In the past three years, due to the impact of the epidemic and other factors, the lessee has been struggling, and a large number of housing lease disputes have also emerged, because of the participation in many cases, the relevant defense opinions and agency opinions are hereby shared as follows. The most important thing is to calculate the amount of rent that should be paid and to explain the reasons for the overdue. If the landlord has not returned the deposit, overpaid rent, equipment in the house and other breaches of contract, it is also necessary to file a counterclaim in a timely manner.
Counterclaim
Counterclaim plaintiff: ***, female, Han ethnicity, born on ** year ** month ** day, live **, ID number: **. Contact: **.
Counterclaim Defendant: ***, female, Han ethnicity, born on ** year ** month ** day, live **, ID number: **. Contact: **.
Counterclaim
1. Request the court to order the counterclaim defendant *** to immediately return the counterclaim plaintiff ***The rent from September 21, 2021 to October 9, 2021 is 11,694.3 yuan, the property fee from September 21, 2021 to December 31, 2021 is 15,657 yuan, the house deposit is 20,637 yuan, and the rent during the epidemic suspension period from August 1, 2021 to August 31, 2021 is 20,637 yuan;
2. Request the court to order the counterclaim defendant *** to immediately return the counterclaim plaintiff***'s items: 1 one-legged round table, 1 long table, 1 safe, 24 chairs, 3 blackboards, 1 set of front desk tables, 1 long table and 8 supporting chairs, if *** can not be returned, the discount compensation *** 6971.21 yuan;
3. Request the court to order that all the counterclaim costs in this case shall be borne by the counterclaim defendant***.
Facts and reasons
There was originally a housing lease contract relationship between the counterclaim plaintiff *** and the counterclaim defendant ***, *** the leased house was used for English training, but due to national policy reasons, the housing lease contract in this case could not be continued to be performed, and the lease contract relationship between the two parties was terminated, *** moved out of the house on September 20, 2021.
After the introduction of the national "double reduction" policy, the two sides have held many consultations on the termination of the contract. Around September 13, 2021, *** began to let people who intended to rent go to check the house involved in the case, *** also informed the password of the house door lock to the ***. Since September 13, 2021, *** has begun to tidy up the house, and has cooperated with the **** to take people to see the house many times. On September 20, 2021, *** moved out of the house, but *** did not let *** take some office items out of the house.
It is believed that the sudden introduction of the national "double reduction" policy has led to the inability to continue to perform the lease contract, which is a force majeure event that both parties could not predict when signing the rental agreement, and does not belong to the unilateral breach of contract. And from August 1, 2021 to August 31, 2021, due to the impact of the epidemic, *** can not use the house for English training. Therefore, the rent from September 21, 2021 to October 9, 2021 is 11694.3 yuan, the property fee from September 21, 2021 to December 31, 2021 is 15657 yuan, the house deposit is 20637 yuan, the rent during the epidemic shutdown from August 1, 2021 to August 31, 2021 is 20637 yuan, and the office items in the house are returned, and if the *** cannot be returned, the discount compensation is compensated.
In summary, in order to open English training, *** has invested a lot of manpower and financial resources, and installed a glass partition for the house, the sudden introduction of national policies, but also brought huge economic losses to the ***. In order to safeguard its own legitimate rights and interests, the counterclaim plaintiff hereby submits the above-mentioned counterclaim application to the court, requesting the court to find out the facts in accordance with the law and support the counterclaim plaintiff's counterclaim claim!
Sincerely
Peoples court
Counterclaim:
Year Month Day
Pronouns
Dear Presiding Judge,
Henan Chongdi Law Firm accepted the entrustment of the **** and appointed the lawyer as the entrusted agent to participate in the dispute between the plaintiff and the **** housing lease contract, and the agent hereby issues the following representative opinion based on the facts of the case and the evidence presented by both parties in this case and the trial, combined with the focus of the dispute in this case:
I. Due to the "double reduction policy" issued by the state, the contractual relationship in this case was terminated on September 20, 2021, and the reason for the termination of the contract in this case was force majeure, not unilateral breach of contract, and the claim that the payment of liquidated damages should not be supported
Rental housing is used for english subject training. On July 19, 2021, the government issued the Opinions on Further Reducing the Homework Burden and Off-campus Burden of Students in the Compulsory Education Stage, that is, the "Double Reduction Policy", requiring all localities to do a good job in the "double reduction" of students in the compulsory education stage, and also to make overall plans for the governance of off-campus training for 3-6-year-old preschool children and ordinary high school students. After the promulgation of this policy, it was impossible to carry out English subject training, and the housing lease contract in this case could not continue to be performed.
