{"id":2104458,"date":"2026-08-22T10:01:41","date_gmt":"2026-08-22T08:01:41","guid":{"rendered":"https:\/\/kohenavocats.fr\/2026\/08\/22\/french-company-commercial-lease-shareholders-legal-form-change-foreign-founder\/"},"modified":"2026-08-22T10:01:41","modified_gmt":"2026-08-22T08:01:41","slug":"french-company-commercial-lease-shareholders-legal-form-change-foreign-founder","status":"publish","type":"post","link":"https:\/\/kohenavocats.fr\/en\/2026\/08\/22\/french-company-commercial-lease-shareholders-legal-form-change-foreign-founder\/","title":{"rendered":"French Company Formation: Can the New Company Take Over a Commercial Lease After the Founders or Legal Form Change?"},"content":{"rendered":"

Foreign founders often sign a French commercial lease before the company has received its registration extract. The practical difficulty does not end when the application is filed. The proposed shareholders may change, the business may move from a soci\u00e9t\u00e9 par actions simplifi\u00e9e (SAS, a simplified joint-stock company) to a soci\u00e9t\u00e9 \u00e0 responsabilit\u00e9 limit\u00e9e (SARL, a limited liability company), or the person who negotiated the premises may not be a shareholder of the company finally registered. The landlord may then ask whether the lease can still be transferred to the new company, or whether the original signatories remain exposed.<\/p>\n

The answer is not a simple yes or no. A French company has no legal personality before registration, but French law provides mechanisms for taking over commitments made for a company in formation. The Court of Cassation changed the practical analysis on 29 November 2023: a change in shareholders or legal form is not, by itself, fatal to the takeover. The court must examine the lease, the surrounding correspondence and the parties\u2019 common intention, subject to fraud and the other ordinary rules of contract law.<\/p>\n

For the wider formation sequence, the firm\u2019s French company formation service<\/a> is the relevant pillar page; this article deals with the narrower lease-takeover problem.<\/p>\n

This article addresses the specific post-signature problem. It does not repeat the general question of whether a foreign founder may sign before registration; that broader question is covered in the earlier article on signing a French commercial lease before company registration<\/a>. The focus here is what happens when the company that is ultimately registered is not exactly the company described in the first draft, and what evidence should be prepared before rent, a deposit or a personal guarantee becomes difficult to unwind.<\/p>\n

I. Can a French company take over a commercial lease after its shareholders or legal form change?<\/h2>\n

A. What happens when the lease was signed before registration?<\/h3>\n

The first point is temporal. Article 1842 of the French Civil Code states that companies acquire legal personality on registration. The official text provides that companies \u201cjouissent de la personnalit\u00e9 morale \u00e0 compter de leur immatriculation.\u201d The relevant registration is ordinarily the registration in the Registre du commerce et des soci\u00e9t\u00e9s (RCS, the Trade and Companies Register) for a commercial company. Today, the filing route is generally the Guichet unique operated through the Institut national de la propri\u00e9t\u00e9 industrielle (INPI, the French Intellectual Property Institute), with information also appearing in the Registre national des entreprises (RNE, the National Register of Businesses). The official version of Article 1842 of the Civil Code<\/a> should be read before the lease is signed.<\/p>\n

That rule explains why the draft must not treat a future company as if it already existed. A signature block that simply says \u201cFrench NewCo SAS\u201d when no SAS has yet been registered creates a serious identification problem. The safer structure identifies the individual or individuals who sign, states that they act for the company in formation, describes the intended company and its proposed activity, and records the mechanism by which the company will take over the lease after registration. The words \u201ccompany in formation\u201d are not decorative. They tell the landlord that the legal person does not yet exist and that the signatories accept a transitional risk.<\/p>\n

Article 1843 of the Civil Code allocates that transitional risk. It provides that persons who act in the name of a company in formation before registration remain bound by the obligations created by those acts. Its official wording begins: \u201cLes personnes qui ont agi au nom d’une soci\u00e9t\u00e9 en formation avant l’immatriculation sont tenues des obligations n\u00e9es des actes ainsi accomplis.\u201d The complete official text of Article 1843<\/a> then explains that a regularly registered company may take over those commitments, with the commitments treated as having been made by the company from the beginning.<\/p>\n

