Recently, a news was exposed on the Internet, because the intermediary ran away, a landlord went to the door to forcibly change the lock to drive people, and also cut off water and electricity, and moved household appliances away. It is understood that the two sides have negotiated several times, and the tenant has proposed to bear half of the loss, but in the end, due to some detailed issues, it has not been discussed. Unable to withstand the landlord's harassment, the tenant sued the landlord in court.
In cities with frequent population flows, whether living or working, the legal issues related to housing leasing are probably experienced by many people, and this edition invites four judges of the Changping Court to interpret the things of leasing and leasing for you from different types of actual cases.
Case 1
Rental agent runs away, how to stop the loss in time?
From June to August 2018, a housing intermediary company signed a lease contract with the landlord and tenants to earn the difference by subletting the owner's house and subletting it out. The contract separately stipulates that the intermediary collects the tenant's rent on an annual basis and pays the rent to the landlord on a monthly basis. Since August 2019, intermediaries have defaulted on rent to landlords. In October 2019, the intermediary ran away, and the office location went to the empty building, and it was impossible to get in touch with him by phone or WeChat.
Unable to collect rent from the intermediary on time, the landlord negotiates with the tenant to reclaim the house from the tenant. However, the tenant had already paid the rent in advance to the intermediary, so the tenants sued the court, demanding that the intermediary company return the rent received in advance and bear the liability for breach of contract. Some tenants refused to return the house, and the landlord had to sue the court, demanding that the intermediary company return the house, pay the rent owed, and hold it liable for breach of contract.
After the case was accepted, because the whereabouts of the intermediary company were unknown, according to the relevant provisions of the Civil Procedure Law, the court served it through an announcement and held a hearing. After trial, the court ordered the defendant intermediary company to pay the rent that was not paid or received in advance, and to pay liquidated damages as agreed in the contract.
Judges interpret the law
Unlike landlords, who rent out their homes directly to tenants, intermediary services specializing in subletting houses are now on the market. In order to avoid cumbersome matters such as finding tenants and changing tenants, the landlord rents the house to the intermediary company according to a certain rent standard, and the intermediary company rents it out as the second landlord. Under this model, two separate lease contract relationships are formed, one is the lease contract relationship between the landlord and the intermediary, and the other is the lease contract relationship between the intermediary and the tenant. There is no direct legal relationship between the landlord and the tenant, the tenant's rent is not directly delivered to the landlord, the intermediary company plays a very important role in the middle, if there is a situation of running away and missing contact, the landlord and the tenant will face damage to their rights and interests.
In this regard, the judge made the following reminders to landlords and tenants:
The first is to carefully choose intermediary companies. When choosing an intermediary, an intermediary with a long operating time and a good reputation should be preferred. Before signing the contract, the parties can inquire about the intermediary's industrial and commercial registration information and whether there are relevant judgment documents through the Internet, and try not to sign a contract with an intermediary that has shown "revocation", "cancellation", "abnormal information" or a high incidence of litigation concentration in the near future, so as to avoid the situation where the intermediary runs away due to poor management.
The second is to focus on reviewing core provisions. In the dispute over the housing lease contract, the core clauses are "the start and end time of the lease period", "the rent standard and payment method", "whether to allow renovation" and "the default clause". Among them, the most easily overlooked is the default clause. In this case, the lease contract between the intermediary company and the landlord stipulated that in the case of the intermediary company defaulting on the rent, the landlord needed to pay the intermediary company, and if the intermediary company still failed to pay the rent 15 days after the reminder, the landlord had the right to rescind the contract. In the case of an intermediary company whose whereabouts are unknown, the reminder notice cannot be served, and the landlord's right to terminate the contract in accordance with this clause is greatly restricted, or even unrealized, and the contract can only be terminated through litigation. Here, it is recommended to refine the terms of contract rescission and termination, and the landlord has the right to unilaterally terminate the contract and reclaim the house in case of breach of contract.
The third is to pay attention to the operation of intermediary companies. In this case, some landlords, after discovering that the intermediary was in arrears, exercised the right to rescind the contract and promptly recovered the house. However, some landlords only notice the lack of rent after the disputes have occurred in large quantities, and the losses have been expanded. As a tenant, it should be noted that in the case of finding that the contract between the intermediary and the landlord may be terminated and the house is recovered, it should be carefully verified that the lease contract can continue to be performed, and the rent should be paid cautiously.
