The inviolability of housing is one of the basic human freedoms, enshrined in the Czech legal environment in Article 12 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the "Charter"). Article 12 paragraph 3 of the Charter[1] it also establishes the conditions under which this freedom can be restricted. From a constitutional point of view, intervention is acceptable only on the basis of the law, if it is necessary in a democratic society, and that, among other things, to protect the rights and freedoms of others. Similarly, freedom of residence is regulated in the European Convention on Human Rights in Article 8. However, any restriction is limited only to the intervention of a state authority (public authority, "autorité publique"),[2] which is due to the nature of the convention.
The police authorities most often enter the dwelling against the will of its user as part of an ordered house search. The police of the Czech Republic is also authorized to enter the residence without the user's consent if the matter cannot be delayed and entry there is necessary to protect the life or health of persons or to avert a serious threat to public order and safety.[3] Other cases in which the laws foresee restrictions on the freedom of housing include, for example, an inspection of the technical condition of immovable property by the building authority,[4] access to the dwelling, if it is used for business, in connection with the tax audit,[5] or, most recently, control of the fulfillment of obligations in the field of air protection (so-called boiler control).[6]
The above examples relate purely to the area of public law interference. In the sphere of private law, the owner can enter the dwelling (usually it will be an apartment), when the affected (restricted) person will be the user of the apartment. The inviolability of the dwelling is guaranteed to persons who have a valid legal title to use the given space and, under certain circumstances, also to persons who have no title.[7] The apartment owner has the right of access to the apartment in two situations. 1) if the technical condition of the immovable object requires it, i.e. the need for its repair or maintenance[8] 2) if required by legal circumstances. We will dwell more on these legal circumstances.
According to ustan. § 2233 of the Act No. 89/2012 Coll., Civil Code, as amended (hereinafter referred to as the "Civil Code"), the tenant is obliged to allow the owner access to the subject of the lease within three months before the end of the lease, for the purpose of inspections of other interested parties to rent the apartment . In my opinion, the stated provision is also applicable by analogy to the case of selling an apartment. Therefore, if the owner intends to sell the apartment, the tenant is obliged to allow inspections even in cases where the lease does not expire. Of course, it is not possible to reliably set a three-month period before selling the apartment, and it will be necessary to look for a "reasonable" period. The activation of the tenant's obligation to allow inspections of the apartment and, on the other hand, the owner's right to carry out inspections, should fall at the moment when the owner has a serious intention to sell the property. The possibilities of proving such a moment will of course be limited. The intention can be manifested, for example, by concluding the relevant brokerage contract or by publishing an advertisement.
The problem arises when the user (tenant) refuses to allow the owner access to the apartment. In a situation where the owner demands that inspections be allowed due to an expiring lease, the easiest solution is to wait until the notice period expires and the tenant leaves the apartment. However, if the lease continues and the owner wants to sell the apartment, such a moment is not in sight.
Unfortunately, there is no flexible solution to such a situation. As stated above, the Police of the Czech Republic does not have the option of providing cooperation to the owner of the apartment in the approach, as these are not cases that cannot be delayed. It is also not recommended that the owner of the apartment enter someone else's dwelling against the wishes of its user. Measured on the scales of competing fundamental rights and freedoms, the protection of housing takes precedence over the protection of property.[9] The owner would thus be exposed to the risk of criminal penalties for violating the freedom of the home.[10]
It is obvious that the refusal to let the owner into the apartment, either because of the intended re-renting or sale, will have negative effects on the property of the owner. The impossibility of an inspection on behalf of the interested party delays the moment of concluding the given contract and also reduces the price of the apartment (especially in case of sale). The owner will thus be entitled to file a lawsuit against the user of the apartment for compensation for the damage incurred in the form of the difference between the realized purchase price and the purchase price that the owner could achieve on the market in the event of possible inspections of the apartment. Or in the form of lost rental income.