For a commercial company, Article L. 210-6 of the French Commercial Code expresses the same principle in stronger terms. The provision says that commercial companies acquire legal personality on registration in the RCS, and that the persons who acted for the company in formation are jointly and indefinitely liable unless the registered company takes over the commitments. The opening sentence is exact: \u201cLes soci\u00e9t\u00e9s commerciales jouissent de la personnalit\u00e9 morale \u00e0 dater de leur immatriculation au registre du commerce et des soci\u00e9t\u00e9s.\u201d The official Article L. 210-6 of the Commercial Code<\/a> is therefore central to any lease signed before the Kbis is available.<\/p>\n

Kbis means the official registration extract traditionally issued for a company registered in the RCS. It is evidence that the company has been registered; it is not what creates the company retroactively on the date of the lease. The greffe is the registry clerk\u2019s office attached to the competent commercial court. A foreign founder should therefore distinguish three dates: the date the lease is signed, the date the formation documents are accepted by the filing system, and the date the company is actually registered. A filing acknowledgement or an INPI submission receipt is not the same thing as a Kbis.<\/p>\n

The same distinction applies to other French administrative acronyms. URSSAF is the network that collects and administers social-security contributions. Signing a lease does not register the company with URSSAF and does not, by itself, create an employee or payroll obligation. BODACC means Bulletin officiel des annonces civiles et commerciales, the official bulletin for specified civil and commercial notices. A BODACC notice is not a substitute for the company\u2019s registration extract, the executed lease or a formal takeover decision. These documents should be kept in one formation file rather than treated as interchangeable proof.<\/p>\n

The key risk is what happens if registration fails, is abandoned or produces a different legal entity. If the company never becomes a legal person, there is no company capable of taking over the lease. The individuals who signed for the commercial company can remain exposed to rent, service charges, restoration obligations, taxes contractually allocated to the tenant, indemnities and the cost of leaving the premises. If registration occurs but the company does not validly take over the lease, the same transitional liability can remain. A foreign founder who is outside France may still be pursued under the lease, and a foreign address does not turn a personal guarantee into a corporate obligation.<\/p>\n

This is why the initial lease should state the intended tenant with precision but should not conceal the formation stage. It should identify the signatories, the planned legal form, the proposed name, the registered office that will be used for filing, the business activity, and the exact premises. It should also state whether the lease is one of the acts to be included in a schedule attached to the articles of association, whether a specific mandate will be issued, or whether the company will adopt an express decision after registration. A vague promise that \u201cthe company will replace the founders later\u201d is weaker than a defined takeover route.<\/p>\n

The distinction between a change and a substitution matters. A change in the spelling of the proposed name may be minor if the parties\u2019 intention is clear. A change from one company to another, or the use of a foreign parent as the tenant while intending a French subsidiary to pay the rent, creates a different question. The file must show whether the original act was made for the future French company, for the foreign parent, or for the founders personally. The lease should not be used to hide a permanent establishment, a branch activity or a personal occupation of the premises under a corporate label.<\/p>\n

B. What did the Court of Cassation decide on 29 November 2023?<\/h3>\n

The practical approach changed through three decisions delivered by the commercial chamber of the Court of Cassation on 29 November 2023. They are especially useful for a foreign founder because they address the problem that occurs after the signature: the final company may not have exactly the same shareholders, form or wording as the draft described before registration.<\/p>\n

In Commercial Chamber, 29 November 2023, appeal no. 22-12.865<\/a>, the case involved a commercial lease signed for a company in formation. The company was ultimately registered with different shareholders and a different legal form from those mentioned in the original act. The Court verified the following legal proposition in its reasons: \u201cla validit\u00e9 de l’acte pass\u00e9 pour le compte d’une soci\u00e9t\u00e9 en formation n’implique pas\u201d. The Court\u2019s reasoning continues by excluding, subject to dol or fraud, the idea that the company must necessarily retain the form and shareholders named in the original act. In practical terms, a change from the founders initially named in a lease to the shareholders finally recorded in the RCS does not automatically defeat the takeover.<\/p>\n

