An indexed French commercial lease (bail commercial) can carry the rent above the market. Once indexation has moved the rent by more than a quarter, the commercial lease statute opens a review to rental value (valeur locative), but some leases make the tenant waive in advance any court setting of the rent below the contractual rent. In a reported decision of 30 March 2017, the Third Civil Chamber of the Cour de cassation (the French supreme court for civil and commercial matters) held that such a clause defeats the readjustment of the rent to rental value, a waiver being valid only once the right has accrued. For the valuer, the rental value on review is measured without a floor.
The facts
A landlord company let commercial premises to a tenant company. The lease provided for annual indexation and contained a clause worded as follows: “it has been expressly agreed, as an essential and decisive condition of this lease, without which it would not have been granted, that the tenant waives, for the whole duration of this lease, having the rent set by the court at a sum lower than the contractual rent defined above, even where the rental value should prove lower than the contractual rent” (translated from the French).
The tenant applied for a downward review of the rent under article L. 145-39 of the French Commercial Code, and for the rent to be set at rental value. That article opens a review whenever, through the operation of the index clause (clause d’échelle mobile), the rent has risen or fallen by more than a quarter compared with the price previously fixed. The landlord opposed the application, relying on the clause.
In a judgment of 20 January 2016, the Paris Court of Appeal set the reviewed rent at the amount of the initial contractual rent. In its view, the clause did not defeat article L. 145-39, since it allowed the tenant, once the conditions for a review application were met, to obtain a reduction of the rent, but only down to the agreed “floor” rent. The tenant appealed to the Cour de cassation.
The decision
The Cour de cassation quashed and set aside the judgment in its entirety (Cass. 3e civ., 30 March 2017, appeal no. 16-13.914, reported in the Bulletin), under articles L. 145-15 and L. 145-39 of the Commercial Code. The Court of Appeal could not rule as it did, “whereas the clause had the effect of defeating the readjustment of the current rent to the rental value and the tenant’s waiver of its right to obtain the review could validly occur only once that right had accrued, that is, after an increase of the rent of more than a quarter through the operation of the index clause had been established” (translated from the French).
A floor set at the level of the contractual rent therefore deprives the review of effect as soon as rental value falls below it, and a waiver written into the lease at signature, for its whole duration, comes before the right has accrued.
The case was remitted to the Paris Court of Appeal, differently composed. The decision does not set the reviewed rent and does not rule on the statement that made the clause an essential and decisive condition of the lease.
Since then, on 3 September 2026 (appeal no. 25-14.904, reported in the Bulletin), in a case on a flat-rate rent increase clause, the Court inferred from the statutory provisions on review, including article L. 145-15, a general rule: any clause which defeats the operation of the statutory rent review must be deemed unwritten (réputée non écrite) (Commercial rent: an unlimited flat-rate rise is deemed unwritten). The 2017 decision did not name the sanction; a floor clause like the one in that case appears to fall within this general formula, although the Court has not ruled again on a clause of this type.
What this changes for valuation
Rental value on review is measured without a floor. Once the article L. 145-39 review is open, the judge adapts the operation of the index clause to the rental value at the date of the application (article R. 145-22 of the Commercial Code). The valuer determines that value according to the criteria of article L. 145-33: characteristics of the premises, permitted use, the parties’ respective obligations, local commercial factors, prices commonly charged in the neighbourhood (Charte de l’expertise en évaluation immobilière, the French property valuation charter, 6th edition, November 2025, Title III, § 1.4 and ch. 2). If that value is below the initial contractual rent, the report says so.
Value and the legal question stay separate. The validity of the clause is for the judge. If it is disputed, the report gives the rental value at the date of the application and, separately, the rent that would result from the floor: the judge has both figures.
The date of the quarter is reconstructed. A waiver made before an increase of more than a quarter has been established does not deprive the tenant of the review: the report therefore reconstructs the series of indexed rents since the price previously fixed and dates the crossing of the quarter, one element in establishing that increase. After a renewal, the reference price is the initial rent of the renewed lease, even if equal to the rent under the old lease (Cass. 3e civ., 15 December 2016, appeal no. 15-23.069, presented in French commercial rent review: the quarter counts from renewal).
Let premises and the leasehold right. For premises valued by income capitalisation, a rent kept above the market by a floor clause is not secured income: once the one-quarter variation is reached, it may be brought back to rental value. The valuer therefore isolates the over-rent and treats it as precarious; the reasoning applies, the other way round, to the tenant’s leasehold right (droit au bail). Where an indexation clause is deemed unwritten, the calculation of the rent to be refunded is set out in Indexation clause unwritten: the refund ignores the indexation.
Review and renewal are not the same. Rental value on review is assessed at the date of the application, during the lease; the renewal rent follows its own rules, for example for single-use premises: Single-use premises rent: no allowance for tenant improvements. The report states which one it establishes and at what date.
What the valuer takes from it
- A clause barring, for the whole lease, any court setting of the rent below the contractual rent defeats the review under article L. 145-39.
- The tenant’s waiver of review is valid only after an increase of more than a quarter through the index clause has been established.
- The valuer measures rental value at the date of the application without stopping at the floor, and may state separately the rent that would result from the clause.
- The report dates the crossing of the quarter from the reference rent, that of the renewed lease after a renewal.
- For let premises or a leasehold right, the over-rent protected by a floor clause is precarious once the one-quarter variation is or may be reached.
Further reading
The Commercial rent and leases page describes the assignment, how it runs and its fee. The guide Lease renewal in France: my landlord wants to uncap the rent and the glossary entries clause d’échelle mobile, valeur locative and indice des loyers commerciaux complement this article. The decision of 5 October 2017 on the rent of single-use premises is discussed in Single-use premises rent: no allowance for tenant improvements. On the same theme: French commercial lease: can rent rise automatically each year? and French commercial rent review: the quarter counts from renewal. The decision is available on Légifrance.
What next
An indexed rent now above rental value, and a clause blocking any reduction?
I establish the rental value at the date of the review application, with rent references close to that date, and I reconstruct the variation caused by indexation. The report gives the landlord, the tenant or the judge a demonstrated figure, without stopping at the floor written into the lease.
Free quote, by email or by phone. No commitment before the quote is accepted. Fees are never linked to the value of the property (Charte de l’expertise, Title I, §2.1).