After the introduction of the national "double reduction" policy, the two sides have held many consultations on the termination of the contract. Around September 13, 2021, *** began to let people who intended to rent go to check the house involved in the case, *** also informed the password of the house door lock to the ***. Since September 13, 2021, *** has begun to tidy up the house, and has cooperated with the **** to take people to see the house many times. The act of taking people to inspect the house has also indicated that the **** agrees to terminate the lease contract in this case. Do not inform the **** in advance before many times of the house viewing, affecting the *** class, but the *** is still actively cooperating. And *** In the case that the rent has not expired, let the property company tell the **** to lock the door on September 20, 2021, and not let the **** take things and go to class. On September 20, 2021, the **** moved out of the house, and the contractual relationship in this case was completely terminated.
The sudden introduction of the national "double reduction" policy has led to the inability to continue to perform the lease contract, which is a force majeure event that cannot be predicted by both parties when signing the rental agreement, and does not belong to the unilateral breach of contract.
During the trial, the **** recognized the authenticity of our evidence 1-7, indicating that it recognized the chat records between us and the property staff ("nickname: ******") in the evidence 7 and recognized the identity of "******" as the property staff. Combined with the evidence 18-21 provided by us, the following facts can be proved:
1. After the promulgation of the national "double reduction" policy, the two sides have held many consultations on the termination of the contract. Around September 13, 2021, *** began to let people who intended to rent go to check the house involved in the case, *** also informed the password of the house door lock to the ***. Since September 13, 2021, *** has begun to tidy up the house, and has cooperated with the **** to take people to see the house many times.
2. On September 20, 2021, *** moved out of the house, but *** did not let *** take some office items in the house away. The tenants found also moved to the houses involved between September 20 and early October 2021. The lease relationship between the parties was terminated on 20 September 2021.
3. *** A total of 163894.3 yuan was transferred, including a deposit of 20637 yuan, a decoration deposit of 2000 yuan, a rent of 123822 yuan, and a property fee of 17435.3 yuan from March 10, 2021 to June 30, 2021. The decoration deposit of 2,000 yuan in this item is also deducted.
In addition to the above payments to the ***, the *** party pays the property fee of 28182.6 yuan from July 1, 2021 to December 31, 2021 through the way of the pos machine.
Second, due to the impact of the new crown epidemic and the sudden introduction of the national "double reduction" policy, there are also a lot of economic losses, *** counterclaim claims against deposits, overpaid rent, rent during the epidemic shutdown and discounted prices for items in the house should be supported by law
Between 1 August 2021 and 31 August 2021, the COVID-19 pandemic is more severe. On July 1, 2021, the Office of the Leading Group for Epidemic Prevention and Control in Jinshui District issued the "Emergency Notice on Doing a Good Job in the Current Epidemic Prevention and Control Work", which requires reducing the gathering of people in the jurisdiction, stopping non-essential gathering activities, and not holding large-scale mass activities in principle. On August 1, 2021, the Jinshui District Bureau of Culture, Tourism and Sports also issued a notice that all public cultural and entertainment venues in Jinshui District were temporarily closed. Due to the impact of the epidemic, in order to avoid gathering people, *** can not use the house for English training.
On May 9, 2020, the National Development and Reform Commission, the Ministry of Housing and Urban-Rural Development, the Ministry of Finance, the Ministry of Commerce, the People's Bank of China, the State-owned Assets Supervision and Administration Commission, the State Administration of Taxation, and the State Administration for Market Regulation jointly issued the Guiding Opinions on Further Helping Small and Micro Enterprises and Individual Industrial and Commercial Households in the Service Industry to Alleviate Housing Rent Pressure in Response to the COVID-19 Epidemic, which encourages lessors to consider the actual difficulties of tenants, on the basis of equal consultation between the two sides. Reduce or postpone the collection of rent. In judicial practice, considering that the COVID-19 epidemic has dealt a serious blow to the market, the court will also take into account the epidemic situation and reduce some of the rent for the lessee.
Just after the launch of English subject training, it has suffered from the dual impact of the new crown epidemic and the national double reduction policy. Although the **** suffered huge economic losses and the training institutions that were opened could not make ends meet, even if they borrowed money from relatives and friends, they still paid the rent and property fees in accordance with the contract, and the rent was paid to October 9, 2021, and the property fee was paid to December 31, 2021, and there was a situation that exceeded the contract agreement to pay rent and property fees.
After negotiating with the **** to terminate the contract, he cooperated with the **** to find a new tenant to see the house, and the house involved in the case was also rented to others by the **** at the end of September and the beginning of October 2021. In handling the contractual relationship between the two parties, it has always been in a positive and cooperative attitude.
At the trial, the **** also agreed to let the **** remove the contents of the house.
