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Delivery of premises to the tenant

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The topic may seem trivial and uncomplicated, though in reality it often raises doubts and arguments, especially because it affects important, business aspects of the lease.

The Civil Code says very little about the issue. In accordance with Art. 662 § 1 of the Civil Code, the landlord should hand over the thing to the tenant in a condition fit for the agreed use. It means that the premises should be ready for the business which the tenant plans to run there (e.g. office or trade), although such an expression isn’t precise and both parties may have a different view on the condition which allows for running such a business. Because of that, in the commercial lease agreements both parties specify not only whether the place is shell & core or after fit-out but they also indicate the detailed specification and a plan of the premises. Then the premises in precisely such state are to be handed over to the tenant.

 

The lease agreement should regulate all the issues referring to the possible defects of the premises. Landlords should thus protect themselves against unjustified refusal to accept the premises by the tenant due to a slight defect, and for the tenant the date of removal of the diagnosed defects is crucial. Because of that, the lease agreements usually distinguish between significant and insignificant defects, defines the dates of their repair and indicates that the tenant may refuse to accept the premises only in case of some significant defects. If the agreement doesn’t include the indicated aspects, the tenants try to seek refuge in the implied warranty for defects. It is a mistake, because the implied warranty refers to e.g. sales or delivery of the work, and in leasing the compliance of the condition of the premises with the agreement is decisive.

 

Quite often the parties agree that if the tenant fails to appear at the delivery of the premises, the landlord will draw up an ex-party protocol of premises delivery. Is it effective? The answer has a lot to do with the nature of the protocol as a document. It is suppose to document the fact of handing over the premises and its condition at that time. A protocol is therefore a confirmation of facts and the person, who draws it, confirms the information in it. Lack of the other party’s signature means that he/she hasn’t confirmed the facts included in the protocol, what may cause some evidenciary problems.

 

In terms of an ex-party protocol one more aspect is worth considering – the starting point of calculating the rent. This is in fact the most important for the landlord, not the protocol itself, but the moment since when the rent may be charged. Therefore, the protocol shouldn’t confirm the delivery of the premises (as it actually didn’t happen), it should indicate that the premises were ready to delivery, but the tenant wasn’t there to accept it. Such regulation ought to be well ‘coupled’ with the provisions regarding the rent, so that the landlord won’t lose on the rent. The tenant, on the other hand, ought to make sure that he/she will pay the rent after the actual acceptation of the premises.

 

The abovementioned issues referring to the delivery of the premises might be summed up with a conclusion that only a complete and precise regulation of these matters in the lease agreement allows the parties to eliminate the risk of the disagreements connected with the delivery of the premises, their condition, flaws or the starting point of charging rent.


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