Silvia León.- A Court of First Instance of Gran Canaria sentenced the tenants of a business premises to pay 17.000 euros to the owner of the same, for the rents already not paid during the confinement decreed by the Government.
The judge considers that it is not appropriate to reduce the rent by the tenants, since they did not present a periodic report that accredited the exact income during the pandemic and before it, so it is possible that there was greater solvency that would lead to the eventual reduction in income was temporary and would not have produced a real impossibility of contractual fulfillment.
According to the lawyer of the owner of the premises, Sergio Choolani Farray of the Miralaw office, “it is a relevant resolution since, despite the fact that it could be considered well-known that a premises located in a coastal area, whose activity is focused and directed to the tourism sector , and that it is evident that it has been affected by the consequences of Covid-19, the judge rules out any type of modification in the rent, if the correspondent does not present an expert report that proves it ».
Contract resolution
In September 2020, the landlord and the tenants signed an early termination agreement, because the tenants could not continue paying the agreed rent, in addition to the debt they had already accumulated since March of that same year.
After the signing of the document and the return of the keys, the lessor submitted a request for a claim for the amount of the outstanding debt. Amount that corresponded to the period between March and September 2020, that is, months affected by the confinement decreed by the hanging Government the first State of Alarm.
economic imbalance
The former tenants objected and requested a reduction of 50% of the rent accrued during those months, under the so-called rebus sic stantibus clause.
It must be remembered that this clause is a doctrinal figure that allows the revision of contracts when, due to unforeseen circumstances, the economic balance of the contract has been broken and one of the parties finds it impossible or very serious to comply with it.
However, although this rule has been recognized by jurisprudence, it has always been done in a very cautious manner, given the general principle that contracts must be fulfilled under art. 1091 Civil Code.
Inform Expert
Along these lines, the Court dismisses the reduction requested by the former tenants, considering that "the reasonable thing is that an expert report prepared by an economist or accountant had been provided that precisely justified the losses and consequences" of the pandemic in the affected business. . And it is that, according to the account of the proven facts, the tenants recognized that the collections in the business were made in cash, so that the only income that is recorded is that which they themselves reveal. For this reason, the accounting entries of income and expenses of a current account provided by the defendants is not sufficient to justify that as a result of the coronavirus crisis there have been losses.
In this sense, the sentence adds, the most recent jurisprudence requires, in similar cases, that the party that intends to modify the economic conditions of the contract must prove qualitatively and quantitatively that the pandemic has affected the negotiation, mediate the contribution of an expert opinion Prepared by an economist who makes a comparison between income, not only in the year of the pandemic, but in previous years.
Finally, since the exact income during the pandemic, nor the previous ones, is not known, the judge deduces that it is possible that there was greater solvency that would lead to the possible reduction in income being temporary and not having produced a frustration of the firmness of the contract. For this reason, he estimates the amount claimed by the owners of the premises and condemns the former tenants to pay the 17.000 euros owed, plus costs.
