Commercial lease: damaged property is not destroyed property

In 2017, Hurricane Irma struck Guadeloupe, rendering a hotel under a commercial lease unusable.

The tenant stopped paying rent while awaiting repairs.

The landlord refused to carry out repairs, citing Article 1722 of the Civil Code: when the leased property is destroyed—partially or in its entirety—by a fortuitous event, the landlord is not required to undertake repair work. Consequently, the landlord terminated the lease without paying eviction compensation.

The Basse-Terre Court of Appeal ruled in the landlord's favor.

The Court of Cassation overturned this decision, citing Articles 1719, 1720, and 1722 of the Civil Code.

The reasoning is as follows:

Refusal to repair based on Article 1722 of the Civil Code is only permissible if the fortuitous event destroys the leased property, meaning the property cannot be preserved without excessive expense (Civ. 3, July 4, 1968, No. 66-13.329).

If the property is merely damaged, the lease continues, and the landlord remains bound by their obligations to provide and maintain the property (Articles 1719 and 1720).

However, the Court of Appeal itself had noted that the property only required repairs whose cost did not exceed its value. Therefore, the property was not destroyed.

The tenant was therefore entitled to invoke the defense of non-performance for the entire period during which the landlord failed to make repairs. Consequently, these arrears could not justify a refusal to renew the lease.