The fourth is to agree on a valid delivery address. According to the law, the service period for domestic announcements is 60 days, and the period for presenting evidence in accordance with ordinary procedures is 30 days. In order to avoid long time costs, the parties may stipulate the address of service of litigation in the contract when signing the contract. According to the Supreme People's Court's Several Opinions on Further Strengthening civil service work, if a party refuses to confirm the address of service or evades or circumvents service, if the parties have a clear agreement on the address of service in the contract or correspondence involved in the litigation, the court may use the agreed address as the address for service. Under such circumstances, the litigation time may be shortened and the legitimate rights and interests realized as soon as possible.
Text/ Assistant Judge of the First Civil Division of the Changping District People's Court, Beijing Suo Yan
Case 2
The landlord modifies the partition without authorization, and the tenant has the right to terminate the contract
In January 2019, Xiao Tang and Mr. Li signed a "Lease Contract", stipulating that Mr. Li would rent out the master bedroom of a house in a residential area in Changping District to Xiao Tang for a lease period of 1 year, the rent was 2400 yuan per month, and the payment method was quarterly. When the contract was signed, the house was three bedrooms and one living room, with no partitions. However, shortly after Xiao Tang moved in, Mr. Li built a partition in the living room without authorization and divided the living room into two small rooms. So Xiao Tang sued the court, demanding that the lease contract be terminated, and Mr. Li refunded the deposit and the remaining rent totaling 8,000 yuan.
After trial, the court held that the rescission of a contract concluded in accordance with law is divided into agreed rescission and statutory rescission. The signing of the Lease Contract between Xiao Tang and Mr. Li means that the two parties confirm the use status of the house at that time, and although Xiao Tang is renting the master bedroom, he should also enjoy the right to use the common areas of the house, including the living room. Mr. Li cut off the living room and has changed the conditions of the house agreed in the contract. Therefore, Mr. Li's act of cutting off the public area of the house without authorization violated the contract, and Xiao Tang enjoyed the unilateral right of rescission according to Article 9 of the Lease Contract.
After the termination of the contract, if it has not yet been performed, the performance shall be terminated; if it has been performed, according to the performance and the nature of the contract, the parties may request restitution, take other remedial measures, and have the right to claim compensation for losses. Since the "Lease Contract" has been terminated, Xiao Tang should return the house, and Mr. Li should refund Xiao Tang's deposit and the remaining rent. Therefore, the court ruled that the parties terminated the lease contract, and Mr. Li refunded Xiao Tang's rent of 5600 yuan and a deposit of 2400 yuan.
With the standardization of the management of the housing rental market, cleaning up illegal group rents has been understood and supported by the masses. After encountering "being cut off", more and more tenants have the courage to say no to group rents and protect their rights and interests through legal channels. In this case, after renting a house, the lessor cut off the public area of the house without authorization, creating conditions for group rent, and violating the tenant's right to use the public area of the house. In such cases, if the lessor claims to terminate the lease contract, the legal basis is the "agreed rescission" provided for in Article 93 of the Contract Law and the "statutory rescission" provided for in Article 94 of the Contract Law.
Agreed rescission is the unilateral right of rescission agreed upon in the lease contract, and once the rescission conditions are fulfilled, the obligee enjoys the unilateral right of rescission and can claim rescission of the contract from the other party, and the legal consequences of rescission will arise from the time the notice of rescission is delivered to the other party. In this case, Mr. Li changed the conditions of use of the leased house without authorization, resulting in the house he delivered did not conform to the contract, and Xiao Tang exercised the right to rescind the contract accordingly and safeguarded his rights.
