Tenant's three-yearly notice (3-6-9 lease): formalities and model letter

A trader who has been in premises let under a commercial lease for three years wishes to move, scale back or renegotiate elsewhere. The law opens an exit to the tenant at each three-year date, but this right is worth something only if the notice complies with precise formalities. An error as to the date, the form or the addressee, and the notice is deprived of effect: the tenant remains bound for three more years and liable for the rent. This guide sets out the formalities of the three-yearly notice (the six-month period, the choice between an act of a commissaire de justice (bailiff) and a registered letter), lists the errors that make it void and offers a model termination letter that can be used as it stands.

The right of three-yearly termination: what the law says

The so-called "3-6-9" commercial lease takes its nickname from its minimum statutory term of nine years, divided into three periods of three years. At the end of each of these periods, the tenant has a right of early exit: this is the tenant's three-yearly notice ("congé triennal").

This right is laid down by Article L. 145-4 of the French Commercial Code:

“The term of the contract may not be less than nine years. However, the tenant has the right to give notice at the end of a three-year period, at least six months in advance, by registered letter with acknowledgement of receipt or by extrajudicial act.”

Two lessons emerge from this text. First, the right is open to the tenant at each three-year date, that is at the end of the third, the sixth and the ninth year. Second, the law regulates both the time limit (six months minimum) and the form (registered letter or extrajudicial act, nowadays an act of a commissaire de justice).

This right is a matter of public policy for most standard commercial leases. A clause that would purely and simply prevent the tenant from terminating at the three-year date is deemed unwritten, except in the categories of lease for which the law allows derogation (long leases, single-purpose premises, offices, warehouses, discussed below).

A right belonging to the tenant alone, distinct from the landlord's notice

The tenant's three-yearly notice must be distinguished from the notice given by the landlord. The owner cannot end the lease at a three-year date at will: it can give notice only at the end of the nine-year lease (except in cases of recovery of possession to build, rebuild or add storeys provided for by Article L. 145-4). The tenant therefore enjoys a flexibility that the landlord does not have, which explains the common expression "3-6-9 lease on the tenant's side". The notice served by the owner, its time limits and its formalities are covered in our landlord's guide to notice to terminate a commercial lease (renon).

The notice period: six months before the three-year date

The six-month period is the first trap. It is not an indicative period but a mandatory minimum: the notice must reach the landlord at least six months before the expiry date of the current three-year period.

How to calculate the deadline

The starting point of the calculation is the date on which the lease takes effect, not the date of signature. Take a concrete example. A commercial lease takes effect on 1 January 2021. The first three-year period ends on 31 December 2023. To leave the premises at this first date, the tenant must serve its notice no later than 30 June 2023.

If it sends its letter on 15 July 2023, the six-month period is not complied with: the notice is ineffective for the 31 December 2023 date. The tenant then remains bound until the second three-year date, that is 31 December 2026, unless the landlord agrees to an early exit.

The question of the last day of the calendar quarter

A frequent source of confusion is the rule of the "last day of the calendar quarter" found in Article L. 145-9 of the French Commercial Code for end-of-lease notice. The case law holds that this rule does not apply to the tenant's three-yearly notice: three-yearly notice takes effect on the expiry date of the three-year period itself, calculated from the date on which the lease took effect, and not for the last day of a calendar quarter.

In other words, one must reason by reference to the anniversary date of the lease, not the calendar of quarters. A tenant who mechanically aligned its notice with the end of a calendar quarter, when its lease took effect part-way through a quarter, would risk missing the three-year date. Careful reading of the lease's term clause is therefore the starting point of any consideration.

The form of the notice: act of a commissaire de justice or registered letter

The formal requirements have changed considerably. Before the Pinel Law, three-yearly notice had to be given by extrajudicial act, that is an act of a huissier (bailiff). Law No. 2014-626 of 18 June 2014, known as the Pinel Law, opened the way to the registered letter, then Law No. 2015-990 of 6 August 2015, known as the Macron Law, clarified the wording of Article L. 145-4.

Today, the tenant has an option: it may serve its three-yearly notice either by registered letter with acknowledgement of receipt, or by act of a commissaire de justice (the extrajudicial act, since the merger of the professions of huissier and commissaire-priseur on 1 July 2022). A termination letter for a 3-6-9 commercial lease from the tenant is therefore perfectly valid provided that it goes by registered post with acknowledgement of receipt.

Why the act of a commissaire de justice often remains preferable

From a strictly legal standpoint, the two forms have the same value. From an evidential standpoint, they are not equivalent.

The registered letter raises a recurring difficulty: what happens if the landlord does not collect the item from the post office? The case law generally holds, in matters of three-yearly notice, that the date of first presentation of the letter is the date on which the notice was delivered. But the tenant is exposed to a dispute if the landlord disputes receipt, or if the notice of attempted delivery was incorrectly completed. In practice, the burden of proving the date and the content of the letter falls on the tenant.

