Lease contract and ineffective clauses

In the previous article, I wrote about the fundamental differences between a lease and a sublease agreement. I mentioned there that a lease agreement may contain certain ineffective clauses—prohibitions, orders, or restrictions written into the contract that cannot be enforced. From a legal perspective, it is as if they were not there at all. Here, I would like to look at the most common ones I encounter in my practice and describe in more detail what to do if you have such a clause in a draft contract or an already signed agreement.

1. Animals, Smoking, Visitors…

Such a clause in an agreement might read, for example: “The tenant is not entitled to keep an animal in the apartment.” Or: “Neither the tenant nor their visitors are entitled to smoke or use other addictive substances in the apartment.” Or my favorite: “Every visit to the tenant must be approved in advance by the property owner and may not stay in the apartment for longer than two hours.” These are classic examples of ineffective provisions. Although each is for a slightly different reason, the bottom line is that we can treat them as if they do not exist. In the first case, regarding animals, it is a direct conflict with the provisions of the Civil Code on leases (the law permits the keeping of animals; therefore, they cannot be prohibited in this way). In the second case, the property owner cannot restrict the tenant in this manner. But beware! This does not mean the tenant is not liable for damages. If you smoke heavily in the apartment to the extent that, for example, old paint needs to be scraped off and the apartment must be restored to its original state at great expense, you as the tenant are liable for this! However, this applies regardless of whether it was prohibited in the contract or not. And the third case is an argument ad absurdum in itself. By renting an apartment, you do not become the property or the subject of the landlord! They certainly cannot restrict your fundamental rights simply because they own the apartment and you “only” rent it! This approach by some owners is very common, and we will encounter it several more times.

2. Permanent Residence

“The tenant is not entitled to establish a permanent residence in the apartment.”

Prohibiting the establishment of a permanent residence is a very common nuisance in lease agreements, and I see it in perhaps every second lease I read. It is there because “in the old days,” it was not possible to evict a tenant from an apartment if they had a permanent residence there, which was a major problem. However, nothing like that applies today, and prohibiting tenants from having a permanent residence in the apartment makes no sense. Furthermore, it caused problems for the state, as the state wants to know where people are moving, and in the case of leases, people do not report changes when the owner forbids it. Therefore, there is a statutory provision that renders such a clause ineffective. And you need not worry. All officials at the Ministry of the Interior (MOI) know this; if you go to register your residence at the MOI with a lease agreement containing such a provision, no one there will care, and it will not cause any problems with your residency permit. (There is also a difference between “trvalé bydliště” [permanent address] and “trvalý pobyt” [permanent residence], where the former is a registered address for Czech authorities, while the latter is a residency permit for which you need to register an address. The previous paragraph covers both cases. It is not a problem to use these terms interchangeably here.)

3. Shortening the Notice Period

“The notice period for termination without stating a reason is 2 months from the delivery of the notice.”

This is, for example, the best provision you can see in a contract as a tenant. It is entirely in your favor, even though the landlord might think they have outsmarted the tenant. This is because it is only ineffective against the landlord; it can be used in favor of the tenant! For example, in a fixed-term contract (the vast majority), a tenant can legally terminate the contract only with a three-month notice period, and even then only if they have a good reason for termination. Generally, even as a tenant, you cannot terminate the contract as you wish (without stating a reason). However, if you have a provision in the contract that gives you this option, it is valid for you! (Statutory rights cannot be shortened only if it is to the detriment of the tenant—this would be to the tenant's benefit.) However, on the part of the landlord, it would be to the detriment of the tenant. The law does not give the owner the option to terminate the contract without stating a reason and sets the notice period at 3 months under certain circumstances. Therefore, it will be an ineffective provision regarding the owner.

4. Consent to Eviction

“The tenant gives by signing this contract expressive agreement to the landlord for the case the tenant does not clear the flat after expiry of lease or termination of the contract by withdrawal or in other cases specified in this contract to enter this flat to list possessions present here, clear the flat and avoid further using of the flat by the tenant.”

This paragraph in the contract is an evergreen, copied into almost all of them. Yet, it is very dangerous for the landlord if they were to proceed according to it. Here, we enter the realm of criminal law. If the landlord actually does such a thing (enters the apartment without your presence and evicts you like this), they are committing not one, but two crimes! And it also depends on how they treat the belongings, because it is easy to add a third. It is void because no one is entitled to agree to the commission of crimes. (Really, if you have a contract which clearly states that someone is entitled to kill you, he will be prosecuted for murder regardless. Legally, this is the same situation!) Only a court and a court executor can evict you.

Personally (although I know this is also a void paragraph), unlike the others described above, I wouldn’t like to have it in the contract at all. Because once it is there, it gives some landlords “the feel” that they really can do that, and so they do (or at least they use it to “blackmail” the tenant by threatening them with it). Being thrown out like this and having to resolve the situation from that position is not good at all. (Although you will most likely win all court cases and get your money, it is better to avoid the situation itself. Let the owner know at the beginning that you disagree with such behavior by insisting on removing the paragraph from the contract.) But keeping it in the contract and simply knowing the landlord can’t do such a thing is also helpful, isn’t it?

There are many other examples of ineffective clauses in lease agreements, but they are nowhere near as common as those described above, at least one of which is in almost every contract… It is up to the tenant, if they receive a draft contract containing such provisions, whether they attempt to negotiate their removal for the sake of clarity, or whether they leave them in knowing they are ineffective, or anything in between. (Just a final note: the fact that there are one or more such provisions in a contract does not mean the entire contract is invalid. What is described here applies to the provisions individually! The rest of the contract in such cases continues to function as it should.)