Another way to solve the violation of the obligation to make the apartment available for inspection purposes is to terminate the apartment lease. Violation of the tenant's obligations according to the bylaws. § 2233 of the Civil Code, especially a repeated one, is a gross violation of his obligations and therefore a valid reason for termination from the lease agreement in the sense of the statute. § 2288 paragraph 1) letter a) Civil Code[11] If the apartment owner does not decide to proceed in the form of termination of the apartment lease, another possible option is to file a civil action for performance. However, both solutions mean postponing the sale of the property by at least a few months.
It is constantly necessary to find a balance between the protection of property rights on the one hand and the protection of home freedom on the other. However, it is a question whether the owner of immovable property should have access to his property even against the will of the user, if he has a legitimate reason to do so. Article 12, paragraph 3 of the Charter allows for such a legal regulation.
Source: epravo
The team of the Vych & Partners, s.r.o. law office
[1] Article 12, paragraph 3 of the Charter: "Other interventions in the inviolability of the dwelling may be permitted by law only if it is necessary in a democratic society to protect the life or health of persons, to protect the rights and freedoms of others, or to avert a serious threat to public safety and order." If the dwelling is also used for business or other economic activity, such interventions may be permitted by law, even if it is necessary for the performance of public administration tasks."
[2] Article 8, paragraph of the European Convention on Human Rights: "A state authority cannot interfere with the exercise of this right except when it is in accordance with the law and necessary in a democratic society in the interests of national security, public safety, the economic well-being of the country, the prevention of riots and crime , the protection of health or morals or the protection of the rights and freedoms of others." ("Il ne peut y avoir ingérence d'une autorité publique dans l'exercise de ce droit que pour autant que cette ingérence est prévéte par la loi et qu'elle constitue une mesure qui, dans une société démocratique, est nécessaire a la sécurité nationale, a la sureté publique, au bien-etre économique du pays, a la défense de l'ordre et a la prevention des infractions pénales, a la protection de la santé ou de la morale, ou a la protection des droits et libertés d'autrui.")
[3] See ustan. § 40 paragraph 1 No. 273/2008 Coll., on the Police of the Czech Republic, as amended: "A police officer is authorized to enter a dwelling, other space or land without the consent of the user and to carry out the necessary actions or other measures there only if, if the matter cannot be delayed and entry there is necessary to protect the life or health of persons or to avert a serious threat to public order and security."
[4] See ustan. § 172 paragraph 3 of the Act No. 183/2006 Coll., Building Act, as amended
[5] See ustan. § 81 paragraph 1 of the Act No. 280/2009 Coll., Tax Code, as amended
[6] See ustan. § 17 paragraph 2 of the Act No. 201/2012 Coll., on air protection, as amended
[7] See ECtHR decision McCann v. United Kingdom, judgment, 13/5/2008, No. 19009/04 § 46: the applicant has lost the right to use the flat under national law]: “…home may be a place to which the resident does not have a valid legal title… " [, § 46: the complainant lost the right to use the apartment under national law].
[8] See ustan. § 2219 of the Act No. 89/2012 Coll., Civil Code, as amended
[9] See the Judgment of the Supreme Court of the Czech Republic here on 15 February 02, file no. stamp 2005 Cdo 22/863: "...the possibility of encroaching on the right to protect the inviolability of the dwelling must (subject to the fulfillment of certain conditions) be established directly in the law and therefore cannot be indirectly derived, for example, from the property right of another to use the thing (cf. the relationship of the owner of the house and the tenant of the apartment)."
[10] See the judgment of the Supreme Court of the Czech Republic dated 23 November 11, file no. stamp 2016 Tdo 8/1537: "This provision protects any authorized user, especially the tenant of a house, apartment or other premises used for living, i.e. not only the owner, against anyone (including the owner). Unauthorized intrusion into the dwelling of another is unwanted, without consent or against the will of the authorized user, entry into a house, apartment or other premises used for living, as well as into the accessories belonging to them, which interferes with the home freedom of another."
[11] See comment on ustan. § 2288 of the Civil Code available from the ASPI electronic database
