Business premises lease, mandatory and cost of resolution
What the cost of a lease solve local business when mandatory rest period?
In the leases for use other than housing or commercial leases, usual the covenant of a mandatory period. However, the vicissitudes of the economy and other circumstances, determines that sometimes the lessee can not deliver the entire period that he forced. In theory, under contract, there would be an obligation to pay the remaining part of mandatory. However, in practice, This is not like this.
In this entry, we review the approach of the courts, on Judgment of the Provincial Court of Valencia 13 July 2015. Para la sala, It must be compensated with 3 monthly income for each year remaining until the end of the contract and the proportion for periods less than the annuity.
The company "Inversiones SL Canete" leased to "Pensol Works SL" a shop (the 1 January 2007) con una duración de 5 age and income 1.200 monthly euros and a warehouse (the 1 June 2010) con una duración de 2 age and income 725 monthly euros.
In August 2010, the lessee, unilaterally, both abandoned property.
Unable to reach an amicable agreement, "Investments Cañete" claimed in court the amount of 35.673 euros, the result of adding remaining mandatory monthly compliance, corresponding to both local.
"Pensol" objected claiming that the abandonment was known and consented to by the plaintiff, that there was no demand for payment and that contracts clause there is no compensation for unilateral withdrawal.
The Court of First Instance and Instruction No. 4 Ontinyent partially upheld the claim and he ordered the tenant to the payment of 9.354 euros.
So "Investments Cañete" appealed to the Provincial Court. He argued that there was no consent or tacit acceptance of the unilateral withdrawal. The placing leased premises, It does not mean that the resolution is accepted (in fact, They are not got rent). I credited the breach by the respondent and the lack of a tacit acceptance, they proceed for compensation for the total amount of income forgone.
The Provincial Court of Valencia partly estimated resource.
Considers ground that there was a unilateral termination of the contract.
And the attempt to re-rent the premises, there is a tacit acceptance unilateral resolution, but the result of the Repossession, and an attempt to reduce the harm suffered.
The Court refers to its judgment of 24 February 2014 (citing the SAP Barcelona 18 June 2012):
The strict application of the compensation for the entire period and therefore breached is considered excessive, It should be moderate. But Article 11 LAU is not automatic application that is not leasing contracts exceed the length housing 5 years old.
Also, it takes a assessment of the circumstances of the tenant regarding the necessary justification that the resolution is for cause.
Moreover, the Supreme Court in its judgment of 9 April 2012 It provides that compensation for loss of earnings requires "Reality-based and provided with some consistency assessment".
Ultimately, the Chamber considers that the compensation should be in three months' rent per year until the end of the contract, and the proportion when an annuity is not complete. The amount is fixed den 16.429 euros.
The case law is not unanimous regarding the fixing of compensation for unilateral termination of business premises. What it does offer is little doubt that:
1.- It is very difficult to estimate the obligation to pay the 100% the remaining period of mandatory.
2.- Attention must be paid to the circumstances of each case:
- Lessee: Justification of the impossibility of continuing with the local.
- Lessor: Avoid situations of unjust enrichment.
Overall, we can say that in leases of business premises, the cost of unilateral resolution is not to the entire remaining period of forced compliance.