This article is provided for general information only and does not constitute legal, tax or investment advice. Rules change and individual situations differ. Always confirm the current position with a qualified professional before acting.
Two sisters owned a shop in Paris and decided to sell it. The law obliged them to offer it first to the tenant who ran the business inside, so they did, at €2,070,000. Buried in that figure was €78,660 of estate agent’s fees. The tenant accepted, paid the lot, signed the deed in January 2019, and then sued to get the €78,660 back. The Paris court of appeal said no: the tenant had paid with its eyes open, so it had agreed to bear the fees.
On 1 October 2026 the Cour de cassation said yes: the fees were never owed, and money paid when nothing is owed must come back, however knowingly it was paid. If you own a shop, a restaurant or a workshop in France and are thinking of selling it, this ruling decides who pays your agent.
This piece explains the tenant’s right of first refusal on commercial premises, which most owners abroad discover the week they instruct an agent, what the court decided and why, and what to do about the agent’s mandate before you send the first letter. It also covers a quiet change made on 28 May 2026 to the scope of the right, which takes offices and warehouses out of it.
The right you cannot sell around
Since a law of 18 June 2014, the owner of premises let under a commercial lease who wants to sell them must offer them to the tenant first. The rule is article L. 145-46-1 of the code de commerce, and it works like this. You notify the tenant by recorded delivery, or by hand against a signed receipt, of the price and the conditions of the sale you have in mind. That notification is an offer. The tenant has one month from receiving it to say yes or no. If it says yes, it has two months to complete, or four if its answer says it will be borrowing. If the deadline passes without a deed, the acceptance lapses and you are free to sell to someone else.
There is a second trap for the owner who thinks the first refusal was a formality. If you later agree to sell to a third party on terms more favourable to the buyer, a lower price or softer conditions, the tenant must be offered the property again on those terms, by you or by the notaire, on pain of the sale being void. The tenant then has another month. The French call the right a droit de préférence, a right of preference, rather than a pre-emption, because the tenant does not step into someone else’s contract. It receives an offer and either takes it or leaves it, which is the detail the whole of this ruling turns on.
The right does not apply everywhere. The article excludes the sale of several units in a shopping centre in one go, the sale of several separate commercial units together, the sale of a whole building that happens to contain shops, and a sale to your spouse or to an ascendant or descendant of yours or of your spouse.
Since 28 May 2026 the article also defines what a commercial or artisanal unit is for this purpose. A commercial unit is one used mainly for retail, wholesale or commercial services, including its store rooms and adjoining spaces, and premises used exclusively as offices are out, as are warehouses. The change, made by article 61 of the law of 26 May 2026 on simplifying economic life, applies to sales after that law was promulgated. If you let an office floor on a commercial lease, you do not have to offer it to the tenant. If you let a shop with a flat above it, which many owners abroad do, you are inside the rule for the shop.
What happened in the Paris shop
The owners instructed an agent, then sent the tenant the statutory offer at €2,070,000, which they described as including €78,660 of the agent’s negotiation fees. The tenant accepted at that price, fees included, signed a conditional contract in October 2018 and the deed in January 2019, and then claimed the fees back together with damages. The Paris court of appeal rejected the claim on 10 January 2025. Its reasoning had two legs. First, article L. 145-46-1 says nothing about agent’s fees, so that part of the deal is not a matter of public policy and the parties were free to agree that the tenant would carry them. Second, the tenant had accepted a price it knew included the fees, so it had agreed to pay them.
The Cour de cassation quashed the judgment on 1 October 2026 and sent the case back to a differently composed Paris court. It did so on two texts read together: article L. 145-46-1, and article 1302 of the code civil, which says that every payment presupposes a debt and that what has been received without being owed must be given back.
Why the tenant never owed the agent a centime
The first half of the reasoning is not new, and the court said so. In 2018 it held that the statutory offer cannot include an agent’s negotiation fee in the price, and in 2021 it gave the reason: no intermediary is necessary or useful to bring about a sale that happens by operation of law. The owner and the tenant already know each other. There is nothing to advertise and nobody to find. And the tenant cannot negotiate, it can only accept or refuse, so there is nothing for a negotiator to negotiate. The 2018 ruling also settled that the right of preference is a matter of public policy, even though it is missing from article L. 145-15, the list of commercial lease provisions that cannot be contracted out of. Any clause that cuts across it is deemed unwritten.
