Terrace rights transfer: what is it?
The right to terrace is the right granted by the administration to occupy a public domain. It must be understood that this right, far from being total and definitive, is temporary and precarious. The convention to occupy the public domain is given in Intuitu Personae (to a specific person). Each agreement is therefore personal between two parties. In fact, contrary to what the term “transfer” may suggest, this is not a question of transmitting a right of terrace. It is necessary to apply for a new road permit.
So how to proceed with a transfer of terrace rights? The purchaser must apply for a new road permit. This request may take a long time to process. It is entirely possible that this will create a period during which the exploitation of the terrace is impossible. Nor should we omit the possibility of an administrative refusal in the face of this request.
Authorization of the transfer prior to the sale of the business
Art. L. 2124-33. of the Code of the Property of Public Entities:
'Any person wishing to acquire a business or an agricultural fund may, in advance, request from the competent authority an authorization to temporarily occupy the public domain for the exploitation of this fund.The authorization takes effect as from the receipt by the competent authority of proof of the completion of the transfer of the fund. ”
The request for authorization to occupy the public domain prior to the sale of the business allows you to save several months.
Obtaining the new authorization may be entered in the act of transfer of the business as a condition suspensive to the completion of the transfer. This means that in case of refusal by the administration, the transfer of the business will not take place. This solution therefore makes it possible to protect the purchaser. Thus, commercial transactions with terrace are more secure.
Law and regulations concerning the sale of a business
Unions and catering professionals have highlighted the dangers of this road authorization regime. Intuitu Personae, and advocate for road rights to be linked to the business and not to the person of the operator.
The Council of State seems to want to begin to relax the law. Since September 18, 2015, it has admitted the possibility of transferring an authorization, or an agreement to occupy the public domain, if, and only if, the manager of this domain gives his written agreement (CE, Sep 18, 2015, Société Prest'air, req. no. 387315).
Such a decision appears to be a first step towards a relaxed regime for the transfer of road permits. It would no longer be necessary to completely renew an application for occupation, which is both temporary and precarious, of the public domain. This would allow for a simple authorization of the transfer upon notification to the manager of the public domain of the transfer.
If you want to take over a restaurant business, do not hesitate to contact our expert lawyers who will help you set up the transfer of your terrace.
