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Void paragraphs in Lease contract

Void paragraphs in Lease contract

In a previous article, I wrote about the basic differences between a lease and a sublease. I mentioned there that the lease agreement may have some ineffective paragraphs, i.e. prohibitions, orders, restrictions that are written in the agreement, but it is not possible to enforce them in any way - that is, from a legal point of view, as if they were not in the contract at all. Here I would like to look at the most common ones I come across in my practice and describe in more detail what I like to do in cases where you have such a paragraph in the draft contract, or a contract that has already been signed.

1. Animals, smoking, visitors…

Such a paragraph of the contract may be, for example: "The tenant is not allowed to keep an animal in the apartment." Or: "The tenant and his visitors are not allowed to smoke or use other addictive substances in the apartment." Or my favorite: “Every tenant visit must be approved in advance by the landlord and may not stay in the apartment for more than two hours.” These are classic examples of ineffective provisions. Although each for a slightly different reason, the result is the most important thing and that’s the fact that we can treat the provisions as if they were not there at all. In the first case, in the case of animals, this is a direct conflict with the provisions of the Civil Code on lease of apartment (the law allows for animal husbandry, so it cannot be prohibited in this way.) In the second case, the landlord cannot restrict the tenant’s general rights in this way. But beware! This does not mean that the tenant is not responsible for the damage! If you smoke a lot in the apartment, so that it will be necessary, for example, to scrape off an old painting and return the apartment to its original condition in an expensive way, as a tenant you are responsible for this! But that applies whether it was forbidden in the contract or not. And the third case is already an ad absurdum argument in itself. By renting an apartment, you do not become the property or a subject of the landlord – despite the word original meaning. It certainly cannot restrict you to fundamental rights just from the position that he owns the apartment and you "only" lease it! However, this approach of some owners is very common, we will come across it several more times.

2. Permanent residence

"The tenant is not entitled to establish a permanent residence in the apartment. Or register the address."

The ban on establishing a permanent residence is a very common paragraph of lease agreements, and I see it in almost every second lease contract I read. It is there because "in ancient times" it was not possible to evict a tenant from an apartment if he had a permanent residence here. So, it was a big problem. However, nothing like this applies today and it makes no sense to ban tenants from registering permanent address in the apartment. What's more, it caused problems to the state, because the state loves to know everything, and so where people are moving, where are they actually living is valued information. And because people don't report a change in address when the owner of leased apartment forbids it, it’s bad. Therefore, there is a law that makes such a paragraph an ineffective provision. And you don't have to be afraid - all officials at the MOI know this. So, if you go to register an address for your stay at the MOI with a lease agreement that contains such a provision: no one will be excited about it at all there and will not cause you any problems with a residence permit because of such a provision in your contract. (There is also a difference between permanent residence address and permanent residence, where permanent residence address is a registered address for the Czech authorities, while permanent residence is a residence permit for which you need to register an address. (Same but different :-D ) This article covers both cases. There is no problem confusing these terms.

3. Shortening the notice period

"The notice period for termination without reason is 1 month from the month of delivery."

This is, for example, the best provision that you can see in the contract as a tenant. It is completely for you, although the owner may think that he has got you here. It is ineffective, but it is ineffective only against the landlord, it can be used for the benefit of the tenant! E.g., in the case of a fixed-term contract (the vast majority of lease contracts) as a tenant, you can only terminate the contract with three months’ notice period, and only if you have good reason to terminate the contract. In general, you, as a tenant, cannot terminate the contract as you wish (without giving a good reason). However, if you have a provision in the contract that gives you this right. It's valid for you! (Only rights that are to the detriment of the tenant cannot be curtailed - this would be to the benefit of the tenant.) However, it would already be to the detriment of the tenant. The law does not give the owner the opportunity to terminate the contract without giving a reason and sets the notice period at 3 months in certain circumstances. Therefore, it will be an ineffective provision for 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 evergreen. Copied among almost all of them. Yet, so dangerous for the landlords if it would be proceeded according it. Here, we are entering the criminal law. If the landlord really does such a thing (Enter the apartment without your present and evict you like this), he is commits not one, but 2 crimes! And it also depends on how he treats the belongings, because it is easy to add third. It is void paragraph because no one is entitled to agree on commit a crime. (Really, if you have 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 the court and the court executor can evict you!

In this case - I wouldn’t like to have it in the contract at all. Because once it is there, it gives some landlords ,,the feel” they really can do that and so they do (or at least they use it to ,,blackmail” the tenant by threatening by using it. And being throw out like this and start to solve the situation in that position is not good at all. (Although you will most likely win all the courts and get the money, the situation itself is better to avoid. And let the owner know in the beginning that you disagree with such a behaviour by insisting on removing the paragraph form 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 paragraphs in lease contracts, but they are far from as common as those described above, in which at least one of them is in perhaps every contract. It is up to the lessee if receive a draft of lease contract containing such provisions if to negotiate about removing them, or whether, with knowledge of their ineffectiveness, will leave them in, or anything in between. (Just a note, the fact that one or more such provisions are in the contract does not mean that the whole contract is void or ineffective. The provisions described here apply to the provisions separately! The rest of the contract in such cases continues work as it should.)

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