The court of appeal had tried to find a gap: the fees are not mentioned in the article, so the fees are not protected. The Cour de cassation closed it. The “price” the article requires you to notify is the price of the property, the sum that goes to the seller as the counterpart of the thing sold. The agent’s fee is the counterpart of a service, paid to the agent. They are different in law even when the agent’s advertisement rolls them into one figure marked FAI, frais d’agence inclus.
Since the price is a public policy matter and the fee cannot form part of the price, no agreement can shift the fee onto the tenant who exercises the right. A clause in the lease saying the tenant will bear the agent’s fees if it ever buys under the right is deemed unwritten.
One nuance matters for owners, and it is in the owner’s favour. Mentioning the agent’s fee in the notification does not make the offer void. The 2021 ruling allowed a notification that states the fee separately and creates no confusion in the tenant’s mind. The tenant may then accept the price and refuse the fee. What an owner cannot do is bundle the two and then keep the fee because the tenant paid it.
Paying knowingly does not mean paying validly
The second half of the ruling is the part with the wider reach, and it is the one the sisters’ lawyers will have found hardest. The tenant had paid the €78,660 voluntarily, knowing exactly what it was. In many legal systems that would end the matter. The Cour de cassation applied its own settled line, which goes back to a full-court ruling of 2 April 1993: whoever proves that no debt existed is entitled to restitution of what it paid, with no further proof required. Article 1302 says so in a sentence.
The only situation in which the payer must prove it paid by mistake or under pressure is article 1302-2, where someone has paid another person’s debt to the true creditor. That was not this case. The tenant had not paid someone else’s debt. It had paid a sum demanded of it, wrongly, for itself.
The owners had one argument left, and the court did not need to reach it. A tenant can waive a protection that exists for its benefit once the protection has arisen, and the court has said so in commercial lease cases for decades. Had the dispute been framed as a waiver, the owners might have argued that paying the fees was one. The court framed it instead as an undue payment, and an undue payment is not a waiver of anything. The tenant did not give up a right. It paid money it did not owe, and money paid when nothing is owed comes back.
What this means if you are the owner, and you are abroad
The practical question is not whether the tenant pays the agent. It does not. The question is who does, and the answer depends on the mandate you signed before you knew the tenant would buy. Under the rules on agents’ commission, an agent is paid only for a sale it actually brought about, and the Cour de cassation has now said twice that no intermediary is necessary or useful for a sale to the tenant under the statutory right.
An agent whose mandate charges the fee to the seller may still try to invoice you on the ground that the mandate covers any sale during its term. Whether that claim survives depends on the wording, and that is the conversation to have with the agent, in writing, before the mandate is signed rather than after the tenant has accepted. The cleanest version is a clause saying no commission is due if the tenant exercises its right under article L. 145-46-1. A reputable agent who knows the rule will accept it, because the alternative is a fee the courts will not let it collect from the buyer.
Then the letter itself. Send it by recorded delivery from wherever you are, or have the notaire send it, and reproduce the first four paragraphs of the article in the notification, because the article requires that on pain of nullity. State the price of the property as a clean figure. If an agent is involved and you want the tenant to know, state the fee separately and say it is not part of the price and not payable by the tenant if it accepts. Do not write FAI. Give the conditions of the sale, meaning what is included, any deferred completion, any condition you attach. Then wait a month. If the tenant refuses or stays silent, sell to whomever you like, but not on better terms than you offered the tenant without going back to it first.
Two things that are easy to get wrong from abroad. The one-month clock runs from the tenant’s receipt, not from your posting, so a letter sent from London on the Friday before a French bank holiday buys the tenant a few extra days. And if you own a whole mixed building, a shop with flats above, selling it entire to one buyer is the sale of a whole building, which is outside the right, while the sale of the shop on its own is inside it. If you are selling in lots, the shop lot carries the obligation and the flats do not, and the notaire will ask.