That result does not mean that a founder can sign anything and repair it later. The Court still requires the act to have been made for the company in formation, and it leaves room for fraud or an abusive arrangement. The evidence must connect the original lease to the company that was actually registered. Useful evidence includes the draft articles, the formation timeline, the proposed business activity, the landlord\u2019s knowledge, emails exchanged before signature, the payment of the deposit, the identity of the person who negotiated the premises and the reasons for changing the shareholders or legal form.<\/p>\n

In Commercial Chamber, 29 November 2023, appeal no. 22-18.295<\/a>, the lease contained defective wording. The issue was whether the court could stop at the imperfect wording or examine all the circumstances. The Court stated that \u201cil appara\u00eet possible et souhaitable de reconna\u00eetre d\u00e9sormais au juge le pouvoir d’appr\u00e9cier souverainement\u201d. It required the lower court to determine whether, despite the drafting defect, the common intention was that the lease be concluded for the company in formation and later taken over by that company. The decision is a warning against both extremes: a missing formula is not always the end of the analysis, but a foreign founder should never rely on a judicial rescue as a drafting strategy.<\/p>\n

The third decision, Commercial Chamber, 29 November 2023, appeal no. 22-21.623<\/a>, concerned a transaction concluded for a company in formation where the wording did not perfectly identify the company. The Court accepted an assessment of the evidence because \u201cla commune intention des parties \u00e9tait que l’acte soit conclu au nom ou pour le compte\u201d. The facts included correspondence showing that the other contracting party knew the signatory was acting for a company in formation. This makes the landlord\u2019s knowledge and the pre-contractual record important, especially where the founder is signing from another country through a power of attorney.<\/p>\n

These decisions concern the legal treatment of acts made during the formation period; they do not remove the ordinary requirements of contract formation. Article 1128 of the Civil Code states: \u201cSont n\u00e9cessaires \u00e0 la validit\u00e9 d’un contrat : 1\u00b0 Le consentement des parties ; 2\u00b0 Leur capacit\u00e9 de contracter ; 3\u00b0 Un contenu licite et certain.\u201d The official Article 1128<\/a> remains relevant to the identity and capacity of the person signing, the premises, the permitted use and the rent. A change in shareholders cannot cure the absence of consent, authority, a lawful purpose or a sufficiently determined lease.<\/p>\n

The decisions also do not make a post-registration email equivalent to every statutory takeover procedure. The company should still use the route that corresponds to the time at which the lease was signed. If the lease was listed in the acts schedule attached to the articles, the file should preserve the signed schedule and the signed articles. If a mandate was used after the articles were signed, the mandate should identify the lease and its material terms. If neither route was completed, the company\u2019s competent body should adopt a clear post-registration decision and notify the landlord. The 2023 cases make the factual inquiry more realistic; they do not make corporate records optional.<\/p>\n

The practical answer to the headline question is therefore conditional. A French company can generally take over a commercial lease after a change in the founders, shareholders or legal form when the evidence shows that the lease was made for the company in formation and the statutory or corporate takeover route has been completed. The founder should treat the change as a documentation and authority problem, not as a reason to rewrite the history of the transaction.<\/p>\n

II. How should a foreign founder secure the lease, the takeover and the evidence?<\/h2>\n

A. Which documents and mandates protect a SAS or a SARL?<\/h3>\n

The safest process begins by choosing one takeover route before the lease is signed. The route depends on when the act occurs and on the proposed legal form. The foreign founder should not copy a form designed for a French resident individual without checking who is actually authorised to sign, what identification documents the landlord requires and whether the company will be a SAS, a SARL, a branch or a subsidiary.<\/p>\n

For a SARL, Article R. 210-5 of the Commercial Code deals with acts made for a company in formation. It requires a statement of the acts and the commitment that each act would create for the company, and it provides for that statement to be attached to the articles. The official provision says that the articles\u2019 signature can carry takeover after registration when the statement has been properly prepared. Its mandate mechanism is also specific: the partners may authorise one or more partners or the appointed non-partner manager to enter into commitments for the company in formation, provided the commitments and the mandate\u2019s terms are determined. The official Article R. 210-5 of the Commercial Code<\/a> should be used for a SARL file.<\/p>\n

