With the advent of remote work, hybrid working is booming, and physical offices are emptying out. According to the Immostat barometer for the last quarter of 2023, vacant office space in the Paris region stood at 4,759,000 m² on December 31, 2023, up 10% on the previous year.
To avoid incurring unnecessary business expenses, many companies are turning to office subleasing and flex office. But subletting commercial leases in France is a complex subject. Deskare details the precise rules you need to follow to sublet a business office legally.
The legal framework for office subletting is defined in article L145-32 of the French Commercial Code. This article stipulates that subletting is prohibited by default, unless explicit authorization has been obtained from the lessor. In other words, even if your commercial lease does not expressly prohibit subletting, you cannot sublet your office space without your landlord's consent.
Good to know: If you wish to sublet your offices in order to set up new working methods (e.g. flex office), be careful to respect the legal framework for flex office and to calculate the right rate of expansion.
Authorization cannot take the form of a verbal or informal agreement. To guarantee the legality and validity of your sublease agreement, you must obtain written authorization. It is recommended that this be sent by registered letter with acknowledgement of receipt, or transmitted by a bailiff's deed (now called commissioner's deed). This provides you with tangible proof of the agreement, which will be useful in the event of future disputes.
As head tenant, you remain fully liable to the landlord for all obligations under the original lease, including payment of rent and maintenance of the premises.
This means that if your subtenant causes damage to the office or fails to meet his or her obligations (such as paying the rent), you will be held liable to the landlord (Colmar Court of Appeal, April 1, 2016, no. 14/00050).
In addition, you must ensure that the terms of the sublease comply with the terms of your main lease, particularly with regard to the use of the premises and authorized activities.
Non-regular subletting is risky for the main tenant. Here are the main risks involved, as set out in article L145-17 of the French Commercial Code:
First of all, you must ensure that you charge the subtenant a rent that does not exceed that of the main lease. This restriction is designed to avoid situations where the main tenant takes undue advantage of the sublease. In the event of non-compliance with this rule, the principal lessor has the right to request an increase in the principal rent.
Secondly, any increase in rent must comply with the applicable rules (e.g. rent control rules in tense areas). It's advisable to call on the services of an expert, such as a real estate lawyer, to make sure you don't forget anything.
The sublease agreement must be carefully drafted to avoid any misunderstandings or subsequent disagreements between companies. This agreement also ensures that all parties are on the same wavelength regarding the obligations and rights arising from the sublease.
You must include the following information in the sublease contract:
The contract must be signed by both tenants, i.e. the main tenant and the sub-tenant.
Space and services agreements are an alternative to subleasing. They are particularly well suited to specific projects such as coworking or event organization.
These agreements enable the main tenant to share their workspace. They involve the provision of a service in addition to the use of the premises (e.g. internet access, electricity, cleaning, etc.). These agreements must be drawn up in clear terms, defining the responsibilities and rights of each party. The principal lessee must obtain the lessor's agreement before modifying the destination clause of the commercial lease, and must ensure that the conditions of provision comply with the legal framework.
Warning: this agreement must not be used to conceal a genuine sublease prohibited by the lease. If you do, your lease could be terminated (Paris Court of Appeal, Pôle 5, Ch. 3, March 16, 2016, no. 14/02798). To avoid confusion, Maître Nejma Labidi, a lawyer at the Paris Bar, in an article for Village de La Justice, recommends :
"[...] carefully draft the contracts that will be concluded to avoid any risk of requalification as a sublease, put more emphasis on the servicesspecify that the premises are furnished and that beneficiaries are forbidden to install their own equipment, that the premises or space made available are interchangeable at the service provider's discretion, etc., and to indicate (exclusively) the service provider activity in the articles of association".
Today, the search for sub-tenants is facilitated by platforms such as Fiveoffices. Spaces are sublet via service contracts, offering greater flexibility than traditional sublease contracts. All transactions can be carried out directly on the platform, including contract and payment management.
Have you obtained permission to sublet your offices or have you just purchased your premises? Are you planning to implement hybrid and/or flex office working in your company? These new ways of working not only offer your employees a better work-life balance, but can also contribute to a significant reduction in real estate costs.
Deskare, our flex office management tool, is designed to simplify the organization of your teams' presence and the allocation of your spaces, for maximum efficiency in a hybrid work environment.
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