That will help protect the interests of the tenant
IN THIS ARTICLE
How to catch the landlord on the violation of pre-trial procedures
When you can not pay the rent payments
Why fail claims about misuse
In practice, there are occasions when the landlord is trying to terminate the lease of non-residential premises and evict the tenant. However, court practice shows: there are certain mechanisms to protect the rights of the tenant of the landlord’s unreasonable demands. In this article we will present the materials of judicial practice, which will help protect the company from legal counsel early out in the framework of negotiations with the landlord and the court.
When the landlord has the right to terminate the contract
To select the correct line of defense, first of all turn to those cases where the landlord has the right to demand cancellation of the contract. The Civil Code provides for a different procedure for contracts concluded for an indefinite period and concrete.
In the first case an agreement can be terminated at any time. The only condition: the landlord must send the tenant a written warning for the three months (if the contract period shall not be increased) to the termination of the contract (Art. 610 of the Civil Code). After this period, the contract is automatically terminated.
In the second case, the lessor as a general rule do not have the right to demand early abandonment of office. He can only offer it to the lessee, and the failure of the last operation of the treaty will continue. This is due to the fact that the unilateral abandonment of the treaty is not permitted (Art. 450, 610 of the Civil Code). Exceptions to this rule may be caused by a material breach of contract by the tenant, or significant changes in external circumstances.
It is essential to a breach of contract under which the lessor does not get what the expected, signing a contract, or is deprived of what had in its custody (art. 450 of the Civil Code). Starting from this general rule, all possible abuses by the landlord can be divided into three groups.
The first group — a violation of conditions of rent.
The second group — a violation of the conditions of the use of property (when the tenant uses the property for other purposes, that is contrary to the terms of the contract or worsens the condition of the premises)
Finally, the third group — action tenants who are named in the treaty as the basis for its early termination.
The change in circumstances can serve as a valid reason for termination of the contract, if they have changed so that the parties, in anticipation of such changes at the time of the transaction, would never have entered into a contract is not concluded, or other conditions. Example: The market price per square meter of the leased property has increased so much that if we do not change the size of the rent, the contract would be extremely disadvantageous to the lessor (the decision of the Federal Arbitration Court of the North-Western District of 02.08.07 № A56-32406 / 2006).
In practice, a significant change in external circumstances is rare. Therefore, a closer look at how to protect the interests of the company when the landlord is trying to terminate the contract, citing violations of its terms by the lessee.
Maximum use of pre-trial procedure in the interest of the tenant
As we have said, a lease agreement concluded for an indefinite period, may be terminated only with the written notice of the lessor.
But the early termination of contract is impossible without compliance with the pre-trial procedure. Namely, the lessor is obliged to filing a claim send the tenant a written warning with a demand to eliminate the violation within a reasonable time. This is the most alert and can be a way to protect the rights of the tenant.
We emphasize once again that this warning is a prerequisite for going to court. Therefore, if the address of the tenant no such document has been received, the lawsuit will not be satisfied with the landlord.
CASE STUDY. The landlord did not send a warning to the tenant. He explained his position, he knew that the tenant does not correct the violations and will still have to go to court. These arguments Court declared insolvent and dismissed the claim (the decision of the Federal Arbitration Court of the North-Western District of 02.08.07 № A56-32406 / 2006).
Inaccuracies in the warning (or notification) may also be an important trump card in the hands of the tenant.
CASE STUDY. Renter to prove in court that he had received warnings. In the mail the envelope was listed destination, the name of which does not coincide with the name of the tenant (one word was omitted from the name of the defendant).
In addition, the letter was returned to the sender marked «organization does not appear», respectively, the tenant could not be informed of the cancellation of the contract. In support of its case the tenant introduced numerous e-mail correspondence with the correct name of the company said.
Finally, you can challenge the actual content of the notification of early termination of the contract. The Civil Code imposes two requirements to it: indication of the specific violation by the tenant and the deadline for its removal. Let’s start with the first one. If prevention is not an explicit requirement that a breach of contract is to be eliminated, then this warning is qualified by the courts as a simple sentence to the tenant to terminate the contract, and from there the lessee has the right to refuse. In other words, the absence of the requirement specified in the specific violation that needs to be eliminated, meaning that the procedure is not complied with the mandatory pre-trial settlement of the dispute, and therefore, the court will deny the landlord in a lawsuit.
Now for the term that the landlord must give the tenant to provide a remedy. As practice shows, an indication of the article 619 the Code to correct the violations «within a reasonable time» courts consider as a duty of the lessor to define this term. And now this particular period and shall be reasonable, that is so, for which the lessee has a real opportunity to remedy the violation. If the period is not specified in the notice, the courts qualify him as an ordinary letter containing the discontent of some landlord tenant actions. His direction of the lessee is not subject to pre-trial resolution of the dispute, and the suit does not satisfy the landlord (Regulation
Federal Arbitration Court of the East-Siberian region from 11.01.97 № A74-G / 6-160 / 96
F02-54 / 97-C2).
In addition, the warnings should be clearly stated wish of the lessor to terminate the contract if the tenant does not eliminate the said violation (Information Letter of the Presidium of the Russian Federation from 11.01.02 № 66).
