What is The Constitutional Court found no 252 / 2006 Coll.?

The Constitutional Court found No. 252 / 2006 Coll., on the application for annulment of the provisions of § 685 to 716 of Act No. 40 / 1964 Coll., Civil Code, as amended — The Constitutional Court found of 28 February 2006 on the application for annulment of the provisions of § 685 to 716 of Act No. 40 / 1964 Coll., Civil Code, as amended.

Is The Constitutional Court found no 252 / 2006 Coll. still valid?

Yes, The Constitutional Court found no 252 / 2006 Coll. is still valid and effective.

The Constitutional Court found no 252 / 2006 Coll. - The Constitutional Court found of 28 Feb...

Q: When it became The Constitutional Court found no 252 / 2006 Coll. effectiveness?

The Constitutional Court found no 252 / 2006 Coll. became effective date not available.

252

FIND

The Constitutional Court

On behalf of the Czech Republic

On 28 February 2006, the Constitutional Court decided in plenary of the President of the Court of Paul Rychett and Judges Stanislav Balík, František Duchona, Vlasta Formánková, Military Güttler, Pavel Holländer, Ivana Jana, Vladimir Krorka, Dagmar Lastovecký, Jiří Much, Jan Musil, Jiří Nykodma, Miloslav Excellent and Eliška Wagner, on the proposal of the Municipal Court in Prague to abolish the provisions of § 685 to 716 of Act No. 40 / 1964 Coll., Civil Code, as amended,

as follows:

I. The long-term failure of the Parliament of the Czech Republic to adopt a special law defining cases in which the lessor is entitled to unilaterally increase the rent, pay for the performance provided with the use of the apartment and change the other terms of the lease is unconstitutional and infringes Articles 4 (3), 4 (4) and 11 of the Charter of Fundamental Rights and Freedoms and Article 1 (1) of Additional Protocol No 1 to the Convention on the Protection of Human Rights and Fundamental Freedoms.

II. The application for annulment of Paragraph 696 (1) of the Civil Code is rejected.

III. The application for annulment of § 685 - 695, § 696 (2), § 697 - 716 of the Civil Code is rejected.

Reasons

A.

In accordance with Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution), the appellant requested that the Constitutional Court issue a finding repealing a special provision on the lease of an apartment of Section Four of Title Seven of Act No. 40 / 1964 Coll., Civil Code, as amended (Sections 685 to 716 of the Civil Code). He stated that in the legal case of the applicant Ing. Arch. T. Z., byte, Munich, Germany, represented by Mgr. S. N., lawyer, against defendant R. P., byte Praha 5, the District Court of Prague 5 decided by judgment of 23 April 2004 No 6 C 392 / 2003-27 by rejecting the application for payment of CZK 3668 with accessories. In this case, the claimant, as the landlord of the house in which the defendant is the tenant of the apartment, requested a rent of the amount usual under Paragraph 671 (1) of the Civil Code (hereinafter referred to as "the Civil Code 'or" OZ') because, according to his claim, the amount of the rent was never agreed and until 19.3.2003 it was only formally laid down by law, but the findings of the Constitutional Court were annulled. According to the private expert's opinion, the amount of the usual rent is CZK 4839, but the defendant paid only CZK 1171 for the month of July 2003, which is why the applicant seeks payment of the difference. After taking the evidence, the Court of First Instance concluded that the application was not justified, based on the finding that the defendant was using the flat under an agreement on the use of the flat concluded on 2 May 1990. The amount of CZK 1171 paid on rent in July 2003 corresponds to the rent last determined by Decree No. 176 / 1993 Coll., on rent from the apartment and payment for transactions provided with use of the apartment, as amended. The Court of First Instance assessed those findings in accordance with Paragraph 696 (1) of the IP and stated that, in view of the fact that there is currently no law which provides for the possibility of increasing the rent for the use of an apartment within the meaning of that provision, when the general provision of the Code concerning rental cannot be applied, the applicant's claim to pay the normal rent is not justified and must be based on the last specified rent amount under Decree No. 176 / 1993 Coll. The applicant appealed against the judgment in which it argued that the decision was contrary to the conclusions of the Constitutional Court set out in its Decisions No 231 / 2000 Coll., No 528 / 2002 Coll. and No 84 / 2003 Coll., since the Court of First Instance provided protection for the unconstitutional situation and that the Court of First Instance should have brought the case before the Constitutional Court with a proposal to abolish the provision of the law establishing a conflict with the Constitution, that is, § 696 OJ. According to the applicant, the contested decision is not only contrary to constitutional law but also to the law itself; Decree No. 176 / 1993 Coll. was not an implementing regulation on the Order, but a regulation issued under Act No. 526 / 1990 Coll., on Prices. Paragraph 696 (1) of the OJ was never fulfilled, which was also stated by the Constitutional Court in its finding. Therefore, according to the applicant, Paragraph 696 of the AZ cannot be applied if there is no legal standard implementing it, and the court should have acted in accordance with § 671 (1) of the AZ and determined the amount of the rent as normal.