The act of a commissaire de justice removes this uncertainty: the commissaire de justice draws up an authentic act stating the exact date of service, which fixes the starting point of the six months and the content of the notice. Where a significant financial amount is at stake, or where relations with the landlord are strained, service by a commissaire de justice provides a security that justifies its cost.

Drafting the letter

Whatever form is chosen, the notice must express unambiguously the tenant's intention to end the lease at the three-year date. The law imposes no sacramental wording, but the notice must enable the landlord to identify:

• the lease concerned (date, description of the premises)
• the right exercised (three-yearly termination under Article L. 145-4)
• the effective date of the notice (the precise three-year date)

A notice drafted in vague terms, or one that leaves doubt as to the exit date, opens the door to a challenge by the landlord.

The errors that make the notice void or ineffective

This is the heart of the matter. An irregular three-yearly notice produces no effect: the lease continues and the tenant remains liable for the rent until the following three-year date. These are the errors most frequently penalised.

Failure to observe the six-month period

This is error number one. A notice served five and a half months before the date is not valid for that date. The case law is strict: the six-month period is a minimum, not an approximation. A tenant who discovers late that it wishes to leave is better advised to target the following three-year date directly rather than serve an "out of time" notice that will have no effect.

The wrong effective date

A notice that sets an exit date not coinciding with a three-year date is a source of dispute. Imagine a tenant whose lease took effect on 1 March 2020, and who states in its notice that it wants to leave on 31 December 2023. As the first three-year date is 28 February 2023 and the second 28 February 2026, 31 December 2023 corresponds to no date. The landlord may challenge the effectiveness of the notice. The case law admits, however, that a notice served for an erroneous date may, depending on the circumstances, be interpreted as valid for the nearest regular three-year date, but it is better not to rely on this uncertainty.

The wrong addressee

The notice must be addressed to the landlord, that is the current owner of the premises, and not to the agency or the manager, unless there is an express mandate. Several situations call for particular vigilance:

• where the landlord is an SCI (French property holding company), the notice must be addressed to the company, represented by its manager, at its registered office
• in the case of joint ownership (indivision), the notice must in principle be notified to all the joint owners or to the joint agent
• where ownership is split (démembrement de propriété), the usufructuary is in principle the landlord, and the notice must be notified to it
• if the property was sold during the lease, it is the new owner who is the landlord

A notice addressed to the former owner, or to a single joint owner when there are several, may be held not to be enforceable. Checking the exact identity of the landlord, if need be by a search at the land registry (service de publicité foncière), is an indispensable preliminary.

Absence or irregularity of proof of delivery

A notice sent by ordinary post, by unsecured email or handed over by hand without a receipt does not meet the formal requirements. Only the registered letter with acknowledgement of receipt and the act of a commissaire de justice are admitted by Article L. 145-4. A tenant who keeps neither the acknowledgement of receipt nor the copy of the letter runs the risk of being unable to prove the date and the content of its notice.

Notice given despite a valid waiver clause

In the categories of lease where the law allows the parties to derogate from the three-yearly right (see below), a tenant that has validly waived this right cannot rely on it. A notice served in breach of such a waiver has no effect.

Leases that may exclude the three-yearly right

Article L. 145-4 of the French Commercial Code expressly allows the parties to agree, when the lease is entered into or later, to exclude the right of three-yearly termination for certain categories of lease:

• leases with a term of more than nine years
• leases of premises built for a single use, known as single-purpose premises (hotels, cinemas, clinics for example)
• leases of premises for the exclusive use of offices
• leases of storage premises referred to in 3° of III of Article 231 ter of the French General Tax Code (warehouses and logistics platforms)

For these leases, a clause depriving the tenant of the three-yearly right is lawful. A company director who signs an office lease with a waiver of the three-yearly right is therefore, in principle, committed for the whole term of the lease. Before serving a notice, it is essential to re-read the term clause to check that the three-yearly right has not been excluded, which requires the premises to be correctly classified (offices with a showroom open to the public are not necessarily for "exclusive use of offices"). The clauses of a 3-6-9 lease to be checked at signing, including the term clause, are listed in our article on the model 3-6-9 commercial lease.

Early exits outside the three-year dates

Outside the three-year dates, the tenant can leave the premises only in two situations. The first is agreement with the landlord, formalised by a termination protocol. The second is provided for by Article L. 145-4 itself: a tenant who is entitled to retirement rights or an invalidity pension may give notice at any time, in the forms and with the six-month period, without waiting for the three-year date. On the other ways out and their cost for the tenant, see our analysis of terminating a commercial lease outside the three-year period.