For a SAS, Article R. 210-6 is the corresponding provision for a company by shares without a public offering. It states that the statement of acts is made available to the shareholders and annexed to the articles, and that the articles\u2019 signature can carry takeover after registration. It also states: \u201cl’immatriculation de la soci\u00e9t\u00e9 au registre du commerce et des soci\u00e9t\u00e9s emporte reprise de ces engagements par la soci\u00e9t\u00e9.\u201d The official Article R. 210-6 of the Commercial Code<\/a> is particularly important where an overseas parent is subscribing for the shares of a new French SAS.<\/p>\n

The first route is therefore the schedule attached to the articles. Before the articles are signed, prepare a schedule that identifies the landlord, the premises, the date of the lease, the intended activity, the rent, the indexation mechanism, the deposit, the guarantee, the term, the permitted use and every commitment that the company will inherit. The schedule should identify the lease even if the final company name or shareholders later change. It should be signed together with the articles and retained with the registration file. The schedule is not a vague list of \u201cformation expenses\u201d; the lease must be identifiable without reconstructing it months later.<\/p>\n

The second route is a specific mandate. Article 1984 of the Civil Code defines a mandate or power of attorney as an act through which one person gives another the power to do something for the principal and in the principal\u2019s name. The exact official wording begins: \u201cLe mandat ou procuration est un acte par lequel une personne donne \u00e0 une autre le pouvoir de faire quelque chose pour le mandant et en son nom.\u201d The official Article 1984<\/a> matters when the foreign shareholder, director or corporate parent cannot attend in France.<\/p>\n

The mandate should name the person authorised to sign and define the transaction. It should cover the exact premises, the maximum rent, the lease duration, any rent-free period, the deposit, any guarantee, the permitted business and the authority to sign an amendment needed after registration. A mandate that simply authorises the representative to \u201cdo everything necessary to create the company\u201d may be challenged as too general for a long-term commercial lease. A foreign power of attorney may need a certified signature, an apostille or legalisation, and a certified French translation depending on the country and the filing or landlord requirements. Those formalities should be checked before the signature appointment, not after the greffe requests a correction.<\/p>\n

The third route is a post-registration decision. If the lease was not correctly scheduled or covered by a sufficiently precise mandate, the newly registered company should convene the body that has authority under its articles and adopt a decision identifying the lease and taking over its commitments. The decision should state the registration number, the date of registration, the lease date, the landlord, the premises, the rent, the deposit, the guarantees and the effective date. It should be sent to the landlord with the Kbis and, where appropriate, an amendment confirming the company\u2019s substitution as tenant. The amendment is useful evidence even where the statutory takeover operates retroactively; it should not silently alter the rent, term or permitted use.<\/p>\n

The founders should also prepare a change memorandum when the shareholders or form changes. It should record why the change occurred, who approved it, how the new company is connected to the original project and why the landlord is not being misled. If the original draft referred to a SAS but the company is registered as a SARL, the file should contain the final articles, the decision approving the form and the evidence that the landlord understood the transition. If a foreign corporate shareholder replaces an individual founder, identify the ultimate beneficial owner and retain the foreign company\u2019s registry extract, constitutional documents, board resolution and authority of the signatory.<\/p>\n

The French Guichet unique is the filing channel, not a substitute for the legal analysis. The founder should use the official French business formalities portal<\/a> and the INPI information site<\/a> for the current filing route, but the portal\u2019s acknowledgement does not prove that the lease has been taken over. For the general corporate formation sequence, the government\u2019s service-public.fr company-formation guidance<\/a> should be checked alongside the articles and the lease. The evidence of corporate authority remains in the signed documents and the company resolutions.<\/p>\n

The following sequence is practical for an overseas founder:<\/p>\n\n\n\n\n\n\n\n\n
Stage<\/th>\nDocument to prepare<\/th>\nLegal result to verify<\/th>\nResidual risk<\/th>\n<\/tr>\n<\/thead>\n
Before the articles are signed<\/td>\nLease for the company in formation and a detailed acts schedule<\/td>\nArticles signed with the schedule and company later registered<\/td>\nFounders remain exposed if registration or takeover fails<\/td>\n<\/tr>\n
After the articles but before registration<\/td>\nSpecific mandate naming the lease and its limits<\/td>\nRegistration triggers takeover where the mandate is sufficiently precise<\/td>\nOverbroad mandates, altered terms or an unidentified lease<\/td>\n<\/tr>\n
After registration<\/td>\nCorporate takeover decision, notice and landlord amendment<\/td>\nCorporate records identify the company as the tenant<\/td>\nEarlier personal guarantees and unpaid rent may survive<\/td>\n<\/tr>\n
After a change of form or shareholders<\/td>\nChange memorandum, final articles, approvals and updated Kbis<\/td>\nEvidence connects the registered entity to the original act<\/td>\nFraud, a different business or a different tenant may defeat the argument<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

