Source date: 2026-06-04
Is the tenant's right of first refusal waived in the event of a sale to the owner's children? Published on June 5, 2026 - Entreprendre Service Public / Directorate for Legal and Administrative Information (Prime Minister's Office)
In a ruling delivered on March 5, 2026, the Cour de cassation clarified the conditions for exercising the right of first refusal in the context of selling premises used for commercial or artisanal purposes.
The commercial right of first refusal is set out in Article L. 145-46-1, paragraph 7 of the Commercial Code (paragraph 6 at the time of the events). This right is granted to tenants of commercial or artisanal premises, allowing them priority in purchasing the property if the landlord decides to sell it.
In this case, the owner of premises subject to a commercial lease intended to sell his properties. He accepted a preliminary sales agreement in favor of a company owned by his children. In accordance with the commercial tenant's right of first refusal, the notary informed the tenant of this sales offer. The tenant did not initially express an intention to purchase. The notary then notified her of a new offer with modified terms. She ultimately decided to buy the premises, but the landlord refused to accept her purchase offer. The tenant subsequently sued the landlord to enforce the sale, arguing that the commercial right of first refusal had been violated.
The Court of Appeal ruled in favor of the tenant. The judge ordered the landlord to validate the sale to the tenant, who had expressed interest in buying back the commercial premises. The judge noted that the sale had been concluded with a real estate civil company (SCI) owned by the landlord's children, which does not fall under the exceptions to the right of first refusal.
The landlord appealed to the Cour de cassation. He argued that Article L.145-46-1, paragraph 6 of the Commercial Code was not applicable. In his view, his situation fell within the exceptions to the commercial right of first refusal, as he intended to conclude the sale with the real estate civil company owned by his children.
The Cour de cassation stated that when the owner of commercial premises decides to sell, they must inform the tenant by registered letter. If they fail to do so, it is the notary's responsibility to inform the tenant of the sale. This notification is considered a formal sales offer.
The court recalled that a real estate civil company (SCI) has its own legal personality. Thus, even if the company is composed of members of the same family, the sale remains made in favor of a corporate entity rather than natural persons.
Therefore, the sale in question does not fall within the exceptions provided for in Article L.145-46-1 of the Commercial Code, since the exception to the commercial tenant's right of first refusal applies only to natural persons who are descendants of the landlord, not to a family-owned real estate civil company.
Consequently, the tenant benefits from the right of first refusal.
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Source: Service-Public professionals