of the difficulty in accessing the leased hangar.
Cour de cassation, 3ème Chambre Civile, 10 juillet 2025 n° 23-20.491
This case-law is an opportunity to recall that, in the event of a breach by the landlord of his obligation of delivery and peaceful enjoyment, the limitation period for the tenant’s action for termination of the lease runs from the day of his knowledge.
However, when this breach persists, the tenant is entitled to invoke the said breach at any time, including beyond the five-year period.
Modification of the local factors of commerciality and favourable impact on the tenant’s activity:
Upon renewal of the lease, the modification of the local factors of commerciality may constitute grounds for uncapping the rent of the renewed lease.
Indeed, its assessment is independent of its actual and real impact on the business operated on the premises.
It is sufficient that this significant modification be of a nature to have a favourable impact on the commercial activity actually carried on by the tenant for it to justify the uncapping of the rent.
Thus, the tenant’s turnover constitutes solely a corroborating indicator to justify the uncapping of the rent.
Cour de cassation, 3ème Chambre Civile, 18 septembre 2025 n° 24-13.288
The significant modification of the local factors of commerciality constitutes grounds for uncapping if it is of a nature to have a favourable impact on the tenant’s commercial activity, independently of its actual and real impact on the business operated on the premises.
Defence of non-performance and premises unfit for their use:
The landlord is required to deliver the leased property and to maintain it in a condition fit for use during the term of the lease so that the lessee may enjoy it peacefully. For his part, the lessee is required to pay the lease price on the agreed terms.
However, recourse to the defence of non-performance remains strictly regulated and the lessee remains required to pay the rents if it is not shown that he was unable to operate his business.
Thus, the lessee may rely on a defence of non-performance to refuse to perform his obligation to pay the rents on account of the landlord’s breach of his obligations.
Since the law does not require a prior formal notice to the defaulting party, the lessee is not required to serve a prior formal notice.
In this case, the tenant could usefully rely on a defence of non-performance only from 28 December 2016, that is to say from the day on which the premises were unfit for their use owing to the landlord’s refusal to carry out the works requested in a formal notice of 1 November 2016 informing him of the condition of the premises and of the impossibility of operating it.
Cour de cassation, 3ème Chambre Civile, 18 septembre 2025 n° 23-24-005
The lessee may invoke the defence of non-performance to refuse to perform his obligation to pay the rents without prior formal notice, from the day on which the premises are unfit for the use for which they were intended - on account of the landlord’s breach of his obligations -.
Order for payment and absence of any required prior conciliation:
Pursuant to article 750-1 of the Code of Civil Procedure, in the case of a dispute of less than 5,000 euros, a conciliation must be attempted before bringing the matter before the courts.
Otherwise, the judge may declare the legal claim inadmissible of his own motion.
By an opinion of 25 September 2025, the Court of Cassation specified that this obligation did not apply to the application for an order for payment, a simplified procedure which, in the interest of speed, allows a judge to be seised on a non-adversarial basis in order to obtain the enforced payment of a sum of money.
Avis, Cour de cassation, 2ème Chambre Civile, 25 septembre 2025 n° 25-70.013