Article 606 of the French Civil Code and the Commercial Lease

Article 606 of the French Civil Code is a fundamental provision of property law that raises many questions when it applies to commercial leases. Between the landlord's obligations and the tenant's responsibilities, the boundary is not always clear, particularly when it comes to determining who must bear the cost of major repairs (grosses réparations) to commercial premises. This article examines in detail the application of this civil law rule to commercial lettings and its practical implications for owners and operators.

Understanding Article 606 of the French Civil Code: definition and scope

The general principle of major repairs

Article 606 of the French Civil Code provides that "major repairs are those of the main walls and vaults, the re-establishment of beams and of entire roofs". This provision establishes a fundamental distinction between major repairs, which normally fall to the owner, and tenant's repairs (réparations locatives), which are borne by the tenant.

This rule reflects an asset-based logic: the owner, who retains ownership of the property and derives its long-term benefits, must bear the heavy investments needed to preserve the structure of the building.

The extension of the notion by case law

Although Article 606 expressly mentions only certain elements (main walls, vaults, beams, roofs), the case law has gradually widened this list to cover all works affecting the solidity and stability of the building.

Concrete example: Suppose that Sophie has run a bakery in commercial premises for 8 years. Significant cracks appear in the load-bearing wall of the façade, threatening the stability of the building. Even if the lease provides that the tenant must maintain the walls, these strengthening works constitute major repairs within the meaning of Article 606, and therefore fall to the landlord, Pierre.

Specific application to commercial leases

The particular regime of the commercial lease

Commercial leases (baux commerciaux) are governed by specific provisions that partially depart from the general law of letting. The notion of major repairs in Article 606 of the French Civil Code serves there as the reference for allocating the burden of works. Since Law No. 2014-626 of 18 June 2014, this allocation is no longer entirely free: for leases entered into or renewed from the publication of Decree No. 2014-1317 of 3 November 2014, Article R. 145-35 of the French Commercial Code prohibits charging the tenant with expenditure relating to the major repairs referred to in Article 606 of the French Civil Code.

This application raises significant economic issues: in a long-term commercial lease (often 9 years, renewable), the allocation of the cost of major repairs may represent considerable sums. The breakdown of expenditure between landlord and tenant since the Pinel Law is set out in our article on the allocation of commercial lease charges.

The obligations of the commercial landlord

The commercial landlord remains subject to the general obligations arising from Article 606. In particular, the landlord must:

• Maintain the structural solidity of the building
• Ensure the stability of the load-bearing elements
• Bear the cost of replacing worn-out structural elements
• Guarantee the safety of the structure

Practical case: Marc lets a 500 m² warehouse to the company LogiPro for its distribution business. After 15 years of use, the steel frame shows signs of advanced corrosion requiring partial replacement. This work, estimated at €45,000, is a major repair that is Marc's responsibility as landlord, irrespective of the lease clauses on day-to-day maintenance.

Distinction between major repairs and tenant's repairs

The criteria for classification

The fundamental distinction rests on several cumulative criteria:

• The structural nature of the element concerned
• The scale of the works required
• The cost of the work
• The impact on the solidity of the building

Classification of the main repairs

Major repairs (borne by the landlord):

• Renewal of the entire roof
• Underpinning of the foundations
• Replacement of main beams
• Strengthening of load-bearing walls
• Façade renovation with structural repair

Tenant's repairs (borne by the tenant):

• Routine maintenance of the roof (isolated tiles)
• Maintenance of equipment
• Minor repairs to partitions
• Cleaning and minor upkeep

Detailed example: Julien runs a restaurant in a 19th-century building. Following an expert report, several interventions are needed:

• Replacement of the floor joists (cost: €25,000) → Major repair borne by the landlord
• Repair of a faulty sink (cost: €800) → Tenant's repair borne by Julien
• Replacement of 5 broken tiles (cost: €300) → Routine maintenance borne by the tenant

Contractual clauses and their limits

Validity of derogating clauses

The principle of freedom of contract allows the parties to arrange the allocation of charges by specific clauses, within the limit of the expenditure that Article R. 145-35 of the French Commercial Code prohibits charging to the tenant. These arrangements must in addition satisfy certain conditions of validity:

• Clarity and precision of drafting
• Reasonable contractual balance
• Absence of an unfair clause

Statutory and case law limits

Despite this freedom, certain limits apply:

For leases entered into or renewed from the publication of Decree No. 2014-1317 of 3 November 2014, Article R. 145-35 of the French Commercial Code excludes charging the tenant with expenditure relating to the major repairs referred to in Article 606 of the French Civil Code and the fees connected with carrying them out, as well as works intended to remedy obsolescence or to bring the property into compliance with regulations where they fall within those major repairs. Article L. 145-40-2 moreover requires the lease to contain a precise and exhaustive inventory of the categories of charges, and Article L. 145-15 deems unwritten clauses that defeat Articles L. 145-37 to L. 145-41. For leases entered into before that date, the allocation remains that stipulated in the contract.

