Many of us wonder if the pandemic caused by the spread of the virus SARS-CoV-2 affects housing and housing rules. Doubts On the Side landlords and tenants mainly concern the possibility of termination of the lease with immediate effect due to ‘higher power’, excluding contractual terms and time limits.
True, the day 14 March 2020 The Regulation of the Minister of Health has declared an epidemic which can be regarded as a higher power, but in the case where the contract does not mention its possibility of denunciation in relation to the existence of force majeure, the existing provisions governing the lease apply. This means that both sides continue, landlord and tenant, will have the right to enforce the performance of the lease without change, regardless of the current situation in the country.
However, according to the new provisions contained in the so-called crisis shield, interfering quite strongly in the lease agreement, landlord may not terminate the rental contracts and the amount of rent by day 30 June 2020
Rental for a fixed period or an indefinite period
A rental agreement may be concluded for an indefinite period or a fixed period. An agreement concluded for an indefinite period is one which does not contain the duration of the agreement and at the same time does not arise from the circumstances.
In the case of a contract for an indefinite period, the situation appears to be obvious, the termination of such a contract shall take place in accordance with contractual terms or in the absence of such provisions, in accordance with the statutory deadlines for termination specified under Article 673(2) Civil Code Act.
However, these terms depend on the time limits in which the rent is payable. This means that when the rent is paid per month, the rent can be paid out one month in advance at the end of the calendar month.
In the case of rent paid in periods longer than one month, the rent may be paid out on three months ahead at the end of the calendar quarter. However, if the time intervals are shorter, the contract can be terminated on three days ahead when the lease is daily, on one day ahead.
The situation is slightly different when a fixed-term contract is terminated. An agreement concluded for a limited period of time may be terminated only in accordance with the provisions contained therein and the time limits provided for therein.
The agreement, which specifies the time for which it is concluded, is intended to constitute the durability of the rental relationship and, consequently, a certain protection of the rights of both parties to the contract.
The situation is not as obvious as it may seem, because otherwise the possibility to terminate a contract from a perspective tenant, otherwise from a perspective landlord.
Prohibition of termination of leases in the crisis package
However, according to the new provisions contained in the so-called crisis shield, interfering quite strongly in the lease agreement, landlord may not terminate the rental contracts and the amount of rent by day 30 June 2020
However, the prohibition does not apply to situations where the owner of the premises can terminate the contract immediately only in certain cases under Article 11 The Housing Act. For these purposes exhaustively the reasons mentioned include, inter alia, situations where tenant:
- • use the premises in a manner contrary to or contrary to the contract;
- • hired, hired or donated for free use the premises or part of them without the required written consent of the owner.
It should be borne in mind that the provisions contained in the contract must not be contrary to the law, as this renders them invalid. In addition, the provision does not provide for a situation related to the state of emergency, such as an epidemic.
Use of the immediate procedure for termination of the contract
However, it is possible to terminate the lease immediately, which concerns both types of contracts. The immediate procedure shall enable the parties to terminate the contract without delay. Such notice shall constitute a specific procedure and may only be used in specific cases.
tenant has the right to terminate the lease agreement immediately where:
- • the premises rented by him have defects which prevent the use thereof;
- • use of the premises endangers health tenant or his household, as well as those employed by him.
Possible use by tenant immediate notices due to the emergency situation of the epidemic is not exactly the right step, because it is not the result of the Act.
Rental agreement at a large commercial facility during the coronavirus pandemic
The new provisions contained in the so-called crisis shield also contain provisions concerning the rental of premises for commercial premises with a sales area above 2000 m2.
During the period of validity of the prohibition on operating in commercial premises with a sales area above 2000 m2 in accordance with the relevant provisions:
- the mutual obligations of the parties to the lease, lease or other similar contract through which the commercial space is put to business use (contracts) expire;
- which is entitled to use the commercial area (authorised) should submit to the making available an unconditional and binding offer of the will to extend the validity of the contract under the existing conditions for a period of prohibition extended by six months. This offer should be made during the period three months after the date of lifting the ban. Provisions section 1 they shall cease to bind as soon as the offer is unsuccessful.
This means that tenant premises in shopping malls above indicated 2000 m2 may benefit from the exemption from the obligation to pay rent and operating charges in full throughout the period prohibited. tenant are not obliged to pay and at the same time landlord are not obliged to provide tenants premises.
However, to tenant could have benefited from the exemption within the time limit 3 months from the date of removal of the prohibition on the pursuit of business, submit landlord a binding offer to extend the contract in accordance with the existing conditions. Extension for a period six months.
Because of voluntary choice tenant will be able to benefit from the exemption, taking into account the above consequences in the form of an extension of the contract or continue to pay the rent, but without an extension of the contract. The choice will belong to everyone tenant individually.
However, it should be borne in mind that the exemption cannot be used tenant, who may continue to operate in commercial facilities with a surface area below 2000 m2, is tenant in other objects.
Application of the rebus sic stantibus clause - occurrence of an extraordinary change in relations
The light in the tunnel seems to be invoking a request to the court by one of the parties to the agreement on the basis of Article 357 1 the civil code and the examination of the rental agreement concluded by the parties.
That provision indicates the possibility for the court to consider the modification of the contract concluded by the parties, but only after those conditions have been fulfilled.
The grounds for the court’s application of the rebus sic stantibus clause are the occurrence of an extraordinary change in relations causing excessive difficulties in the performance of the benefit or threat one of the parties a gross loss; which the parties did not foresee.
According to the doctrine of extraordinary change of relations, there is an objective and widespread transformation of social relations (including economic relations) into a unique (extraordinary) way affecting reality. The reason for such transformation may be natural factors (e.g. flood, inferno), social (e.g. universal strikes, rapid change of political system), as well as legal (e.g. rapid change of existing regulations).
However, it should be remembered that the court uses Article 357 1 the civil code after consideration of the interests of the parties, in accordance with the principles of social coexistence, may rule, indicating the manner in which the undertaking is carried out, the amount of the benefit or even the termination of such a contract. The last way the court will apply is after examination two considers that it is not possible to adapt the undertaking to the exceptionally changed conditions.
It seems that the current state of epidemics can also be counted as factors that may cause the court to comply with the termination of the lease agreement concluded by the parties. The above indicates that it is always worth trying.
Author: Nikol Małaszewska-Dąbrowska
Manager at the Legal Department. From 2011 It provides advice to leading companies from various sectors of the economy. He has extensive experience in conducting comprehensive projects in the field of national and international law. It participates in legal and tax reviews conducted to identify risks. He is also the author of numerous articles on tax issues, published in the industry press.