WeCount Team
17 June 2021
Commercial lease agreement is a mandatory element for any company wishing to rent premises to carry out commercial activity. In Morocco, the commercial lease contract is an obligation for the parties to define together the rental of commercial premises.
Essential document when founding a new company in the framework of its domiciliation, the commercial lease contract is a rental contract established between the lessor and the tenant of premises.
Right to take over abandoned or closed premises, it is mandatory for the parties involved to draft a commercial lease contract. This written contract will be composed in particular of a descriptive statement of the leases in rent. This contract will correspond to the new amendment of the scope, Law 49-16 (February 11, 2017), which has considerably changed the legal environment of the regulations on commercial leases.
But what do we know about this contract, which is often a source of high tension and misunderstanding between the owner and the tenant of commercial premises? How to avoid conflicts? How to manage the disputes relating to it?
The commercial lease is based on a contract established between two parties: the tenant and the owner of commercial premises (also called the lessor).
In other words, it is a written document that gives the tenant the right to occupy the property detailed in the contract in the context of a commercial, industrial, or craft activity. For example, the commercial lease can be used as an office, a room, or a warehouse by the tenant company.
The commercial lease gives the tenant rights. In that case, the latter must submit to a certain number of obligations defined by the Dahir ne1-16-99, promulgating the new ne49-16.
For any new company creation in Morocco, it is essential to define a head office. The commercial lease contract is an alternative to the domiciliation solutions available to new companies. It will have to be provided at the time of the company's creation because it will appear among the required documents.
The tenant's profile can be a natural person or a legal entity such as a company (SARL, SA, Branch, Etc...) or an association, a trader, or craftsman.
The commercial lease contract is in Morocco a vital element of commercial property. It is very protective for the tenant.
The commercial lease is defined by several features such as:
And others which are as many characteristics defining the lease binding an owner of a room or a tenant who occupies this one the framework of a commercial, industrial or artisanal activity.
You should note that the duration of the commercial lease in Morocco is provided for a minimum period of 9 years. Otherwise, it will be considered an emphyteutic contract. In easier terms, without a clause limiting the duration of the lease, it is then excluded from the scope of the new law.
Also, note that the right to lease does not vest from the first hour for parties who have not previously established one under the new law. Instead, it is obtained after two years of occupancy, except with a proof of payment of the rent, recorded in writing in the lease contract or a separate deed.
There are two possible situations in which the tenant wishes to renew his commercial lease contract. First, suppose the lessee and the lessor have not agreed on the duration of the new lease. In that case, the new lease must retain the same terms as the previous one, particularly for the time of the lease to be renewed, but the duration may not exceed five years.
However, in the case of a lease of indefinite duration, the new lease shall retain the same terms as the previous lease without exceeding three years. It is then renewed by tacit agreement.
A commercial lease contract can be terminated by the lessee or by the lessor, at its term, or before (according to the conditions defined in the contract).
When one party wishes to terminate the commercial lease contract, they must notify the other party either by bailiff, notary or through a registered letter acknowledging receipt.
At the time of termination of the lease, the lessee must pay the lessor all sums due, failing which the security deposit cannot be returned to him in due form.
After establishing the inventory of fixtures of the premises, the lessor must return the tenant all or part of his security deposit, according to the general state of the property returned by the tenant to his owner.
Lessor and lessees are often confronted with numerous recurring questions when choosing a commercial lease or a professional lease. It is, therefore, crucial to know the specificities of each contract as well as the advantages and disadvantages of each type of lease.
Intended for the rental of premises for an activity that is not commercial in nature, the professional lease contract differs from the commercial lease contract on several points. Indeed, the lessee of a professional lease contract is prohibited from carrying on commercial activity in the premises covered by the lease.
As its name indicates, contrary to the commercial lease contract, the professional lease contract is strictly assigned to a professional function. Therefore, it cannot, in any case, be used for a dwelling of any kind.
The professional lease contract is intended for liberal activities and persons taxed in non-commercial profits. We can quote in this lot the liberal professions as the doctors, the architects, the chartered accountants, Etc.
Whether it is for a professional or commercial lease, each contract has its advantages and disadvantages.
