On July 23, 2021, the amendment to the Act on special solutions related to the prevention, prevention and combating of COVID-19, other infectious diseases and emergencies caused by them, and some other acts came into force. Tenants who, instead of paying overdue rents, have decided to submit offers for the extension of lease agreements by six months after the lockdown ends, have two weeks from the entry into force of the new regulations to terminate the previously submitted offer.
– The new solution, first, applies only to those tenants who have expressed their will to continue the lease on the current terms, submitted an unconditional binding offer to extend the lease for a lockdown period plus six months – says Diana Kalita-Knapczyk, attorney at law at Causa Finita. – The solution is beneficial for tenants. Anyway, declarations to avoid legal consequences have been launched avalanche, because it has a double beneficial effect for the tenant. On the one hand, he is still exempt from rent payments, on the other hand, he does not have to continue the lease.
This provision puts at a disadvantage both the landlords, i.e. owners or managers of shopping centers, and those tenants who decided to pay rent and service charges in return for the possibility of leaving the shopping center. They have incurred costs, and are in the same situation as those tenants who have not paid their arrears.
– The changes introduced in legal terms are controversial when it comes to the legislative process and violate the basic dogmas of the law: the legislator enters between two parties that are already “agreed” with each other in terms of obligations – assesses Diana Kalita-Knapczyk. – It can cause some organizational mess and frustration. It will certainly affect the business relations between the parties, because in many locations it is a long-term cooperation. From the human point of view, it should be appreciated that the legislator reaches out to tenants who really need help, because many of them have found themselves in a difficult or even crisis situation. However, the treatment of landlords as rentiers, who will always be able to cope, should be assessed negatively, because they are different entities with different financial circumstances.
At the same time, the lawyer reminds that if the tenant has evaded the legal consequences of the declaration of will to submit the offer, all the mutual obligations contained therein expire, i.e. not only the extension of the lease, but also the entire remaining content of the annex ceases to apply. Therefore, it is worth considering whether such a step is beneficial for the tenant, or whether he wants to resign from the entire agreement, which may also include provisions favorable to the tenant.
It is also worth noting that the new law applies only to lease agreements concluded before March 14, 2020, i.e. before the first lockdown. The offer must be terminated in writing and may only cover the last three lockdowns (without the first one), as the Act stipulates that this entitlement applies to offers whose submission deadline expired after December 31, 2020.
With possible future lockdowns, there will be no annexes or their cancellation. The new act introduces a reduction in rent payments in the event that shopping centers are closed again in the future – by 80 percent. during the new restrictions and by 50 percent. in the three months following their dismissal. However, in a situation where this would result in a gross loss of any of the parties or would be associated with excessive difficulties, the court will decide on the amount of the rates.
– It can be expected that such processes will be that there will be doubts among landlords as to whether such a reduction in conditions in a given location will be justified or in fact, especially after the end of the lockdown, a 50% reduction. will be justified, because perhaps customers will flock to the stores and the turnover will be intact – provides legal counsel Causa Finita. – Let us bear in mind that it is not – as before – provided for as a rigid rule, but rules that are subject to determination by the court, if there were special circumstances justifying a change in this respect.