B. Who bears the rent, guarantee and lease risk during the transition?<\/h3>\n

A foreign founder should review the economic consequences separately from the company-law takeover. A commercial lease is usually a substantial commitment. The rent may become payable before registration, and the landlord may ask for a security deposit, a bank guarantee or a personal guarantee. A takeover by the company does not automatically mean that every separate personal guarantee disappears. The guarantee document must be read on its own terms, and the landlord should be asked to release or replace it expressly if that is part of the commercial agreement.<\/p>\n

The parties must also decide whether the document is a standard commercial lease or a different type of occupation agreement. Article L. 145-1 of the Commercial Code defines the field of the commercial-lease regime by referring to premises in which a business is operated. The official text begins: \u201cLes dispositions du pr\u00e9sent chapitre s’appliquent aux baux des immeubles ou locaux dans lesquels un fonds est exploit\u00e9.\u201d The official Article L. 145-1<\/a> should be checked against the actual activity, the premises and the intended operation. A foreign founder should not assume that calling a document a \u201ccommercial lease\u201d automatically gives the tenant every protection associated with an operating business.<\/p>\n

The ordinary commercial lease is long. Article L. 145-4 states: \u201cLa dur\u00e9e du contrat de location ne peut \u00eatre inf\u00e9rieure \u00e0 neuf ans.\u201d The same provision gives the tenant a right to give notice at a three-year interval, subject to the statutory notice period and formalities. The official Article L. 145-4<\/a> makes the financial exposure clear. A founder who signs personally for a nine-year lease before the French entity is registered should model the rent and exit cost if the filing is delayed or refused.<\/p>\n

The parties may instead consider a short-term derogatory lease, but that is not a casual \u201ctrial period.\u201d Article L. 145-5 allows the parties, when the tenant enters the premises, to depart from the commercial-lease chapter if the total duration of the successive leases does not exceed three years. The official wording is: \u201cLes parties peuvent, lors de l’entr\u00e9e dans les lieux du preneur, d\u00e9roger aux dispositions du pr\u00e9sent chapitre \u00e0 la condition que la dur\u00e9e totale du bail ou des baux successifs ne soit pas sup\u00e9rieure \u00e0 trois ans.\u201d The official Article L. 145-5<\/a> should be read before selecting a short-term format. The lease must still address the company-in-formation issue, the signatory\u2019s authority, the rent and the takeover.<\/p>\n

The company\u2019s later substitution also does not erase the original contract\u2019s ordinary rules. Article 1103 of the Civil Code states: \u201cLes contrats l\u00e9galement form\u00e9s tiennent lieu de loi \u00e0 ceux qui les ont faits.\u201d The official Article 1103<\/a> supports careful drafting of the rent, indexation, repairs, insurance, permitted activity, assignment, subletting, renewal and termination provisions. A founder should not assume that the new company can renegotiate every clause merely because its legal form or shareholders changed.<\/p>\n

The landlord\u2019s information is equally important. Article 1112-1 of the Civil Code provides that a party who knows information that is decisive for the other party\u2019s consent must disclose it when the other party legitimately does not know it or trusts the counterparty. The official text begins: \u201cCelle des parties qui conna\u00eet une information dont l’importance est d\u00e9terminante pour le consentement de l’autre doit l’en informer.\u201d The official Article 1112-1<\/a> should be considered where the landlord is told that the tenant is a French company but is not told that the company is not yet registered, that the proposed shareholders may change or that a foreign parent may ultimately control the business.<\/p>\n

