One use, two payments: The unsustainability of charging rent and a fee for the use of public space simultaneously

Posted by: 7. 10. 2025
Update: 8/10/2025

The issue of charging for the use of public space has been a constant in the Czech legal environment for a long time, but in some specific situations it raises controversial interpretative conclusions. One such case is the situation where the user of a public space pays rent to the municipality on the basis of a private law relationship, and yet is still obliged to pay a local fee for its special use under Act No. 565/1990 Coll., on local fees. The aim of this article is to present the current legal regulation and established case law in this area, point out its weaknesses and offer possible directions for solutions that would better comply with the principles of legal certainty and justice.

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The concept of public space within the meaning of Section 34 Act No. 128/2000 Coll., on municipalities and its perception has become considerably stable in the current Czech legal reality and it is constantly being worked on across various public law regulations, as well as related case law, particularly of administrative courts.

Nevertheless, certain controversies can be found in its concept, or rather in the concept of its use, which contradict the legal certainty of the addressees of legal norms. It is in particular the issue of separate assessment of the payment for the use of public space, as for any fee according to Act No. 565/1990 Coll., on local fees, and for use of public space based on private law title.

Established case law establishes the approach that any charging for public space introduces a public law obligation that is independent of the possible existence of a private law title (especially the lease agreement), on the basis of which the user of this public space is obliged to pay rent in a certain amount according to the lease agreement. The current approach is rigidly formalistic in our opinion and overlooks the level of economic reality, when one entity (the municipality as the owner and as a public corporation) collects two payments for the use of one identical piece of land. As a result this approach there is no legal justice or rational regulation, Of systemic inequality, which needs to be critically evaluated.

The legal status of a tenant in public law in current case law

The approach of administrative courts

The case law of administrative courts takes a clear and long-standing view on the issue of the coexistence of a lease relationship and a public law fee obligation for the use of public space. According to this interpretation the lease agreement does not exempt the tenant from the obligation to pay the local fee for special use of public space pursuant to Section 4 of Act No. 565/1990 Coll., on local fees, in the event that the municipality introduces a fee for this special use by a generally binding decree. In other words, the public obligation is assessed completely separate from the private law title, regardless of the fact that it is
for the same space and the same user.

This approach was explicitly adopted at the level of the Supreme Administrative Court in the judgment of the Supreme Administrative Court of 16 July 2009, ref. no. 9 Afs 86/2008–89 (also published under No. 1934/2009 Coll. of the Supreme Administrative Court), and subsequently confirmed in other decisions of the Supreme Administrative Court (e.g. 1 Afs 47/2020–37).

The Constitutional Court's approach

These conclusions of the Supreme Administrative Court also stood up to the Constitutional Court, which confirmed them in its resolution of March 3, 2011, file no. II. ÚS 3364/10The Constitutional Court considered this approach to be constitutionally compliant, referring to its earlier Constitutional Court ruling. Pl.ÚS 21/02 of 22 March 2005, which dealt with the abstract review of the constitutionality of the concept of "public space" in relation to the possible charging of the owner for the use of public space under the Local Fees Act.

In this resolution, the Constitutional Court confirmed that the opinion expressed in its previous ruling that only the owner (and not always) can be exempt from paying the local fee is correct and constitutionally compliant. This exemption does not apply to tenants. and he cannot claim this exemption by arguing that he is already paying rent for this land.

Impact of decision-making practice on tenants

It follows from these case law that the tenant is not perceived as a "full" user at the level of public law, even though the lease agreement limits the owner's position in the use of the land to the benefit of the tenant, who may use the land. The lease agreement is therefore relevant only for the relationship with the land owner at the level of private law, but not legally relevant for assessing the public law impacts of using public space, even if rent is already being paid for the same thing.

The result is a de facto situation where one and the same user – tenant of public space – pays for its use twice, even though the recipient of both the rent and the fee for the use of public space is one entity, namely the municipality, which is both in the position of the owner and a public corporation.

Is the current practice fair?

