Laws and regulations are known early, and litigation risks are prevented as early as possible. In order to implement the spirit of litigation source management and active justice, and prevent the occurrence of contradictions and disputes from the source, the "Dispute Prevention Early Knowledge" column came into being. By summarizing the types of disputes common in judicial practice, analyzing relevant laws and regulations and potential litigation risks, this column aims to provide practical legal advice for individuals and market entities, and effectively avoid the occurrence of litigation burden. This column adopts the intuitive and vivid form of short video to present complex legal knowledge to the audience in simple terms, aiming to promote the process of rule of law construction, continue to optimize the business environment, and promote the vitality of market entities.
The sustainable, healthy and orderly development of the shop rental market is of great significance for stimulating the vitality of the market economy and creating a good business environment. When the court heard the shop lease case, it found a type of situation: when the lessee was unable to operate, both parties to the lease adopted a negative approach, the lessee fled the shop and flew away, and the lessor let it go and wait for the contract to expire. Such a way of dealing with it is very easy to lead to the loss of both sides, the aggravation of conflicts, and then the trigger of litigation. The lessor's erroneous expectation of rent during the contract period was not supported by the judgment, and the huge vacancy loss of the shop was suffocating.
In this issue, we will talk about when and how the lessor needs to perform the derogation obligation when facing the escape from the shop from the perspective of "the non-breaching party's derogation obligation", hoping to prevent the expansion of the conflict between the leasing party and help the commercial entity stimulate market vitality.
According to Article 591 of the Civil Code, after one of the parties breaches the contract, the other party shall take appropriate measures to prevent the expansion of losses; Where failure to take appropriate measures results in an increase in losses, compensation for the increased losses shall not be claimed. Specifically, in a housing lease relationship, when the lessee breaches the contract, is unable to pay the rent due to poor management and no longer actually occupies and uses the house, although the contract has not expired and the lessee is the breaching party and has no right to terminate the contract, the lessor, as the non-breaching party, should also take active action to urge the tenant to move out of the remaining items and take back the house in a reasonable time to prevent or reduce the increased losses, otherwise the lessee has no right to bear the increased losses.
The principle of derogation is the proper meaning of the principle of good faith in the field of civil law under the lease contract relationship. The principle of derogation encourages the lessor to take active measures to reduce possible losses after the lessee breaches the contract, which can not only safeguard the interests of both parties, but also help to achieve the rational allocation and efficient utilization of social resources, protect the sustainable and stable development of commercial entities, maintain the vitality of the leasing market, and promote a good business environment.
01
The lessor refuses to take possession of the house on the grounds that the lessee has left decorations and items in the leased premises
After the lessee moves out, the lessor clearly knows that the lessee no longer uses the house, and there are only fixed decorations and a small number of movable items left in the house, and the contract or termination letter between the two parties clearly stipulates the disposal of such property, if the lessee does not move out in time after the termination, the lessor has the right to dispose of the leftover items on its behalf, but the lessor still states that it does not take back the house on its own in order to avoid other disputes caused by the unauthorized disposal of the lessee's property.
02
The landlord refuses to take possession of the property in anticipation of the high occupancy fee
In some lease contracts, the occupancy fee for the house is much higher than the rent standard, and the lessor refuses to take back the house to have more room for profit, so the lessor adopts a laissez-faire attitude towards the repossession, resulting in the house being vacant for a long time.
03
After the lessee breaches the contract and abandons the lease, the lessor insists on performing the contract
If the lessee clearly expresses its intention not to perform the contract by actual behavior, and the contract has in fact been terminated and has not been re-performed, the lessor still insists that the contract between the two parties has not been terminated and requests to continue to perform and refuses to take possession of the property.
01
Expand the vacancy at your own expense
When the lessee breaches the contract and the contract is terminated, the lessor shall take appropriate measures to reduce the losses when it is aware that the lessee has moved out of the premises, and if it fails to perform this obligation, the resulting loss of vacancy period shall usually be borne by the lessor.
02
The expectation of high occupancy fee benefits has been disappointed
Even if some lease contracts expressly stipulate that if the lessee breaches the contract, it shall bear the occupancy fee much higher than the rent standard, if the lessor fails to perform the obligation of derogation in a timely manner, the court can re-determine the standard of the occupancy fee according to the actual circumstances of the case, and no longer support the reasonable recovery of the occupancy fee beyond the period of the house.
03
The contract is terminated because performance is not enforceable
If the lessee insists on performing the contract, judicial practice tends to rule that the contract has in fact been terminated, but this does not affect the lessor's right to pursue the lessee's liability for breach of contract, and the court will determine the derogation obligation from multiple perspectives such as necessity, reasonableness and feasibility.
01
Actively communicate and negotiate with the tenant
In the event of a breach of contract by the lessee, the lessor shall take the initiative to contact the lessee in a timely manner to understand the reasons and specific circumstances of the lessee's breach of contract, and try to seek a reasonable solution through communication and negotiation between the two parties. In the course of communication, if the tenant clearly informs the lessor that the tenant has moved out of the premises, the lessor shall take measures to repossess the premises as soon as possible. If the tenant is found to have belongings left in the house, he should also actively contact the tenant and urge him to move out in time.
02
Keep an eye on the dynamics of the house
In the event that the lessee has defaulted on rent arrears and other breaches, the lessor should keep a dynamic eye on the condition of the rental property, even if it is unable to contact the tenant to understand the housing situation. If it is found that the tenant has moved out and the house is vacant, it is necessary to take appropriate measures to repossess the property in a timely manner within a reasonable period of time, so as to rent the house again as soon as possible and reduce the loss caused by the vacancy.
03
The derogation measures are reasonable and lawful
The lessor shall pay attention to the reasonableness and legality of the measures taken in order to restore control of the premises as soon as possible and minimize its own losses by taking comprehensive consideration of the reasonableness and legality of the measures and taking into account the actual situation and specific circumstances. If the lessor incurs reasonable expenses to prevent the loss from expanding, then such part of the expenses can also be claimed from the breaching party.
1. If the lessor is caught up in a lawsuit over a housing lease contract dispute, if the relevant impairment obligations have been fulfilled, it is recommended to prepare relevant evidence in a timely manner, including the communication with the tenant and the actual receipt of the house, so as to prove that the lessor has fulfilled the reasonable impairment obligation. If the obligation of derogation has not been fulfilled before the litigation, after the judge's explanation in the litigation, the tenant should also contact the tenant in time to go through the procedures for handing over the house or take measures to recover the house on its own to avoid further expansion of losses.
2. If the tenant really needs to quit the lease and move out of the house in advance during the lease period, he should take the initiative to seek communication and negotiation with the lessor to solve the problem, and inform the lessor of the vacancy situation in a timely manner, so that the lessor can take measures to recover the house and reduce the losses of both parties.