- Ruling: Casablanca Commercial Court of Appeal, No. 567 of 13 February 2019 (case 2018/8206/1732)
- Facts: company A.K. has operated a commercial unit leased to M.H. since July 1972 (vehicle sale and rental). The landlord serves notice to quit for demolition/reconstruction (dahir of 24/05/1955)
- Landlord's argument: the land is earmarked for public facilities in a development plan; this would be force majeure releasing him from the eviction indemnity
- Court's answer: NO. Merely publishing a plan, even one amounting to a public-utility declaration, is not an act of public authority causing dispossession
- As long as no cessibility decree, no expropriation order, no official act has been issued, the landlord keeps all contractual obligations
- On the amount: the court reduces the indemnity from MAD 2,023,900 to MAD 1,566,000 (lease right MAD 1.5M retained; relocation cut from MAD 487k to MAD 30k)
- Lesson: an uncertain regulatory project does not release you from a certain contractual obligation — the distinction is between risk and proven impossibility
1. The trap the court shuts
The landlord, ordered at first instance to pay MAD 2,023,900 in eviction indemnity, tries a clever route on appeal: the public-utility declaration resulting from the development plan would make demolition impossible, so the notice to quit would be without cause, so the eviction indemnity would not have to be paid. It is a shrewd transposition of the reasoning in the Administrative Cassation ruling of 29/12/2004 onto commercial-lease terrain.
The court shuts the door with a sharp formula:
As long as no formal expropriation act has occurred — cessibility decree, order, judgment, taking of possession — the landlord remains fully in control of his property, and therefore a debtor of his contractual obligations. The plan's theoretical public-utility declaration is not enough to neutralize an ongoing contractual situation.
2. The critical distinction with the Casablanca Commercial Court ruling of 24/12/2024
The nuance is essential for lawyers and operators. The same Casablanca Commercial Court of Appeal admitted force majeure in another case in December 2024 (final refusal of a building permit for a new urban-planning scheme). Why accept it in 2024 and refuse it in 2019?
- In 2024: there was a documented FINAL REFUSAL of a specific administrative authorization, after 4 years of applications. The impossibility was established, dated, irreversible
- In 2019: there was ONLY a published development plan. No authorization refused, no expropriation procedure started, no dispossession act. The impossibility was theoretical, abstract, contingent
The lesson: force majeure requires an established fact, not a regulatory risk. As long as the administration has not materialized its intention through an act (permit refusal or expropriation actually initiated), there is no impossibility within the meaning of article 268 of the Code of Obligations and Contracts (DOC).
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3. Re-characterizing the premises — from “shed” to commercial business
On the substance, the landlord tries another clever route: the contract describes the premises as a “simple shed”, therefore no commercial activity in the strict sense, therefore no eviction indemnity under commercial-lease rules. Here again, the court shuts the door:
The “shed” label is cosmetic. Since the clauses authorized “any activity consistent with the tenant's corporate purpose” — vehicle sale and rental — the commercial nature of the lease is established. Commercial-lease protection fully applies, eviction indemnity included. The court adds, with a touch of procedural irony, that the landlord himself had invoked the commercial-lease provisions to obtain the eviction — so he can no longer set them aside to escape the indemnity.
4. The amount — how the appraisal held and what was cut
The total indemnity of MAD 2,023,900 is reduced to MAD 1,566,000. Breakdown adopted by the court:
| Item | Amount awarded |
|---|---|
| Lease right (goodwill) | MAD 1,500,000 |
| Clientele and reputation | MAD 36,333 |
| Relocation costs (reduced) | MAD 30,000 (claimed 487,600) |
| Total | MAD 1,566,333 |
5. The lesson for commercial tenants and landlords
For the commercial tenant facing a notice to quit motivated by a demolition project, do not be deterred by the development-plan argument. As long as no official expropriation act is produced, the eviction indemnity is due. Have an appraisal of the lease right and business value prepared before the hearing — that appraisal is what quantifies 80% of the indemnity. For the landlord, conversely: do not build your defense strategy on the prospect of a public project — as long as it is not materialized, you remain a debtor.
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