The information pack should be proportionate but complete. For an individual foreign founder, it will usually include a passport, proof of address, details of the proposed business, a financial plan, evidence of funds and the signed power of attorney if someone else acts in France. For a foreign corporate shareholder, it may include a recent registry extract, articles, director information, a board resolution approving the French investment and a beneficial-owner statement. Documents should be supplied in the format requested by the landlord and by the filing authority, with apostille or legalisation and a certified French translation where required. The translation question is separate from the commercial lease\u2019s validity, but a refusal at the formation stage can leave the signatories paying rent without a company to take over.<\/p>\n

The registered office needs separate planning. A commercial operating site can be the company\u2019s registered office if the legal and contractual conditions allow it, but a registered office may also be established through a domiciliation arrangement. The address printed on the Kbis, the premises actually occupied by the business and the address used for tax correspondence should not be confused. The lease should state whether the tenant may use the premises as its registered office, receive mail there, host customers, store goods or employ staff. If the landlord permits only a virtual address or prohibits customer access, the company\u2019s articles and filing should not describe a broader activity without checking the contradiction.<\/p>\n

Tax and administrative follow-up should be scheduled after registration. The French tax administration\u2019s official professional portal<\/a> is the appropriate starting point for corporate tax, business premises and value-added tax (VAT) questions. A lease may contain VAT language, recoverable charges or tax allocations, but the lease alone does not create a French VAT number or determine the company\u2019s corporate-tax treatment. If the company has no turnover during the first months, the founder should still ask the accountant or tax adviser which declarations, elections and local-premises forms are required. The rent should be recorded under the entity that is legally responsible at each stage, with intercompany funding documented if the foreign parent pays before the French company takes over.<\/p>\n

Payment records are important evidence. If the founder or foreign parent pays the deposit, rent or legal fees, the bank transfer should identify the intended company in formation and the underlying lease. The accounting file should record whether the payment is an advance, a shareholder loan, a reimbursement or a personal payment to be repaid. The bank reference should not simply say \u201crent France\u201d when the transfer is meant to demonstrate that a specified commitment was made for a specified company. Once the French entity is registered, the company should reimburse or assume the payment through a documented entry and retain the original transfer proof.<\/p>\n

Before signing, the founder should ask the landlord to confirm in writing four practical points: first, that the landlord knows the company is not yet registered; second, that the named signatory acts for the company in formation and accepts transitional responsibility; third, that the landlord will accept the company\u2019s takeover after registration if the company\u2019s shareholders or form change in the disclosed project; and fourth, what happens if the registration is refused or delayed. The fourth point can be addressed through a condition, a long-stop date, a short-term occupation arrangement or a negotiated cancellation mechanism. It should not be left to an informal promise that the landlord will \u201csee later.\u201d<\/p>\n

If registration is refused, the founder should immediately preserve the refusal notice, the correction request, the filing receipt, the lease, the acts schedule, the mandate, the landlord\u2019s correspondence and every payment record. The INPI or Guichet unique refusal may concern an apostille, translation, identity document, registered-office proof, corporate purpose or beneficial-owner declaration. That administrative issue is not the same as a lease dispute. The founder must also ask whether the lease contains a termination or condition clause linked to registration, whether the deposit can be returned, whether rent accrued during the period and whether a personal guarantee remains enforceable.<\/p>\n

If the shareholders or legal form change after signature, the response should be faster than waiting for a dispute. Prepare a written corporate file containing the original lease, the new articles, the registration extract, the takeover decision, the change memorandum and a landlord notice. State expressly whether the company remains the same legal entity after a change of form or whether a new entity is being introduced. Explain the commercial reason for the change, confirm the same premises and business purpose, and attach the evidence of authority. Where the landlord\u2019s consent or an amendment is required by the lease, obtain it before the new entity begins operating from the premises.<\/p>\n

The founder should also check whether the lease\u2019s permitted-use clause is wide enough for the final activity. A company may begin with consulting services and later add retail, hospitality, storage, manufacturing or customer-facing operations. A change in legal form does not authorise a change in use. Planning, safety, insurance and licensing issues can be independent reasons for the landlord to object. The founder\u2019s file should therefore include the intended activity, any licence or authorisation, insurance confirmation and the corporate purpose in the final articles.<\/p>\n

The final checklist is short but should be completed in order:<\/p>\n