Moved out of the house on 20 September 2021. The lease contract relationship between the two parties was completely dissolved. The specific calculation details of the counterclaim claims made are as follows:
1. Refund the rent of 11,694.3 yuan from September 21, 2021 to October 9, 2021
(1) The rent from April 10, 2021 to September 20, 2021 is 112,127.7 yuan, which is calculated as follows:
From April 10, 2021 to September 20, 2021, a total of 163 days, 20,637 yuan÷ 30 days× 163 days = 112,127.7 yuan
(2) *** The actual rent paid 123822 yuan
(3) The rent *** should be refunded 11694.3 yuan, and the calculation method is:
The paid rent 123822 yuan - the rent payable is 112127.7 yuan = 11694.3 yuan.
2. Refund *** Overpayment of the property fee from September 21, 2021 to December 31, 2021 is 15,657 yuan, and the calculation details are:
From September 21, 2021 to September 30, 2021, the property fee was 4697.1 yuan / month× 1/ 3 months = 1565.7 yuan
From October 1, 2021 to December 31, 2021, the property fee was 4697.1 yuan / month×3 months = 14091.3 yuan
The above total property fee is 15657 yuan.
3. Return the **** house deposit of 20637 yuan
4. Refund the rent of 20,637 yuan during the epidemic shutdown from August 1, 2021 to August 31, 2021
5. The details of the items returned are as follows:
(1) One one-legged round table 1540 yuan
(2) 1 long table 551 yuan
(3) 1 safe 519.33 yuan
(4) 24 chairs 1307 yuan
(5) 3 blackboards 1453.88 yuan
(6) 1 set of front desk tables 600 yuan
(7) 1 long table and 8 matching chairs 1000 yuan
If the above items cannot be returned, the discounted price of the *** items should be paid in total of 6971.21 yuan
The above total: 75596.51 yuan
agent:
Dear Presiding Judge and Judge,
In the case of the dispute over the lease contract between *** and *** law firm, Henan Law Firm accepted the entrustment of *** and *** (hereinafter referred to as ***), appointed a lawyer as an agent to participate in the litigation of this case, and based on the trial and the evidentiary materials of the relevant case, hereby put forward the following agency opinions:
1. As of February 28, 2021, the rent payable is ***
(1) The agreement on rent and the payment of rent in the contract
According to article 4.1 of the lease contract, the annual rent from September 1, 2019 to August 31, 2020 is 880,000 yuan, and the annual rent from September 1, 2020 to August 31, 2021 is 970,000 yuan.
In the first instance trial, both parties agreed that before August 15, 2020, *** had paid the rent of 10,000 yuan from September 1, 2019 to August 31, 2020. During the second instance trial, *** paid the rent of 10,000 yuan on June 21, 2021. After the end of the second instance, *** paid the rent of 10,000 yuan on July 8, 2021, and the rent of 10,000 yuan on July 15, 2021. On January 21, 2022, the rent was deducted.
(2) Rents should not rise after September 1, 2019, and should still be calculated according to the standard of $10,000. Considering that kindergartens are often unable to attend classes normally due to the COVID-19 pandemic, we recognize the three-month rent reduction for the original trial.
The outbreak of the new crown epidemic in 2019 has led to major changes in the market situation, the original good market environment when the two sides signed the contract has ceased to exist, and the business activities of market economy entities have been difficult. Article 533 of the Civil Code stipulates that after the conclusion of the contract, the basic conditions of the contract have undergone a major change in the basic conditions of the contract that the parties could not foresee at the time of the conclusion of the contract and are not commercial risks, and if the continued performance of the contract is obviously unfair to one of the parties, the adversely affected parties may renegotiate with the other party; if the negotiation fails within a reasonable period of time, the parties may request the people's court or arbitration institution to modify or rescind the contract. The people's court or arbitration institution shall modify or terminate the contract in accordance with the principle of fairness in light of the actual circumstances of the case. At the same time, the two parties agreed in Article 4.1 of the housing lease contract that the lessor guarantees not to increase the rent for any reason during the validity period of the contract, except due to the impact of force majeure such as government policies (such as national economic policies, adjustment of real estate policies, and excessive inflation). If the above circumstances really need to be readjusted, the two parties may negotiate the rent change separately.
Based on the changes in the situation stipulated by law, the negotiable changes agreed in the contract, the current market economic environment, legal provisions and the legal principles of fairness and justice, we believe that the rent should not increase after September 1, 2019, but should still be calculated according to the standard of 800,000 yuan. Considering that kindergartens are often unable to attend classes normally due to the COVID-19 pandemic, we recognize the three-month rent reduction for the original trial.
