legal aspects of lease renewal action
A very common question for entrepreneurs is how to renew the lease for your company.
In the profession we hear from customers several questions as these: Should I pay gloves in renewal? I can require the landlord to renew the contract? Until when? If they sell the property should I leave?
Well, for entrepreneurs who have their trades at leased this post will bring some practical tips.
Come on?
Protection of goodwill
First you need to explain that the law governing these relations is the Law No. 8.245 / 91 (Lease Law) and, when it comes to the business property it protects mostly a thing called "goodwill", that is, she wants protect all investments that the tenant entrepreneur has the property and, more than that, the relationships that customers have created with that location, so that if the company leave, is poured, you may lose customers who own and contracts He still does.
Who can apply
Also there is always the question on who can apply for this renewal. As a rule, may apply for renewal of the rent tenants, members of business activity, the subtenants and the bankruptcy of the company. The renovation costs for the buildings in which they are established trades, industries and civil societies for profit (self-employed in general), provided they have the requirements to do so.
Gloves
In addition, we need to explain that the law does not prohibit the collection of so-called "gloves" at the start of the lease, but expressly prohibits its collection when renewing contract. This means that the business owner can pay a certain amount in the form of gloves to ensure preference in signing the contract, but the landlord may not charge any amount to renew the contract. This is to ensure that the entrepreneur, after making a big investment, not at the mercy of the landlord. Any clause to this effect is null and void (art. 51 of Law 8.245 / 91) and the collection is to a misdemeanor (art. 43, item I of Law No. 8,245 / 91).
Requirements for renewal
The Lease Law allows the business property tenant demand (forcing) the contract renewal case fill and check some requirements:
1 - Have a written contract of at least 05 consecutive years:
The law demands that the contract is written, fixed-term and have 5 years duration. One can also join two or more successive contracts and uninterrupted for the sum of five years, but there is a doubt in the doctrine and jurisprudence if it is "sum contract" if there is time between them. It is understood, as a rule, that if the period is short (ie, the average time for a deal is made) it is possible that sum of deadlines to achieve five years.
2 - three-year exploration of the same business activity:
The entrepreneur must be there at least 03 years in the same activity (restaurant, clothing store, dental office etc.). This is because the legislature understood that this is a time limit for the entrepreneur to form a clientele and establish the such goodwill. It allows, however, that the entrepreneur add activities, for example, a bakery that also began to serve as a restaurant. In this case, it is understood that there was no change in activity, only an afterthought. But if a bakery-turned-restaurant, for example, it requires that the restaurant is in operation for 03 years to be eligible for renewal.
3 - Perfect fulfillment of the contract in question:
The simplest possible delay of rent does not constitute the breach of contract. Even when we propose an eviction action and the entrepreneur purge the arrears, paying as much as before because of the continuity of the action, you can also understand that the contract is to fully comply. We can not, however, the tenant entrepreneur proceed recurrent delays, pay no combined local, not paying condo fees (if any), taxes, fire insurance and other remaining costs associated with its obligation (Article 23 of Law No. 8.245 / 91) coming in these cases not to make good on the lease renewal action. To enter the action, submit to discharge all these charges.
4 - Provide a guarantee:
Should the lessee submit a letter signed by the guarantor (and your spouse if you are married (a)) already guarantee the initial contract and can present new guarantor or other security (as collateral, insurance bond or title of real estate fund pursuant to Article 37 of Law No. 8,245 / 91). In both cases, it is peaceful jurisprudence in the sense that it is necessary to again prove the financial condition of the former guarantor and just prove the financial situation of the new guarantor, if any.
5 - To propose action in a timely manner:
Begins the period for bringing this action a year before the contract expires and that period ends exactly 6 months before the contract expires. This means that the tenant who is with all the requirements in its favor has six months to propose action and these six months begins a year before the date of expiry of the contract. For example, if the current contract expires on 01.01.2019, the deadline for the filing of lease renewal action runs from 01/01/2018 to 06/30/2018. If the action is proposed within this time limit, no right is granted to the entrepreneur who can be evicted by the landlord.
6 - Presenting the proposed new rent and conditions of the new contract:
The rental amount should be renegotiated lease renewal in action, bearing in mind that, as a rule, the economic situation of the market always changes a minimum period of 05 years. Thus, the entrepreneur must propose action in addition to the new type of guarantee and the term of the new contract, the form and the adjustment index and the value of the new lease, which should be based on market value.