The commercial lease offers a considerable advantage to the operator and the lessor because its interest lies in the legal system that defines it, which is built on the idea of ensuring the maximum durability and continuity of the exploitation.
This is advantageous for both the lessee, who thus has better visibility of the cash flow, and for the lessor who benefits from a flow of rents without vacancies, increasing the value of his asset.
In most cases, the commercial lease is concluded for a period of three years with the possibility, in some instances, of extending the contract for a period of nine years.
Contrary to the commercial lease, the professional lease contract offers less protection for the tenant. The tenant is obliged to wait for the end of the agreement to terminate it, except if the termination of the lease in anticipation was envisaged in terms of the contract.
Mandatory clauses govern the commercial lease contract.
Among the mandatory clauses is the purpose of the contract, i.e., the activities that can be carried out in the rented premises.
However, the two contracting parties may provide an "all businesses" lease, thus allowing any activity to be carried out: sales, restaurants, medical actions, manufacture of goods, training, Etc.
The duration of the lease is indicated in the contract and is spread over a minimum of 9 years. You should note that the commercial lease is necessarily concluded for a fixed term. However, it is possible to end a lease for a shorter period by completing a derogatory lease of a maximum of three years.
In addition, the commercial lease contract also specifies the amount of rent owed by the tenant in return for taking possession of the premises. The rent is payable in arrears, also indicated in the contract: the payment can be monthly, semi-annual, or quarterly. The tenant can also pay the rental amount in advance before beginning the period it concerns. The two signatories of the contract determine it.
The parties must also agree on a security deposit corresponding to a fixed amount (often equivalent to one or more months' rent). The landlord will return this deposit to the tenant at the end of the lease contract if the latter has respected all his obligations, notably concerning the excellent maintenance of the premises and the payment of the rent.
The security deposit acts as a guarantee for the landlord. In case of damage caused by the tenant, he can use this amount to make any necessary repairs.
The security deposit does not serve as an available amount to pay the rent. Therefore, the tenant will have to pay his rents to his landlord until the last day of the rental of the commercial premises.
However, the parties must not forget that for the establishment of any official contracts, such as a commercial lease contract in Morocco, the signature of the two parties must be legalized. To legalize a signature in Morocco, the two parties will have to go either to the prefecture or to the commune or a notary with their CIN or passport for foreigners. The legalization of the signature will attest that the document is original and that the signatures are certified.
An official document by which the parties agree to give and take a designated premise for rent. There are two types of promises: a synallagmatic and a unilateral contract.
A unilateral promise to lease is when a landlord promises to make his premises available to a tenant or when the tenant promises to rent the landlord's premises. The party initiating the promise is called the promisor, while the other is called the beneficiary. Note that the contract to lease is not a final commitment. A lessor may accept a promise without exercising the option.
Conflicts between landlords and tenants are frequent, and they often revolve around the payment of the rent. But what happens in case of non-payment of the rent in a commercial lease contract in Morocco?
Contrary to other countries such as France, in Morocco, the lessor is often the one who is better off. Especially in the case of a commercial lease where the lease statute allows for the possibility of acquiring the resolutory clause noted in summary proceedings. This condition offers a dissuasive weapon to the lessor.
If there is unpaid rent, the lessor can quickly evict the tenant and re-let the premises to someone else.
In this case, people often resort to amicable negotiations to find solutions. Friendly agreements are quicker, wiser, and less expensive than taking legal action.
It can also happen that an eviction following a court decision becomes the last resort. In this case, the landlord must give his tenant a formal notice to pay his debt by a bailiff or by registered letter acknowledging receipt. Following the court decision, the eviction will have to be done in front of both parties. It will necessarily take place between 6 and 21 hours.
Beforehand, it is recommended to send a summons within two weeks.
Fourteen days after sending the summons, if the tenant has still not paid his debt, his landlord has the right to initiate more complex legal proceedings.
The professional lease seems to be favored by some, mainly because of the great freedom it gives to the parties to fix the lease terms. But, on the other hand, the commercial lease is the most protective contract for the lessor and the lessee.
This protection is also evident in the event of difficulties between the owner and the lessee. For both parties, it is preferable, even recommended, to always be in the best possible legal framework.
Isn't this a guarantee of security in an environment where conflicts are recurrent?
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