In view of the above, we are in a position to take a critical view of whether the given approach to the issue of rent and local fees (despite the constitutional review carried out) is fair and whether it is not just a consequence of unnecessary formalism, which, while correctly considering the nature of these obligations with regard to their public or private nature, does not at the same time oversee the possible consequences that this formalism causes in practice.

Model situation

The illogicality of the above approach and its possible extreme consequences can be shown in a model situation, when the tenant enters into a lease agreement regarding public space with the municipality as the landlord (and also the owner), in which sets reasonable rentAfter concluding the lease agreement, the municipality decides (this time from the position of a public corporation) to introduce a local fee for the use of public space, which it will charge the tenant along with the rent.

It is of course true, and the authors are aware of this, that both obligations, in accordance with the doctrine of legal dualism, fall under a different regime of legal obligations, but on the other hand, the question is whether in a given case this decision-making practice of the courts is in accordance with the considerations of justice, which should undoubtedly be applied in their decision-making.

Good manners

At least in the above-mentioned case, the question for us is whether the possible conclusion of a lease agreement
and the subsequent introduction of a fee obligation by the municipality will be considered, at the level of private law, as an act at least contrary to good morals, on the basis of which it will be possible to demand compensation from the municipality for intentional violation of good morals pursuant to Section 2909 of the Civil Code.

It is true that in the case of the introduction of a fee obligation, the municipality is in the role of a public corporation, which, according to the authors, does not relieve it of its obligations arising from private law, including the obligation to guarantee the tenant uninterrupted use of the leased property for the duration of the lease (Section 2205, letter c) of the Civil Code), which it can undoubtedly interfere with by introducing this fee obligation, because the introduction of this fee is an additional financial cost for the tenant, who pays it to the same entity.

Another possible question is whether the introduction of this fee obligation can be considered a particularly serious breach of obligations that caused the tenant significant harm, on the basis of which the tenant would have the right to terminate the lease without notice.

The need to conclude a lease agreement

In connection with the above This is also the general debate on whether it is necessary for tenants to conclude lease agreements regarding public space if the tenant can achieve similar use by paying a fee for the use of public space (if one is introduced). In other words: does it make economic and legal sense to conclude a lease agreement if the space can be used without it, albeit with restrictions resulting from public law regulations?

Aspect of actual payment of the special use fee

This approach can be critically evaluated further from the point of view of whether in a situation where the municipality as the owner concludes a lease agreement with the tenant, the lease agreement itself cannot be considered to fulfill the purpose of "payment" for special use within the meaning of the Local Fees Act (even in the awareness of legal dualism). By concluding a lease agreement, the ownership right of the municipality (but also of third parties) to the land is effectively limited and the use rights to the land are "transferred" to the tenant, for an agreed fee. In such a case, it can be rightfully argued that the collection of an additional local fee constitutes duplicate financial burden for the same object of use.

Possible solutions

The approach described above is contrary to factual reality, as one and the same person is forced to pay twice for the use of the same land. This situation is the result of a formalistic approach that does not correspond to the true nature of legal relations.

The elimination of this contradiction cannot be realistically expected in the decision-making practice of courts, given the long-term constancy of case law. A more effective solution would be an amendment to the law
about local feesThe most appropriate legislative intervention would be to explicitly include the tenant
and ultimately the owner into the circle of persons exempt from paying the fee for the use of public space.

In the current legal situation, the potential exemption of a tenant depends solely on the will of the municipality, which may (but may not) include him in the circle of exempt persons in its generally binding decree introducing a fee for special use of public space.

záver

The simultaneous application of a rental fee and a local fee for the use of the same public space to the same person represents a legal situation that, although established by case law and found to be constitutionally compliant, can nevertheless be considered problematic because it does not sufficiently reflect the real impact on the form of legal relationships.

To maintain legal certainty and fair relations between municipalities and users of public spaces (tenants), the above-mentioned change in legislationAn explicit statutory exemption of tenants from the fee for special use of public space would eliminate the current disproportion and thus prevent disputes based on a formal interpretation of the law that does not reflect the actual content of legal relationships.

Source: Epravo.cz

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