Concrete case: The company TechInno signs a commercial lease with a clause stating that "all repairs, without exception, are to be borne by the tenant". Three years later, structural strengthening works costing €80,000 are needed. If the lease was entered into or renewed after the publication of the decree of 3 November 2014, the clause cannot place these works on the tenant: they fall within the major repairs of Article 606 and remain borne by the landlord.

Optimal drafting of clauses

For maximum legal certainty, clauses should:

• List precisely the works concerned
• Quantify the obligations where possible (caps, frequency)
• Provide fair counterparts (rent reduction, cost sharing)
• Distinguish clearly the different types of intervention

Practical consequences and litigation

Impact on asset management

The application of Article 606 to commercial leases directly influences:

• The landlord's investment strategy
• The calculation of rental yield
• The budgeting of future works
• The negotiations on renewal

Handling losses and expert appraisals

In the event of significant damage to the commercial premises, the legal classification of the works becomes crucial:

Practical example: Water damage affects the commercial premises of Amélie, a hairdresser for 12 years. The expert appraisal reveals:

• Replacement of the floor covering (€8,000) → Tenant's repair
• Repair of the slab waterproofing (€15,000) → Major repair
• Repainting (€2,000) → Routine maintenance

The correct classification determines what the insurer covers and how the uncovered costs are allocated.

Formal notice and summary proceedings

Where a disagreement arises over the classification of the works, several avenues of recourse exist:

• Prior formal notice (mise en demeure) setting out the legal basis
• Summary proceedings (référé) in cases of urgency (safety, health)
• Proceedings on the merits to settle the classification definitively

Developments in case law and current trends

Taking environmental issues into account

Recent regulatory developments gradually integrate energy issues into the assessment of major repairs. Works involving insulation or environmental compliance raise new questions of classification.

Topical case: François, owner of commercial premises let to a pharmacy, has to undertake thermal insulation works following the new obligations under the tertiary sector decree (décret tertiaire). These compliance works are excluded from recharging to the tenant, under point 2° of Article R. 145-35 of the French Commercial Code, only if they fall within the major repairs of Article 606 of the French Civil Code; the classification depends on their nature and scale. On the obligations arising from that text and the allocation of their cost between the parties, see our analysis of the energy performance certificate (DPE) and the tertiary sector decree in commercial leases.

The influence of digitalisation

The dematerialisation of exchanges and the use of digital tools facilitate the monitoring of the parties' respective obligations and the building of evidence in the event of a dispute.

Practical advice for landlords and tenants

For commercial landlords

Anticipation and budgeting:

• Set up an annual provision for major repairs
• Carry out a periodic technical audit of the property portfolio
• Negotiate balanced but protective clauses
• Document the condition of the property meticulously

For commercial tenants

Protection and vigilance:

• Analyse the lease clauses carefully before signing
• Carry out a detailed inventory of condition on entry
• Report any defects noticed promptly
• Keep all evidence of exchanges with the landlord

Concrete illustration: Thomas takes over a commercial lease for his catering business. Before signing, he calls in an expert who identifies signs of weakness in the roof frame. Thomas then negotiates a clause providing that the strengthening works identified in the expert report remain at the landlord's expense, even where there is a general clause transferring charges.

Optimising the letting relationship

Transparent communication between the parties often makes it possible to avoid litigation:

• Regular joint inspections
• Sharing of expert reports
• Amicable negotiation in the event of major works
• Prior mediation before applying to the court

Key points to remember

Article 606 of the French Civil Code applies fully to commercial leases and establishes clear obligations for the landlord as regards major repairs. This rule protects the contractual balance by preventing the tenant from bearing disproportionate charges linked to the structure of the building.

The essential points to remember are:

• Major repairs concern the solidity and stability of the building
• For leases entered into or renewed since the publication of the decree of 3 November 2014, major repairs cannot be charged to the tenant (Art. R. 145-35 of the French Commercial Code)
• The precise classification of the works determines who bears them
• Derogating clauses must be balanced and specific
• Anticipation and documentation prevent litigation

Given the significant economic issues these obligations represent, both landlords and commercial tenants have an interest in consulting a real estate law professional to secure their contractual relationships and optimise the management of their property or business.