And if you are the buyer of a let shop
A foreign investor buying a let commercial unit, the classic murs de boutique, inherits the tenant and, as we explained for residential property under article 1743, the lease. Before you sign, ask the notaire for proof that the tenant received a valid notification and let the month pass, or for its written refusal. If your price or conditions end up more favourable than what the tenant was offered, the tenant must be offered the property again on your terms and can take it from under you. That is the second paragraph of the article, and it has undone more than one deal negotiated from abroad in good faith. If you are using an agent on the buy side, the ruling does not touch your fee: it concerns only the fee charged to a tenant buying under the statutory right.
The decision rule
Selling a let shop, restaurant or workshop in France: before signing an agent’s mandate, add a clause that no commission is due if the tenant buys under article L. 145-46-1. Notify the tenant a clean price with the four statutory paragraphs reproduced, never “FAI”, and state any agent’s fee separately as not payable by the tenant. Count one month from receipt, then two months to complete, four with a loan. Never sell to a third party on better terms without re-offering to the tenant. Offices and warehouses let on a commercial lease are outside the right since 28 May 2026; a whole building you own, shop with flats above, sold entire is outside it, the shop sold alone is inside.
Our view: the agent’s model, not the tenant’s wallet
We think the court got this exactly right, and that the appeal judges were led astray by the habit of the trade rather than by the law. French agents advertise one number, FAI, because it makes the fee invisible. The law has never treated the fee as part of the price, and the 2014 right of preference was written for the tenant who has run the shop for fifteen years and should not have to pay a middleman to buy the walls it already occupies. An owner who objects that the agent did real work, the valuation, the brochure, the viewings that never happened, has a point, and the point is addressed to the agent’s mandate, not to the tenant. That is where the money should be settled, and that is where this ruling pushes it.
The part we would underline for owners abroad is the restitution rule. In English or American practice, a buyer who pays a fee knowing what it is would struggle to recover it. French law asks a simpler question: was it owed? If not, it comes back, and it does not matter that you paid it with full knowledge. That cuts both ways. It protects you when a syndic or an agent collects something the law does not allow, and it means that a tenant’s apparent acceptance of a cost is worth nothing if the cost was never due. Draft on that assumption.
Readers, have you sold a let shop or restaurant in France, and did your tenant take up its right of first refusal or let the month pass? Did your agent’s mandate say anything about what happens if the tenant buys, and who ended up paying the fee? If you bought murs de boutique from abroad, did the notaire show you the tenant’s notification before you signed?
FAQ: selling French commercial premises to the tenant
Do I have to offer my French shop to the tenant before selling it?
Yes, if it is let on a commercial lease and used mainly for retail, wholesale, commercial services or a listed artisanal activity. Article L. 145-46-1 of the code de commerce requires a notification of the price and conditions, which is an offer the tenant has one month to accept. Sales of a whole building, of several units together, to a spouse or to ascendants or descendants, or of premises used only as offices or warehouses are outside the rule.
Can I include the estate agent’s fee in the price I offer the tenant?
No. The Cour de cassation has held since 2018 that the statutory offer cannot include negotiation fees in the price, and on 1 October 2026 it confirmed that the tenant who buys under the right owes no agent’s fee at all, whatever the lease or the offer says. You may mention the fee separately in the notification without voiding the offer, but the tenant can accept the price and refuse the fee.
The tenant paid the agent’s fee anyway. Can it claim it back?
Yes. Under article 1302 of the code civil, what is received without being owed must be returned, and the court held that the tenant’s knowledge that the payment was not due makes no difference. The only case where the payer must prove a mistake is when it paid someone else’s debt, which this is not.
Who pays the agent if the tenant buys?
Not the tenant. Whether the seller owes anything depends on the mandate signed with the agent and on the rule that an agent is paid only for a sale it actually brought about. The court has said no intermediary is necessary or useful for a sale to the tenant under the statutory right. Settle the point in the mandate before signing it, with a clause that no commission is due if the tenant exercises its right.
What changed on 28 May 2026?
Article 61 of the law of 26 May 2026 on simplifying economic life added definitions to article L. 145-46-1. A commercial unit is one used mainly for retail, wholesale or commercial services, including store rooms and adjoining spaces, and premises used exclusively as offices and warehouses are excluded. The new wording applies to sales after the law was promulgated.
