What environmental clauses should a commercial lease contain?

In a commercial lease, environmental clauses specify the obligations of the landlord and the tenant regarding environmental protection, the prevention of contamination risks, and the allocation of certain responsibilities.

The nature and scope of these clauses depend in particular on the activities carried out on the premises, the previous use of the building, environmental risks and the conditions negotiated between the parties.

The commercial lease may include provisions such as:

• The tenant's obligations regarding compliance with environmental laws and regulations applicable to its activities;
• Conditions relating to the use, storage, handling and disposal of hazardous or contaminating substances;
• Environmental risk prevention measures and reporting obligations in the event of an incident or contamination;
• Carrying out environmental assessments or site characterization work, particularly before taking possession, during the term of the lease or upon its termination;
• The procedures for accessing the premises to carry out certain environmental inspections or verifications;
• The allocation of responsibilities regarding contamination prior to the lease or resulting from the tenant's activities;
• The obligations to restore, decontaminate or rehabilitate when the applicable legal or contractual conditions are met;
• Coverage of costs, claims and damages related to environmental contamination.

The landlord may request an environmental assessment when this obligation is stipulated in the lease or agreed upon by the parties. Such an assessment can document the condition of the premises, verify certain contamination risks, and facilitate the determination of responsibilities upon handover.

The lease should also specify the circumstances under which an environmental assessment may be required, the person responsible for carrying it out, and the allocation of the resulting costs.

Environmental clauses must, however, be interpreted in light of the obligations imposed by applicable legislation. An agreement between the landlord and tenant does not necessarily waive obligations that a public authority may impose on either party.

It is therefore important to include environmental clauses adapted to the nature of the activities carried out on the premises and to the risks specific to the building, in order to better define the obligations of the parties during the term of the lease and upon its termination.