Obligations of parties to the lease agreement in the area of its renovations, part II


For which defects a tenant is responsible? Which legal measures remain at the disposal of a tenant in order to enforce the repair?

In the previous part of the article [click here to see] obligations of a tenant, which follow from faults of a rented local, have been described. In this part, we are going to focus on defects which are defined by the Act as faults and which burden a lessor with repair, providing certain statutory instruments for a tenant, the purpose of which is to enforce effectively these obligations.


Parties, negotiating the contractual relation of a commercial local lease, are not absolutely bound by statutory regulations for its repairs and may arrange these issues at their discretion, specifying not only the case catalogue which updates obligations of the first or the second party, but also the law consequences in form of claims or legal and forming rights in case of their inadequate execution. However, if it did not happen and a tenant discovered a local’s defect, firstly he is obliged to qualify its repair correctly to a group of lessor’s or tenant’s responsibilities and then, alternatively, apply properly the statutory module of asserting their rights.


Decoding the rule of an expected lessor behaviour from the contents of Article 662 § 1, 2 and 3 of the Civil Code, it should be concluded that his obligation of maintaining the local in an useful condition to a discussed purpose do not include repairs, the undertaking of which is necessary because of culpable activities of a tenant, that is those which constitute minor expenses or those which do not prevent or limit the usefulness of a local to a discussed purpose (about the significance of a precise contractual designation of a minor expense catalogue as well as the demands enacting the usefulness of a local to a discussed purpose I wrote in the previous part). Therefore, only such defects will be recognized as local’s faults and the omission of their repair may result in concrete pecuniary claims and even the law of a tenant to terminate the contract of a lease without keeping the periods of notice.


When a tenant actually qualified the limitation of local’s functionality as a defect, he is obliged, according to Article 666 § 2 and 663 of the Civil Code, to inform immediately a lessor about it and assign him a proper term to perform repairs. It is worth to mention that in case of negligence of a duty to inform or perform it with delay, a tenant is liable to a lessor for the damage resulting from it.


Since the assigned term has passed unsuccessfully and in light of principles of both community life and established customs it was appropriate to perform the repair (a reasonable term is a time rationally needed to perform the repair in consideration of the nature of goods, defect seize and required way of its repair), a tenant, according to Article 663 of the Civil Code, acquires a right to a substitute execution of the repair at the expense of a lessor without the need to apply to the court in the matter of an adequate empowerment. Then he will be eligible to deduct such arisen amount with a due liability of a lessor within rent payments. However, such rights will occur in favour of a tenant only in case of considering the repair as necessary, so as the repair without which a local is not in a condition to a discussed useage at all (for instance office use). Failure – in order to be considered as forbidding the useage of a lease object should deflate its economic sense in such a way that the performance of a lease agreement is physically impossible or irrational from the perspective of an economic aim, for which it has been concluded. Additionally, a tenant will be able to terminate a lease without meeting lease deadlines if he did not know about those failures at the moment of signing a contract.


This negative condition which makes invalid a tenant right to terminate a lease without meeting deadlines, would not be applied if the defects will be as important to endanger the health of a tenant or people hired by him. As examples of faults which endanger the health, quite commonly are enumerated those which make a real danger to health, so as mildew, possibility of a building or its parts collapse and excessive noise. In such case, it does not matter if a failure occurred at the moment of concluding an agreement or it occurred later and if it is removable. This empowerment does not include simultaneously envisaged in Article 664 § 1 of the Civil Code tenant’s right to demand decreasing of the rent for a term of these defects. Such demand of a tenant will be justifiable in every case, when a failure limits in some way the property, to which the Code most often refer a tenant in case of statutory rights identification, that is a discussed things purpose. In this case, a legislator placated the strictness which updates the claims of a tenant, stating that each case of a decreasing local’s useage disrupts the equivalency of benefits of the parties to the agreement, which is supposed to be restored by claim envisioned in Article 664 § 1 of the Civil Code. Certainly, it cannot be assumed that the equivalency was violated if a tenant knew about the defect existence and range at the moment of concluding the agreement. In such case, principles of community life rationally order to find that parties calculated this fact at setting rents. The claim for decreasing rent in an appropriate relationship to duration of a defect and reduction of things useage because of it, performs a role of a peculiar compensation substitute. However, it is worth to remember that the responsibility of a tenant from a warrant for local’s defects does not exclude, but complete his liability for a damage on general principles. Therefore, in each case, when the exhaustion of claims envisioned in Articles 663, 664 and 682 of the Civil Code does not cover the real damage, which occurred in a tenant’s estate because of the existence of a failure, for instance, in a result of destroying things of a tenant which were brought to a room, he may claim the repair of a damage occurred in this way.


As it was shown in the series of articles concerning this subject, the issue of obligations of parties to the lease agreement in the area of its renovations is only apparently comprehensively regulated in the Act, and the lack of definitional concepts, which are used by the Civil Code, in practice may lead to many arguments in identification and even distribution of claims, which are entitled to both sides in case of certain limited functionality of a local. It may lead, in turn, to escalation of claims which are actually entitled to one or the other side of the contract. Due to the above stated reasons, even residual addition of statutory regulation through completing its concepts by concrete contents, may become an operation which will be a guarantee of its proper useage by both sides during the effective term of the agreement.

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