What are the landlord's defenses?
Specifically, the landlord may propose in its defense the following matters:
1 Lack of the above requirements:
If the tenant is unable to prove any of the above requirements, the landlord can present this as his defense.
2. Failure of the rent proposed by the author:
The landlord can understand that the value proposed by the lessee would not be appropriate and proving through expertise, the value is greater than the one that was asked in the process. If the action is pending after the initial contract (which is very common) the judge can determine a provisional amount of rent (which is limited to 80% of the amount requested by the lessor) to be paid by the lessee up to the final sentence .
3rd best proposal for Existence:
If there is third best proposal for the lease of the property, the landlord can exercise his defense presenting this proposal in mind in writing with two witnesses. If the tenant can cover such a proposal, it will say so in court. If you can not cover the proposal, there will be no renewal of the contract and the lessor, together with third party who made the proposal will have to compensate the tenant for the injuries they suffer from the point of loss.
It is emphasized that the proposal should be made to the company deployment with other line of business that the lessee. If the same field, is not worth the proposal.
4 Need for execution of works determined by the Government or works that increase the value of the business or property:
Obviously, if the property is required by the Government to carry out works will not be possible renewal. It is also the case if the lessor will prove that works substantially increase the property value. It turns out that, if such works are not started within 60 days incurred by the lessor in crime convict with imprisonment from 03 months to 01 years. It must still be paid a severance penalty to the lessee worth 12-24 times the amount of rent. If such works are not started within 03 months to still the lessor compensate the lessee for all the damage he suffered.
5 Use own property or descendants, ascendants or spouse to be established on site:
This is called the "resume exception." Unfolds in two cases: the first is for the landlord's own use. In this case, if the landlord is personally use the property does not fit the renewal of the lease. This use can be residential or business, in which case the business branch can not match the one that the lessee exercises.
In the second case is when the landlord will use the property for business on their descendants, ascendants, spouses or he himself has a majority share, it could be necessary than in the same tenant hive of activity and that the company has more than one year of operation.
Term that renews contract
It is understood that the term that renews the contract is the term of the existing contract, that is, if the entrepreneur has a lease of 05 years, the renewal action will generate a new contract with the period of over 05 years . With this reasoning we can say that if the final contract is 03 years (which coupled with a previous 02 years to complete the requirement of at least 05 years) would generate a new contract with a period of just 03 years.
It turns out that the case law has held that, as the time limit for the filing of a renewal action is 05 years, the result of the action can not be less than that because the intelligence of Article 51 of Law No. 8,245 / 91 says up to renewal "for the same term," and has as requirement a period of 05 years of uninterrupted contracts. Thus, many decisions have accepted the renewal for a period of 05 years, regardless of the term of the last contract.
Likewise, we discuss the possibility of the occurrence of a number of lease renewal action propositions, straight, so to make the landlord be eternally required to lease the property to the lessee manager, that every 05 years, for example, proposes new action and can in court the ownership of the property. This possibility is certainly a real limitation of property rights. Occurs, however, that both the doctrine and jurisprudence, mostly claim to be possible such a situation therefore established the entrepreneur's rights to renew the lease in favor of the constitutional protection of free enterprise, shall be exercised this limitation on the right of property, since that right is not absolute and the law brings several cases in which there is the possibility of repossession of property.
The House resumed
If rejected the lease renewal action, the landlord can ask the eviction of the tenant entrepreneur within 30 days.
Even if the entrepreneur appeal the decision can still be evicted if the landlord makes this request in its defense and present in court a deposit 06-12 months' rent (to be determined by the judge). Only in this case, may require the tenant's eviction in provisional execution of the judgment seat.
term clause
It is also important to note the following: for the tenant entrepreneur (especially one who paid or gloves that eventually bought the business establishment along with the lease) every lease must have a valid clause. This clause says that any property purchasers now leased are obliged to respect the terms of the contract agreed with the landlord. With the presence of this clause is necessary that the contract is recorded in the property registration leased, the Real Estate Registry.
Thus the entrepreneur is guaranteed if the landlord sells the property, since, if there is such a clause and / or the agreement is not notarized, the buyer may notify the entrepreneur within 90 days after the sale, giving term 90 days to vacate the property entrepreneur, at the risk of eviction.
And in this case, even if the property is donated, the donee may also require the entrepreneur vacate the property on the same terms.
Well, these are some aspects of lease renewal action.
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