Statutory rescission is the right of rescission enjoyed by the parties in accordance with the provisions of the law. Article 94 of China's Contract Law stipulates five situations: (1) the purpose of the contract cannot be achieved due to force majeure; (2) before the expiration of the performance period, one of the parties expressly expresses or indicates that it has not performed the main debt by its own behavior; (3) one of the parties has delayed the performance of the main debt and has not performed within a reasonable period of time after being reminded; (4) one of the parties has delayed the performance of the debt or has other breaches of contract, resulting in the inability to achieve the purpose of the contract; (5) other circumstances prescribed by law. In this case, even if the lease contract did not stipulate the lessee's right of rescission, the law could be invoked to rescind the contract. In the housing lease contract, the main obligation of the lessor is to provide the lessee with a house that meets the agreement, and if the lessor cuts off the public area without authorization and changes the conditions for the use of the house, it shall be regarded as failure to perform the main obligation. If, after being reminded by the lessee, it is still not corrected within a reasonable period of time, or it is actually impossible to live and use, so that the purpose of the contract cannot be realized, the lessee may claim to rescind the contract.
Text/Zhou Zhonghui, assistant judge of Xiaotangshan Court of Changping District People's Court, Beijing
Case 3
If the registered address is not moved out in time after the house is surrendered, the company shall be responsible
Zhang mou has a 60-square-meter commercial house under his name, and the registration purpose on the real estate deed is office. Li is the legal representative of a newly established technology company, and due to the small business scale in the early stage of establishment, he rented the house for a lease period of 1 year and a monthly rent of 3,000 yuan. After renting the house, with the cooperation of Zhang, Li moved the registered address of the technology company to the address of the house and registered the change of industry and commerce. However, before the expiry of the lease period, the parties did not reach an agreement on the renewal of the lease. When handling the procedures for returning the lease and handing over the lease, there was a dispute over the deposit, utility bills and other issues, and it was difficult to reach mediation under the coordination of the third party, but neither party mentioned the relocation of the registered address.
A year later, the technology company moved its registered address out of the house involved in the case, but Zhang sued the technology company to the court, saying that the company occupied the place of residence of its house address as registered for industry and commerce, resulting in Zhang being unable to rent another house, so the company was required to pay more than 40,000 yuan in royalties according to the rent standard. The legal representative Li Mou said that because Zhang withheld his business license at the time of handover, due to the procedures of reporting loss and reporting, the registered address could not be changed in time, and after the expiration of the lease period, the technology company did not actually occupy the house, and the house rental had nothing to do with whether the company's registered address was moved out, so it did not agree to compensate.
After trial, the court held that the owner has the right to possess, use, benefit from and dispose of the house in accordance with the law. Based on the planned use of the house as an office, one of the important embodiments of Zhang's right to use the house is to apply for industrial and commercial registration. After the expiration of the housing lease contract, a technology company did not move its industrial and commercial registration address out of the house in time, which objectively affected Zhang's separate rental of housing and registration of other companies, so a technology company should bear the liability for compensation for Zhang's losses. The court comprehensively considered the time of change of industrial and commercial registration address, the reasons for the delay, etc., and finally ordered the technology company to compensate Zhang for 4,000 yuan.
For commercial housing registered for office purposes, in accordance with the relevant administrative regulations, the lessee can register the address of the leased house as the company address, so that the actual place of business and the place of registration are consistent.
However, after the contract expires, some lessees fail to move out of the company's registered address in a timely manner due to negligence or negligence in handling formalities; some lessees fail to reach an agreement with the lessor because of problems such as contract termination, rent, liquidated damages, etc., and refuse to move the registered address out of the house even if they actually move out of the house. To a certain extent, this situation will adversely affect the next tenant's use of the house for industrial and commercial registration, and will objectively cause obstacles to the continued rental of the house, so that the vacancy period of the house will be extended, the use value will be reduced, and so on.
Therefore, it is recommended that when signing a lease contract for office space, we should clearly stipulate the issue of moving in and out of the industrial and commercial registration address. Considering that it takes a reasonable time to handle the procedures for changing the registration, the two parties may agree to complete the relocation of the industrial and commercial registration address within a certain period of time after the expiration of the lease period, and agree on a deposit or a penalty for delay in moving out. In the absence of an express agreement, evidence can only be given on the actual loss. Here, we also call on the market supervision department to increase the supervision and management of various market entities, prevent the occurrence of inconsistencies between the actual place of business and the place of registration, and thus reduce the disputes caused by it.