(3) *** Maintenance costs paid in advance shall be deducted from the rent payable
The rental property provided is more than thirty years old, waterproof, pipes, circuits, etc. The aging is very serious, *** After renting the house, it took a huge amount of money and energy to repair the equipment. Article 712 of the Civil Code stipulates that the lessor shall perform the maintenance obligation of the leased property, unless otherwise agreed by the parties. Article 713 provides that a lessee may request the lessor to repair the leased property within a reasonable period of time when it needs to be repaired. If the lessor fails to perform the maintenance obligation, the lessee may repair it himself, and the maintenance cost shall be borne by the lessor. If the use of the leased property is affected by the lessee due to maintenance, the rent shall be reduced or the lease period shall be extended accordingly.
In this case, the lease contract did not stipulate that the **** would bear the maintenance obligation, so the subject of the maintenance obligation was still the lessor***. And Miao Hongtao, the agent of the ***, made it clear when chatting on WeChat, let the **** report the fee, and seize the time to do it when it is appropriate. Explanation *** Is aware and recognized for the obligation to undertake the maintenance of the house by the party who should be responsible.
*** yuan was paid for the maintenance advance, as detailed below:
1, roof waterproof aging from the new waterproof yuan
2, due to the annual house leakage to the house floor ceiling kitchen restaurant caused by the loss of maintenance money for yuan, latex paint wallpaper painting yuan, front of the main cable aging circuit transformation of the yuan, the back of the main cable aging maintenance yuan, a total of yuan
3. The aging maintenance fee of the water supply pipeline is yuan, and the pressure testing and dredging fee is yuan. Totals Meta
The above totals *** yuan, and the above maintenance costs should be deducted from the rent.
In summary, the rent payable as at 28 February 2021 is:
(Rent from September 1, 2019 to August 31, 2020 Million Yuan + Rent from September 1, 2020 to February 28, 2021 Ten Thousand Yuan) - Epidemic Reduction of Three Months' Rent Million (Calculated According to Rent Not Rising) - Rent Paid Million Yuan - Rent Paid Million Yuan - Rent Paid Million Yuan - Rent Paid Million Yuan - Rent Paid Million Yuan - Rent Paid Million Yuan - Implemented Deduction of Rent Yuan - *** Maintenance Fees Paid *** Yuan = *** Yuan.
2. *** shall not bear liquidated damages
The outbreak of the new crown epidemic in 2019 is a force majeure, and the market economy has suffered a severe blow. If the circumstances change due to reasons that cannot be attributed to the parties, the basis for the previous contract signed by the two parties will be shaken, and it is unfair to continue to maintain the liquidated damages clause in the contract.
On March 19, 2020, the Preschool Education Professional Committee of the China Private Education Association issued the "Proposal on Giving the Private Kindergarten Industry a Reduction or Reduction of Rent and Fighting the Epidemic", imploring all owners and landlords to fully understand the difficulties of the industry and appropriately alleviate, reduce and waive the rent and management fees of private kindergartens and preschool education institutions that have difficulties in operating due to the delay in the opening of the school according to the development of the epidemic. On May 9, 2020, the National Development and Reform Commission, the Ministry of Housing and Urban-Rural Development, the Ministry of Finance, the Ministry of Commerce, the People's Bank of China, the State-owned Assets Supervision and Administration Commission, the State Administration of Taxation, and the State Administration for Market Regulation jointly issued the Guiding Opinions on Further Helping Small and Micro Enterprises and Individual Industrial and Commercial Households in the Service Industry to Alleviate Housing Rent Pressure in Response to the COVID-19 Epidemic, which encourages lessors to consider the actual difficulties of tenants, on the basis of equal consultation between the two sides. Reduce or postpone the collection of rent. In judicial practice, considering the severe blow that the new crown epidemic has brought to the market, the court will also take into account the epidemic factors to ease, reduce or waive part of the rent for the lessee.
According to the market situation in recent years, the operation of the majority of private kindergartens has encountered unprecedented difficulties. According to the actual situation, the reduction, relaxation and exemption of rent are in line with the legal provisions of the change of the situation and the legal principles of fairness and justice. And *** The delivered house fell into disrepair, *** repeatedly contacted *** and asked it to repair the house involved in the case, *** has not yet fulfilled the maintenance obligation, *** paid a lot of maintenance fees for this purpose, *** There is a breach of contract that refuses to repair. Therefore, according to the provisions of articles 525 to 528 of the Civil Code on the right of defence, the *** has the right to refuse to perform the obligation to repair the house and refuse to perform the obligation to pay rent. Therefore, the claim for liquidated damages should be dismissed.
In summary, *** should pay *** house rent is *** yuan (as of February 28, 2021), *** other litigation claims have no factual and legal basis, and should be rejected.