Failure to rent — is not always the basis for the termination of the contract
However, there are situations where the tenant has a real opportunity to avoid the cancellation of the contract on this basis. First, if the delay in payment of rent (more than two times in a row), although it was, but by the time the dispute is resolved (ie the tenant listed fees and interest for late payment), the courts refuse the landlord terminate the contract. This is due to the fact that, within the meaning of the Civil Code (Art. 450,
619) Termination is an exceptional measure when all other means of influence on the tenant exhausted. In addition, if the debt has been repaid, the landlord does not deprive him of what he expected, signing a contract — in other words, the violation is no longer significant (Regulation
Federal Arbitration Court of the Moscow District of 14.05.07 № KG-A-40-69199 / 06-89-589).
Second, if the rent has been paid, but not the full amount, the court terminates the contract is not in all cases. The claim of the lessor will be satisfied only if such a basis was provided for early termination of the treaty itself or the court finds a violation of an essential (for example, failure to make payments in the aggregate constitute a large amount).
Otherwise, the courts refuse to satisfy the claim (Decree of the Federal Arbitration Court of the Moscow district of 19.03.07
Number A40-50549 / 05-64-383).
An important point: if the landlord accepted part-time lease payment (not returned it), which means that it has expressed its consent to the execution of parts (Art. 310 of the Civil Code). Consequently, the fact of non-payment is not and he can claim only the amount of debt and a penalty for delay, but not termination.
Third, the responsibility for making rent payments can be withdrawn netting. Thus, in accordance with Article 616
Civil Code, the lessee has made major repairs (although it was the duty of the landlord), he has the right to offset their costs in the rent. Therefore, although the rent and not pay the landlord the right to terminate the contract for the fact of its failure to pay does not arise (the decision of the Federal Arbitration Court of the Moscow District of 28.04.07 № KG-A40 / 2860-07). However, here we must take into account the need to make major repairs should be no fault of the tenant. For example, if it is due to non-compliance with fire safety rules he was responsible for the fire, and then made a major overhaul, it is not a basis for offsetting (Decree of the Federal Arbitration Court of the Central District of 22.03.07 № A64-
11872 / 05-12).
Counter-claims against the lessor to the use of premises
Another group of the grounds on which the landlord has the right to demand termination of the contract — a violation of conditions of the tenant to use the property. The most common are the demands of the lessor to terminate the contract due to redevelopment or misuse of facilities.
Production of redevelopment without the consent of the landlord is really misconduct.
But again, remember that the landlord is required to give notice to rectify breaches of contract, with the term for him. If the effects of redevelopment will be removed, termination of the agreement will not happen (the decision of the Federal Arbitration Court of the Volga-Vyatka district on 14.03.05
Number A29-8310 / 2003-2E).
In addition, it is necessary that a redesign of the lessor has suffered significant damage, but in practice, prove that it will be difficult (Decree of the Federal Arbitration Court of the Moscow District of 16.03.06 № A40-14685 / 05-77-116).
Finally, if the written consent of the lessor was not, the tenant may try to prove that the landlord knew about it but did not interfere.
CASE STUDY. Tenant proved that the landlord was aware of the ongoing redevelopment: he was transferred to the new data sheets. Therefore, the claim of the lessor for early termination of the contract under the pretext of illegal redevelopment Court dismissed
(Decree of the Federal Arbitration Court
Moscow District of 19.04.07 № A41-K1-14715 / 06).
Another possible line of defense. If the lease agreement was not a ban on the production of re-planning, you can try to recognize her permanent improvements. If you make permanent improvements without the consent of the lessor, the only legal consequence — an impossibility with the termination of the contract with the owner of the premises to recover their costs. But not early termination of the contract (Art. 623 of the Civil Code).
Now about the misuse of the premises. To the landlord could terminate the contract on this basis, it is necessary that the very purpose has been clearly specified in the contract. For example, the room is transmitted exclusively for the «food trade», «of the fizkulturnoozdorovitelnoy activity» and so on. D. Only in this case, the landlord has a chance to win the case (ruling of the Federal Arbitration Court of the Urals District
28.03.07 № A76-29055 / 05). In accordance with the Civil Code of the property must be used for purposes stipulated in the contract or in accordance with the purpose of the property. So, the appointment of non-residential premises — use it to solve the economic problems of the tenant. Therefore, if the objective of the contract is not specified, then terminate him for misuse of the property can not be (the decision of the Federal Arbitration Court of the Moscow district of 19.03.07
Number KG-A40 / 1697-07-P-1.2). Even if the type of activity chosen by the tenant, initially was not known to the lessor.
Finally note that cancellation of the contract on this basis is not put at the mercy of the landlord of causing some damage. Enough violations purpose specified in the contract, and ignoring warnings tenant change it within a reasonable time (judgment of the Federal Arbitration Court of the East-Siberian region from 11.02.97 № A74-G / 6-160 / 96).
Is it lawful under the lease agreement, suggesting its early termination in the event of a single non-payment of rent?
Yes, it is a condition of the contract lawfully. If the treaty itself contains a provision for its dissolution in the case of a single non-payment of rent, the court found a violation of this condition is essential, and therefore — the basis for early termination of the contract (Information letter Presidium of the RF from 01.11.02
It recognizes whether the court a good reason for delay in payment the difficult financial situation of the tenant
No, it does not recognize. The only valid reason for non-payment of rent payment are force majeure, which are listed exhaustively in the Code (Sec. 3 of Art. 401 of the Civil Code). No breach of its obligations contractors, or any other reason the courts do not take into account (the decision of the Federal Arbitration Court of the North-Western District of 28.08.07 № A66-9009 / 2006).