Text: Judge Yin Haiping of the Changping District People's Court of Beijing Municipality
Case 4
The pet shop is damaged due to insufficient heating in the house, and the lessor bears the liability for breach of contract
Mr. Wang signed a "Housing Lease Contract" with a trading company, stipulating that the trading company would lease the house to Wang for the purpose of operating a pet shop. After the winter, due to insufficient heating in the house, many pets fell ill within 10 days, resulting in difficulties in the operation of pet stores. Therefore, Mr. Wang filed a lawsuit to terminate the "Housing Lease Contract" signed with the trading company, and demanded that it return the rent and security deposit of more than 170,000 yuan, and compensate for more than 90,000 yuan for renovation losses.
The trading company said that the lack of heating in the house involved in the case was caused by the boiler renovation, but it also did not charge Mr. Wang's heating fee, and Mr. Wang himself installed air conditioning in the store, which did not affect his operation.
After trial, the court held that the contract between the two parties stipulated that "the purpose of the lease is to operate a pet store." If the delivered house does not conform to the contract or affects the use of Party B, Party B has the right to unilaterally terminate the contract." The trading company failed to fulfill the corresponding heating obligations, violated the contract, and affected Mr. Wang's actual operation, so Mr. Wang enjoyed the unilateral right of rescission stipulated in the contract. The failure of the house involved in the heating season to be properly heated will indeed affect the operating income to a certain extent, and even if Mr. Wang uses other facilities to replace heating, it will increase the operating costs, so the court found that the trading company should appropriately refund the rent of the house during the period. In addition, since the loss in this case was mainly caused by the breach of contract of the trading company, the trading company should compensate Mr. Wang for the loss of the residual value of the decoration and decoration during the remaining lease period. In summary, the court ruled to terminate the "Housing Lease Contract" signed by the two parties, and the trading company returned Mr. Wang's house rent of 20,000 yuan and paid more than 50,000 yuan for decoration losses.
Housing lease refers to the legal relationship in which the owner or operator of the house can transfer the usufruct rights such as possession, use and income of the house to the lessee within a certain period of time, and the lessee pays the corresponding lease fee. As the urban economy continues to develop, the needs of population mobility and commercial development make housing rental play an increasingly important social role.
China's Contract Law and the upcoming Civil Code are very rich in relevant provisions on housing leasing, and their content involves almost all aspects of the leasing process. Combined with the facts of this case and the actual situation that the current rental market is more inclined to the lessee, from the perspective of the lessee, the process of leasing the target housing can focus on the following points:
The first is the ownership of housing. As a tenant, when intending to rent a house, you should first understand the ownership of the house. Specifically, on the one hand, it is necessary to understand whether the house is a regular building with legal property rights, otherwise according to relevant regulations, the lease of illegally built and unpropriated houses may be found to be invalid, and its rights protection is far lower than that of the normal lease relationship. On the other hand, to find out whether the lessor is the owner of the house, if the lessor is not the owner of the target house, it may require the subleaser to issue an original lease contract to prove the remaining lease term based on the relevant provisions of article 224 of the Contract Law on the sublease of the house, and issue a statement of the property owner's consent to the sublease to ensure the proper performance of the subsequent sublease contract.
The second is the natural situation of the house. As a continuous performance behavior, the uncertainty of the performance process is high, and the actual needs of the tenant for residence and operation are different due to their own circumstances, so they should try to understand the natural situation of the house before renting the house to ensure the realization of the rental purpose. For example, when renting a business house similar to that in this case, you can learn from the surrounding merchants about the water supply, power supply, heating conditions of the house and other factors that may affect the commercial operation; when renting a house for living, you can focus on understanding whether there are water leaks, gas leaks, noise and other relevant circumstances that affect the living before the house.
The third is to leave traces in strict writing. The performance process of the lease contract is relatively long, and the changes in the objective situation of the house and the actual needs of both parties often lead to changes in the contract. Under normal circumstances, the change of the contract content that occurs through the independent agreement of the two parties to the lease is permitted and protected by law, but the form of the parties changing the content of the contract is often too arbitrary, and the common oral agreement has no legal significance in the event of a dispute, and the defaulting party may suffer losses as a result. Therefore, in the process of contract performance, if the two parties reach a new change agreement on the contract performance period, rent standard, decoration and other contents, the above content should be strictly implemented on paper to avoid unnecessary disputes and ensure the smooth performance of the contract.
Text/Yuan Man, assistant judge of the First Civil Division of the Changping District People's Court of Beijing