Model three-yearly notice letter

The model below covers a notice served by registered letter with acknowledgement of receipt. It must be adapted to the tenant's exact situation and checked against the clauses of the lease. For service by act of a commissaire de justice, the content is identical, but it is the court officer who draws up and serves the act.

[Name and address of the tenant] [SIREN number and legal form if a legal entity]

For the attention of [Name of the landlord / Name of the SCI, represented by its manager] [Landlord's address / registered office]

Registered letter with acknowledgement of receipt [Place], [date]

Subject: three-yearly notice of the commercial lease relating to the premises located at [full address of the premises]

Dear Sir or Madam,

Under a commercial lease entered into on [date of signature] and which took effect on [effective date], I am the tenant of the commercial premises located at [full address and description of the premises].

By this letter, and in accordance with Article L. 145-4 of the French Commercial Code, I inform you of my decision to exercise my right of termination at the end of the current three-year period.

Accordingly, I give you notice for [date of the three-year expiry], the date on which the lease will end. I undertake to return the premises free of any occupation on that date, after a joint exit inspection (état des lieux de sortie) has been carried out, the date of which I propose that we agree now.

Please send me your contact details so that this inspection can be arranged and the accounts between us settled (security deposit, service charges, taxes).

Yours faithfully,

[Signature] [Name, capacity of the signatory]

Two precautions accompany the sending. First, keep the original of the acknowledgement of receipt and a dated copy of the letter. Second, check that the signatory has the power to bind the tenant company (manager, chairman, or holder of a delegation of authority), since a notice signed by an unauthorised person may be challenged.

Conclusion

Three-yearly notice is a powerful right for the commercial tenant, but it is a right that does not forgive approximation. Between strict observance of the six-month period calculated from the date on which the lease took effect, the exact identification of the landlord and the choice of a robust form of proof, each link conditions the effectiveness of the notice. My position is clear: whenever the financial stake is significant or the relationship with the landlord is uncertain, service by act of a commissaire de justice is preferable to the registered letter, because it removes the main ground of dispute, that of proof of the date and of the content.

Before any sending, three checks are necessary: re-read the term clause of the lease to confirm that the three-yearly right has not been excluded, recalculate the six-month deadline from the real effective date, and identify with certainty the current owner of the premises. If in doubt on any of these three questions, have the notice reviewed by a lawyer before it is served: an irregular notice costs three years of rent, a review costs infinitely less.

Frequently asked questions

Is three-yearly notice by registered letter valid, or is an act of a huissier needed? The registered letter with acknowledgement of receipt is perfectly valid since the Pinel Law of 18 June 2014 and the Macron Law of 6 August 2015, which amended Article L. 145-4 of the French Commercial Code. The tenant may choose between the registered letter and the act of a commissaire de justice (formerly an act of a huissier). The act of a commissaire de justice remains advisable where the stakes are high, because it provides incontestable proof of the date and the content of the notice.

How long before the three-year date must notice be given? At least six months before the expiry date of the three-year period, under Article L. 145-4 of the French Commercial Code. This period is a mandatory minimum. The starting point of the calculation is the date on which the lease took effect, not its date of signature. A lease that took effect on 1 January 2021 has its first three-year date on 31 December 2023, which requires the notice to be served no later than 30 June 2023.

What happens if three-yearly notice is served out of time? The notice is ineffective for the date targeted. The lease continues and the tenant remains bound until the following three-year period, that is three more years, unless the landlord agrees to a termination. A tenant that is out of time is better advised to target the following three-year date directly rather than serve a notice without effect.

Can the landlord prevent me from terminating at the three-year date? For a standard commercial lease, no: the three-yearly right is a matter of public policy and any clause prohibiting it is deemed unwritten. The law does, however, allow the parties to derogate from it for certain categories: leases of more than nine years, single-purpose premises, premises for the exclusive use of offices and storage premises (warehouses). The term clause must therefore be re-read before any notice.

To whom should the termination letter for a 3-6-9 commercial lease be addressed when the landlord is an SCI? The notice must be addressed to the SCI itself, represented by its manager, at its registered office. In the case of joint ownership, all the joint owners or the joint agent must be notified. Where ownership is split, the usufructuary is in principle the landlord. An error as to the addressee may make the notice unenforceable, hence the importance of checking the exact identity of the current owner.

Can I leave the premises outside a three-year date? In principle no, unless the landlord agrees, formalised by a termination protocol. Article L. 145-4 of the French Commercial Code does, however, provide for one exception: a tenant who claims its retirement rights or who receives an invalidity pension may give notice at any time, subject to six months' notice.

Must three-yearly notice state reasons? No. The tenant does not have to justify its reasons for leaving in order to exercise its right of three-yearly termination. It is enough that the notice clearly expresses the intention to end the lease at the three-year date, refers to Article L. 145-4 and complies with the required time limit and form. Adding a reason is unnecessary and may create confusion.