The new Civil Code is based on the principle of broad contractual freedom. One of the manifestations of this principle is the institute of assignment of the contract modified in the ustan. § 1895 an. disciple. No. 89/2012 Coll., Civil Code, as amended (hereinafter referred to as "Civil Code"). The aim of this contribution is to think about the applicability of the assignment of the contract in the assignment of the lease agreement to immovable property on the part of the lessor - the owner of the immovable property.
The introductory provisions of § 1895 of the Civil Code allow assignment for those types of contracts for which their nature does not preclude it. It is therefore necessary to answer the question at the outset whether the nature of the lease does not exclude assignment. In practice, there is a progression of lease agreements on the part of the tenants, which has not been contested by the judiciary and with a high degree of probability will not be contested either. The nature of the lease does not clearly preclude its assignment. However, it is necessary to move the consideration further terminologically and to think not about the transferability of a certain contractual type, but transferability in relation to a contractual party with certain individually determined characteristics. In our case, the owner of real estate.
Renting immovable property is one of the basic manifestations of property rights. But not by right, which is inseparably linked with ownership. For the reasons given below, it is possible to infer the admissibility of situations where a person different from the owner appears on the lessor's side of immovable property (including movable property), and therefore in
dku and the possibility of assigning the lease agreement by the landlord.
It follows from the very wording of the rental contract amendment that the lessor does not have to be the owner of the thing at the same time. According to ustan. § 2201 of the Civil Code, the lessor undertakes to leave the thing to the lessee for temporary use. Also, some laws explicitly provide for the possibility of renting a thing by a person other than its owner. It may be a lease of things entrusted to them for administration. See e.g. Ustan. § 54, paragraph 1 of Act No. 219/2000 Coll., on the property of the Czech Republic and its conduct in legal relations, as amended, or similar statute. § 34 of the Act No. 131/2000 SB., on the capital city of Prague, as amended. Even older jurisprudence allows the lease of an item that is not owned by the lessor, for this see the Resolution of the Supreme Court of the Czech Republic - Senate of 21 February 2.2006, no. stamp 32 Odo 359/2005: "The fact that the leasing lessor is not the owner of the leased items does not invalidate the leasing contract according to Section 39 of the Civil Code. disciple.". Finally, we can lean on the ultimate ustan. § 1760 of the Civil Code: "The fact that the party was not authorized to deal with what is to be performed according to the contract does not in itself invalidate the contract." The current legislation therefore allows the validity of the rental agreement under certain circumstances, when on the part of the lessor a person not authorized to dispose of the leased item.
In the previous post, we addressed the issue of renting apartments by legal entities and the subsequent subletting of such apartments.[1] The institution of the assignment of the lease agreement can be a practical and legally compliant alternative in a situation where the owner of the immovable object wants to leave as much as possible concerns related to the lease of immovable objects to a third party. After the assignment of the lease agreement, such a third party will become the lessor, will be able to decide on the termination or extension of the lease relationship, etc., according to their own economic considerations. subjects. Of course, you can also choose the way of concluding a contract for the use of the property or the establishment of an easement, but only for leases entered into in the future.
Source: epravo
The team of the Vych & Partners, s.r.o. law office
[1] Renting an apartment by a legal entity; JUDr. Tomáš Pokorný; available on our website in the Media section or on the eprava website: https://www.epravo.cz/top/clanky/najem-bytu-pravnickou-osobou-109026.html
