Lessee’s Right to Withhold Rent Payments Confirmed

In a ruling dated September 18, 2025[1], the Cour de cassation (French Supreme Court) confirmed a now well-established principle in commercial lease law: lessee may withhold rent payments immediately once the premises become unfit for their intended use due to lessor’s breach of its obligations, without the need for formal prior notice.

This decision is consistent with Article 1719 of the French Civil Code, which requires lessor to deliver premises compliant with the agreed use and to ensure the lessee’s peaceful enjoyment thereof. It reaffirms that the exception of non-performance may be raised immediately, provided that the unfitness is total and attributable to lessor.

 Factual and procedural background

 Lessee operated commercial premises under a 23-month lease agreement. Upon expiration of the lease, lessee remained in occupation without paying the stipulated occupancy compensation. Lessor initiated proceedings seeking termination of the lease, eviction, and payment of rent arrears.

 In defense, lessee invoked the exception of non-performance, arguing that the premises had become unfit for their intended use, and claimed damages for lessor’s failure to fulfil its duty to ensure that premises are delivered and maintained in compliance with the agreed use. The Court of Appeals rejected lessee’s claims, but the Cour de Cassation partially reversed the appellate judgment.

 Reasoning

 The Cour de Cassation recalled that under Article 1719 of the French Civil Code, the lessor is required to deliver premises compliant with the agreed use and to ensure the lessee’s peaceful enjoyment throughout the lease term.

 It held that when the premises become completely unfit for their intended use as a result of lessor’s breach of its obligation, lessee may raise the exception of non-performance to immediately withhold rent payments, without prior formal notice.

 "The resolutory condition is always implied in bilateral contracts. Lessee may rely on the exception of non-performance to refuse, from the day the premises become unfit for the use for which they were intended, to perform its obligation to pay rent without being required to issue a prior formal notice.”

 Conditions for Lessees

 To benefit from this protection, several conditions must be met:

• Total unfitness: the premises must be completely unusable for the intended business activity (partial inconvenience is insufficient).
•  Breach attributable to lessor.
•  Robust evidence: expert reports, official findings, or technical assessments establishing the date and severity of the unfitness.
• Proper documentation: correspondence with lessor, even though prior formal notice is not required.

Consequences for lessors

In the event of defects, lessor must act diligently by

•  undertaking the necessary works,
•  documenting the condition of the premises, and
•  considering temporary measures to avoid business interruption.

Practical implications

This decision of the Cour de Cassation:

•  strengthens legal certainty for lessees,
• confirms that prior formal notice is not required before withholding rent payments, and
• nonetheless reminds lessees that unjustified withholding of rent payments may expose them to litigation risks.