Deferral of rents for leases for uses other than housing
Royal Decree-Law 15/2020, of April 21, on urgent complementary measures to support the economy and employment, regulates the deferral in the payment of rents for business premises, professional offices and industry, which is only mandatory when the lessor is a company or public entity or large housing holder.
Royal Decree Law 15/2020 (LA LEY 5476/2020) regulates the possibility of requesting the deferral of the payment of rents to tenants of lease contracts for use other than housing, whose activity is affected by the state of alarm derived from the Covid-19 health crisis and meet the following requirements:
1. When the parties have not voluntarily entered into an agreement in this regard.
2. When a) the activity carried out by the lessee is suspended by Royal Decree 463/2020, of March 14 (LA LEY 3343/2020), or by orders issued by the competent Authority or, b) when the activity is not suspended, but it can be accredited the reduction of the invoicing of the calendar month prior to the one in which the deferral is requested by at least 75%, in relation to the average monthly invoicing of the same quarter of the previous year.
3. Self-employed persons must be affiliated and registered with the social security when the state of alarm is declared.
4. And SMEs cannot fail to comply, during two consecutive fiscal years, with two of the following circumstances: a) that the total assets do not exceed four million euros, b) that the net amount of its annual turnover does not exceed eight million euros and/or c) that the average number of workers employed during the fiscal year does not exceed fifty (art. 257.1 of Royal Legislative Decree 1/2010, of July 2, which approves the revised text of the Capital Companies Act (LA LEY 14030/2010)).
However, it is established that the moratorium will only apply when the lessor is a company or public housing entity or a large housing holder, i.e., the lessor owns more than ten urban properties, excluding garages and storage rooms, or a built-up area of more than 1,500 sq. m. The law establishes that the moratorium will only apply when the lessor is a company or public housing entity or a large housing holder. On the other hand, when the lessor does not meet this condition, the temporary deferral of the rent may be requested by the lessee but, in no case, is the lessor obliged to accept it. In this type of lease, the parties are only allowed to freely dispose of the deposit, provided by the lessee under article 36 LAU, to be used for the total or partial payment of the monthly rent not paid by the lessee. However, it is established that the lessee must replace the amount of the deposit within one year from the execution of the agreement or within the remaining term of the lease, if it is less than one year. This regulation is meaningless if we take into account that any lessee may request from the lessor, by virtue of the principle of free autonomy of the will of the parties, any measure on which it wishes to reach an agreement with the lessor (deferment of the payment of the rent, reduction of rent, payment in installments, etc.), without the need for it to be specifically regulated in a rule.
In addition, it should be taken into account that, according to the explanatory memorandum of Royal Decree Law 15/2020 (LAW 5476/2020), this rule is intended to establish a specific regulation to protect those affected by the consequences that the State of Alarm derived from the Covid-19 health crisis has caused for tenants who find themselves unable to pay the rents of their lease agreements for use other than housing due to the lack of economic or professional activity of their businesses. Thus, the explanatory memorandum states that this regulation is necessary because the current regulations, contained in the LAU and the Civil Code, do not provide for any cause for exclusion from the payment of rent due to force majeure or due to a declaration of a state of alarm or other causes. For this reason, it considers that it is appropriate to provide for a specific regulation in line with the “rebus sic stantibus” clause, of jurisprudential elaboration, which allows the modulation or modification of contractual obligations if the required conditions are met. However, surprisingly, the regulation adopts the least beneficial measures for the lessee in relation to the interpretation made by case law and doctrine of the “rebus sic stantibus” clause.
Thus, the case law of the Supreme Court (STS of June 30, 2014 (LA LEY 84939/2014)) and October 15, 2014 (LA LEY 171646/2014)) endorses the possibility of temporarily suspending the payment of rent as a consequence of the supervening impossibility of compliance with the cause of the contract when the lessee cannot develop the economic or professional activity object of the lease and, therefore, justifies the adoption of this measure, temporary and exceptional, in the imbalance that occurs in the contractual obligations of the parties (according to STS of July 13, 2017 (LA LEY 97035/2017)). So that there is “a serious disruption or mutation of the circumstances and, therefore, the bases on which the initiation and development of the contractual relations had been established are altered” (as stated in the STS of February 24, 2015 (LA LEY 47081/2015)). In the same sense, the doctrine (see Salas Carceller, A., Magro Servet, V., Orduña Moreno, F.J, García Ceniceros, R., “Cláusula rebus sic stantibus y arrendamientos de local de negocio. La posible suspensión del contrato” coordinated by A. Fuentes-Lojo Rius, Actualidad Civil 4/2020, Diario la Ley of April 22, 2020) has considered that the State of alarm derived from the Covid-19 health crisis justifies the application of the “rebus sic stantibus” clause allowing the suspension of the contract and even the partial or total reduction or cancellation of the rent or the termination of the contract.
On the other hand, the measure adopted by the Government establishes only the possibility for the lessee to request the lessor, within one month from April 23, 2020, to defer the payment of rents for the duration of the effects of the state of alarm due to the coronavirus health crisis, with a maximum of four months’ rent, without penalty or accrual of interest, as from the monthly rent following the request. For this purpose, the lessee must notify his request to the lessor attaching: a) in case of suspension of the activity, a certificate from the AEAT of the declaration of cessation of activity or b) a responsible declaration stating the reduction of the monthly invoicing. When the lessor so requires, the lessee will have to show his accounting books to the lessor to accredit the reduction of the activity. The monthly payments affected by the suspension, subsequent to the state of alarm, will be extended on a monthly basis, therefore, they must be communicated to the lessor. Subsequently, an installment of rents is allowed for a period of two years, which will be counted from the moment in which the crisis situation is overcome, or from the end of the four-month period, and always within the term of the lease contract or any of its extensions. But, surprisingly, it does not pronounce on other measures contemplated by the “rebus sic stantibus” clause, such as the possibility of suspending the payment or reducing the rent.
Además, como ya hemos mencionado, esta medida no se aplicará en todos los casos, sino que únicamente tendrá una aplicación obligatoria y automática desde su solicitud, cuando el arrendador sea una empresa o entidad pública o un gran tenedor de vivienda. En el caso que el arrendador no cumpla estos requisitos, el aplazamiento tendrá carácter voluntario. Y, por lo tanto, parece que con esta regulación se cierra la posibilidad de que los Tribunales puedan decidir aplicar una interpretación más amplia de la cláusula «rebus sic stantibus» a este tipo de contratos de arrendamiento. Considero que es así porque, como hemos visto, la propia exposición de motivos indica que con este Real Decreto Ley “procede prever una regulación específica en línea con la cláusula «rebus sic stantibus», de elaboración jurisprudencial, que permite la modulación o modificación de las obligaciones contractuales si concurren los requisitos exigidos: imprevisibilidad e inevitabilidad del riesgo derivado, excesiva onerosidad de la prestación debida y buena fe contractual”, de forma que con esta regulación se fijan los criterios que deben aplicarse a estos tipos de contratos, en virtud de la mencionada doctrina jurisprudencial.
In short, the measures adopted are not only insufficient to alleviate the effects produced by the cessation or reduction of the economic activity for the tenants of business premises, professional offices or industry as a result of the State of alarm due to the health crisis of Covid-19, but also restrictively applies the doctrine of the “rebus sic stantibus” clause, developed by the case law of the Supreme Court, contrary to the majority opinion of the doctrine and without addressing the social demands, especially of those affected by this situation. Therefore, this regulation may have serious consequences for the economic and professional activity of the self-employed and SMEs, hindering their subsistence and, by default, affecting employees and self-employed workers who depend on them, and the country’s economy in general.