The tenancy relationship between the lessor and the lessee is usually terminated by their agreement, within which the contracting parties settle their obligations, including the amount of the remaining amount of rent as of the date of termination of the lease. But what if the tenancy relationship ends with a unilateral legal action in the form of a termination by the landlord due to poor payment morals of the tenant and the tenant refuses to move out and at the same time does not pay the rent? In such a case, the lessor chooses a solution in the form of a lawsuit to vacate the premises with subsequent enforcement of the decision. However, this process takes months, sometimes even years. Given that the contractual basis for the amount of payment for the use of the real estate no longer exists, the question arises as to what amount of unjustified enrichment for this period by the dishonest user of his real estate belongs to the lessor, when issuing the object of enrichment other than in money in this situation is not very possible.
There is no doubt that the outlined situation must be considered unjustified enrichment, when the unauthorized user of the real estate enriches himself at the expense of its owner by using the thing in question without any consideration, and at the same time the legal reason, i.e. the tenancy relationship, has already disappeared, or has never been properly established . The owner of the property then appears in the position of the impoverished, because after the termination of the lease agreement, his property values are used by the then tenant in the position of the enriched one without any payment, although otherwise the landlord could give his premises for rent to another, properly paying tenant.
The jurisprudence has always been settled on the opinion that in such a case the monetary compensation for the use of real estate without a legal reason is measured (as a rule) by the usual amount of rent spent for the use of the same or similar real estate in a given place, time and under comparable conditions (see the judgment of the Supreme Court dated 15/6/1999, file no. 25 Cdo 2578/98, further e.g. judgments of the Supreme Court dated 17/7/2008, file no. 30 Cdo 5484/2007, dated 2/9/2009, File No. 28 Cdo 2777/2009, or from 14 April 4, File No. 2011 Cdo 30/2063). In order to determine this "usual" price, the court must commission an expert opinion.
However, the Civil Code of 2012 introduced a new provision in this issue. According to its § 2999 paragraph 2, if the impoverished person performed for a fee, compensation will be provided in the amount of this fee. In practice, this means that if the impoverished landlord provided real estate for rent at a certain price during the existence of the lease agreement, then when this legal reason subsequently disappears, the amount of unjust enrichment will be determined on the basis of the price agreed in this lease agreement.
The reasoned report for the inclusion of this provision in civil law mentions that if it was performed for consideration, either according to an invalid contract or as part of an obligation that was subsequently cancelled, there is subsequently no reasonable reason for the impoverished person to demand compensation for the usual price, and therefore it is proposed grant him compensation in the amount of the price agreed in the contract, which was subsequently cancelled. According to the second sentence of the aforementioned provision, the above-mentioned standard does not apply if the remuneration has the character of a reason for the invalidity of the contract or a reason for the cancellation of the obligation, or if the amount of the remuneration was substantially affected by such a reason.
Although this provision of civil law has been effective since January 1, 1, when solving the situation outlined, Czech courts still refer to established jurisprudence from the time when Civil Code No. 2014/89 Coll. was not born and Czech law did not contain any similar provisions.
We refer, for example, to the recent resolution of the Constitutional Court of 15 March 3, I. ÚS 2022/530. The factual basis showed that, based on the agreement of 22 October 22, the respondent was entitled to use the land for a fee of CZK 10 per season for the purpose of operating a ski slope. After the termination of the obligation from the agreement, the petitioner called on the respondent to clear the land, which nevertheless continued to use it and paid the petitioner only the amount of CZK 2014 per season for its use. Therefore, the petitioner sued the respondent for the payment of the sum of CZK 50 as unjust enrichment for the use of the said land without a legal reason in the form and amount corresponding to the arrears for two payments of "rent" according to the said contract reduced by the actually paid payments of 000. - CZK.
The first-instance court dismissed the claim on the grounds that although the respondent used the land illegally, it considered the actually paid payments of CZK 4 for one rental period to be reasonable, based on an expert opinion, according to which such a price of rent in the given place and time and usual under comparable conditions.
The regional court rejected the appellant's subsequent appeal on the grounds that the expert opinion in question determined the amount of the usual price correctly and it was therefore not necessary to take into account the current (contractual) price for the use of the item. In response to the petitioner's appeal, the Supreme Court noted and, similarly to the regional court, reiterated that the amount of monetary compensation for unjust enrichment was determined taking into account the usual amount of the price spent for the use of the same or similar thing in a given place, time and under comparable conditions, and rejected the appeal.
In its ruling, the Constitutional Court rejected the petitioner's constitutional complaint. He justified the resolution in the way that the courts met their requirements when, among other things, they derived the amount of unjust enrichment from the amounts usually spent in a given place and time for the use of such an item, usually in the form of rent.
záver
The provision of § 2999, paragraph 2 of the Civil Code originates from the proposal of the European Civil Code[1], and although it has been in effect in Czech law for more than 12 years, the courts have not always resorted to its use and stick to the current judicial practice, according to which the amount of unjust enrichment for the use of real estate in the presence of an invalid rental agreement is determined on the basis of the price customary in the given place and time and under comparable conditions, although the subsequently canceled contract contained a consensus of the contracting parties on the value of the performance. I do not agree with this procedure of the Czech judiciary, because the purpose of incorporating this provision into Czech civil law was, in my opinion, to simplify the evidentiary situation, speed up the proceedings and also its economy. If we take into account that the usual price for the use of real estate is determined exclusively by an expert opinion, this means not only for the courts, but above all for the participants in the proceedings, high costs for the processing of such an expert opinion, but also often months of waiting for it to be prepared. In addition, each such individual expert opinion does not guarantee that the usual price set in it is the only correct option, which the participants subsequently dispute, and as a result, it just leads to the preparation of additional, this time revision opinions, and the submission of remedies, thereby increasing the length of the court proceedings in question the amount of unjustified enrichment for the use of the thing extends up to years.
Ignorance of the provisions of § 2999, paragraph 2 of the Civil Code on the part of the Czech courts is possibly due to the existence of the provisions of § 2999, paragraph 1 of the Civil Code, according to which, if the release of the object of unjust enrichment is not well possible, the impoverished person has the right to monetary compensation in the amount of the usual price. However, in my opinion, the second paragraph of the provision in question must be understood as lex specialis to the first paragraph, if there is the existence of an obligation relationship with an agreed value of performance, then in the event of the termination of such an obligation it is necessary to proceed from the value thus agreed, and not from the usual price, which is justified only in cases where the agreement of the contracting parties on the amount the payment was never agreed and at the same time the payment was never provided. The provisions of Section 2999, paragraph 2 of the Civil Code must also be applied in situations where the legal reason for performance never existed, but the enriched user of the thing provided payment for its use for some time.
Source: epravo.cz
Mgr. Denisa Mokřížová, a lawyer
[1] Art. VII.-5:102 paragraph 3 DCFR (Draft Common Frame of Reference).
