Opinions

What if the rented property is now in occupation?

Oleksandr Borodkin Partner Vasyl Kisil and partners many leases have now found themselves in the occupied territories. Some of them can be used, access to others is completely lost. And landlords may require rent. Co -author: Ivanna Rodionova, lawyer YUF Vasily Kisil and partners What does the law say? The tenants may come to the rescue of Article 762 (1) of the Civil Code of Ukraine (CCU).

It releases the tenant from the rent for the whole time during which he could not use the leased property due to the circumstances for which he was not responsible. Video day such dismissal can be applied to the rent of any property: buildings, warehouses, land, cars, agricultural machinery, any equipment, etc. This provision is a unique case that exempts the parties to the contract from the obligation contrary to the principle of civil law "obligation must be fulfilled".

For example, Article 617 of the CCU on the circumstances of force majeure or as everyone is accustomed to call them-force majeure, does not release the person from monetary or any other duties, but only releases from liability for violation of the obligation. The force majeure may postpone the term of fulfillment of a force for force majeure, but not release from duties. However, the force majeure may be among the list of circumstances for which the person is not responsible.

Conditions for exemption from rent for exemption from rent, simultaneous fulfillment of two conditions. The first is the objective inability to use the property, and the second - such inability to use should be caused by circumstances for which the tenant is not responsible. The inability to use the property is an objective inability to use the leased property is the lack of access to the property, the inability to stay indoors or store things in it, etc.

The Code does not define the criteria for determining "impossibility", so it will be necessary to prove the impossibility of using in each case, guided by the available jurisprudence and the general principles of logic. In this case, the burden of proof rests with the tenant. It is also important that the tenant does not really use the leased object.

The circumstances for which the tenant is not responsible for the Code also does not provide a list or explanation regarding the definition of "circumstances for which the tenant is not responsible". Judicial practice proceeds from the fact that it is any circumstances that exist outside of the tenant's will. For example, any force majeure or communal accidents, power outage, water supply or heat supply in the rented premises, breakdown, property damage, unlawful withdrawal or occupation .

In today's realities, such circumstances can be: combat or hostilities, shelling, hostile attacks, invasion, blockade, acts of terrorism, diversions, riots, mass riots, forced seizure of property, seizure of enterprises, unlawful actions where the leased property is located, decisions of local authorities or military administrations on compulsory evacuation of the population, destruction of property as a result of missile or artillery shelling, failure to provide the landlord with the protection of leased premises from marauders and criminals, duration of air alarm, such as in Luhansk region, etc.

The tenant will have to prove to the lessor, and if the case goes to court, then within the trial, that these circumstances are out of the will of the tenant. The evidence will depend on specific circumstances.

To confirm the fact that the tenant is not responsible for certain circumstances, the tenant may provide a universal or individual certificate of the Chamber of Commerce and Industry of Ukraine, confirming the occurrence of force majeure, an act from public utilities or emergency service, court decisions, by-law or law, which will be about the occurrence of circumstances that exist outside the will of the tenant.

The reason and consequence of the tenant will need to demonstrate a direct cause and effect relationship between the circumstances that are out of his will and the inability to use the leased property. After all, the existence of such circumstances in itself does not mean the automatic impossibility of using leased property and does not exempt from payment of rent, examples of situations are given below in the article.

Let's imagine some examples that the company rents cars for their employees who used them in the occupation cities. Provided that the rented cars could not be exported and remained in the occupied cities, and all employees of the company were evacuated and the company does not have access to the car at present, such a rental company may apply for release from rent.

But if the company rents, say, the warehouse and stores on it certain goods, the very fact of occupation of the city does not mean that the enterprise cannot use the warehouse. After all, the purpose of the warehouse is to preserve the property, and in this situation the warehouse will continue to perform the function of storage of property at least as long as the property of the enterprise is in this warehouse.

In this case, it is unlikely However, if the tenant removes the property from the warehouse, for example, because of the threat of its destruction as a result of hostilities, and as a consequence stops using the warehouse, the tenant may apply for release from rent. Therefore, the dismissal of a specific tenant depends on the actual circumstances of each individual situation.

The plan of action if the enterprise cannot use the leased property through the war or its consequences and wants the landlord to stop charging the rent, first of all it is necessary to prepare and send the landlord to the landlord.

In such a letter, it is important to substantiate and consistently state all the circumstances, demonstrate the connection between the circumstances that are outside the will of the tenant, and the inability to use the lease, and be sure to note that the company does not really use the leased object. In the letter, it is also advisable to indicate the day from which the company has lost the ability to use the property, although in some situations it is difficult to determine a specific date.

The position stated in the letter is important to support the evidence. As a proof in the example described above, it would be appropriate to provide a photo of the car odometer to confirm that the car is not actually used, transfer the keys and documents to the landlord's car, etc. With regard to the second example, the acts of acceptance and transfer of goods to another warehouse, written explanations of employees, photos of empty warehouse, etc.

can be provided to confirm the use of the composition. What is in the contract? One should not forget about the provisions of the lease, for which the enterprise plans to receive exemption from rent. After all, the lease agreement may provide the consequences and procedure of the parties of the contract in the event of circumstances for which the tenant is not responsible, the loss of access to the leased property, etc.