The Court of Appeal, after repeating some of the evidence, concluded that it was appropriate to proceed under Paragraph 109 (1) (c) of the Civil Code. The evidence provided shows that in the present case it is not a matter of determining the rent as a condition for the conclusion of a new lease to an apartment, where, in the absence of implementing special rules provided for in § 696 (1), it is possible to base the normal rent under § 671 (1) OJ. In fact, the lease agreement was duly concluded between the legal predecessor of the applicant and the defendant, including the rent provided for by the rent decree previously in force, which also provided for the rent regulation. The claimant, as the legal successor to the previous owner, entered into all the rights and obligations of the lessor resulting from the concluded lease contract. This conclusion does not alter the fact that Decree No 176 / 1993 Coll., as well as other regulatory provisions, were repealed by the Constitutional Court. In the present case, the applicant's claim must be considered as a claim for a unilateral increase in the rent previously established and, since it is a legal assessment of the case, the court is not bound in that regard by a proposal by the applicant which rejects that application of the right. For this reason, the Court of First Instance correctly ruled in accordance with § 696 (1) of the OJ, but it came to the wrong conclusion when it found that the action had to be dismissed for lack of legal regulation to the provisions of § 696 of the OJ.

The appellant further points out that, according to § 493 of the IP, the obligation relationship cannot be changed without the consent of its parties, unless otherwise provided in the Code. According to Paragraph 696 (1) of the OJ, the method of calculating the rent, the remuneration for the service provided with the use of the flat, the method of paying the flat, and the cases in which the lessor is entitled to increase the rent unilaterally, the remuneration for the service provided with the use of the flat and to amend the other terms of the lease agreement, are laid down in specific legislation. It follows from those provisions that the Act enumerates rental relations to the apartment among exceptional obligations, which may be subject to a change in liabilities also on the basis of a unilateral legal act of the creditor (the lessor). On the other hand, that exceptional character in the rights of the lessor is balanced by the fact that the lessee enjoys increased protection resulting from the special arrangements for rights and obligations arising from the rental of the flat (e.g. limitation of termination only for statutory reasons, only with the permission of the court and, in legal cases, also for compensation). In the view of the appellant, the provisions of Paragraph 696 (1) of the IP cannot be interpreted as meaning that, in the absence of a special provision, an action for payment of the increased rent should be dismissed, since such a procedure would have been the case for the protection of the unconstitutional situation established in all the above mentioned findings of the Constitutional Court. This would infringe the fundamental constitutional principle enshrined in Article 90 of the Constitution, according to which the courts are called mainly to provide protection of rights in the legal manner. Moreover, according to the Court, the principle that, in civil relations, the protection of subjective rights with reference to non-existing legal standards cannot be fundamentally refused, the court is obliged by its decision to grant fair protection to the rights of the lessor seeking increases in regulated rent.

The appellant, in the position of the Court of Appeal, was concerned about whether the dispute could be settled by means of the analogy of the law (§ 853 OJ) or the analogy of the law, and was based on the view of the plenary of the Constitutional Court expressed in Decision No 21 / 1996 [sic - ref.: correctly sp. zn. Pl. ÚS 21 / 96, Collection of Finals and Order of the Constitutional Court (hereinafter referred to as "the ECR '), Volume 7, Found No 13; published under No 63 / 1997 Coll.]. In so doing, the appellant concluded that, in the absence of a direct implementing law on the provisions of Section 696 (1) of the IP, neither the general provisions of the Code on the Lease Contract (§ 663 - 684) nor the general provisions on the obligation law (part-eighth head of the First IP) nor the provisions of other civil law could be applied by analogy in the present case, since none of them provided for the conditions under which it would be possible to unilaterally modify the amount of the lease fee without prior agreement. The appellant has consistently concluded that it is not possible to follow Act No. 526 / 1990 Coll., on Prices, since that law does not lay down any conditions under which the validity of a unilateral act by the lessor to increase the rent could be assessed. Such conditions could only be laid down by the relevant civil law, with the Court of Appeal fully referring to the legal analysis which the Constitutional Court referred to in Case No 528 / 2002 Coll. In this respect, the appellant concluded that even with analogy, the dispute could not be resolved.

Therefore, the appellant proposed that the current unconstitutional situation be dealt with by abolishing the special section of the Code Order (§ 685 - 716 Oz), which regulates the rights and obligations of the lease. In so doing, the consistency of the whole apartment rental legislation does not allow only certain provisions to be repealed, e.g. § 696 (1) of the IP. This provision constitutes an exemption provided for in order to protect the rights of the lessor, which is balanced by increased protection of the tenant's rights at the end of the lease. In the appellant's view, the existing lease arrangements are unbalanced in the absence of implementing legislation on the provision of Paragraph 696 (1) of the AZ and one-sided advantage is the position of the lessee. It is therefore contrary to the principle of equal protection of property [Article 11 (1), second sentence, of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter '), as well as to the principle that compulsory restriction of property rights is possible in the public interest, by law and for compensation (Article 11 (4) of the Charter). At the same time, the appellant points out that it does not consider the content of the specific provisions on the rent of an apartment itself to be an unconstitutional one, but a legislative gap consisting of the fact that, even within the time limit laid down in the Decision No 231 / 2000 Coll. and even in more than 3 years, the envisaged legislation has not been adopted by the provisions of § 696 (1) OJ. The appellant is aware of the seriousness of his proposal, but it is not competent in the dispute in question to discuss whether and what social effects his proposal could have in the field of social, economic, etc. It adds that, in a particular case, the annulment of the entire special lease law would no longer allow the applicant to obtain higher rent after the defendant had paid more than that previously provided for. However, the inequality between the rights and obligations of the rental relationship in question and the apartment would be removed, since all rights and obligations arising from the rental contract to the apartment would have to be undermined by the general rules of the lease agreement as well as by the general rules of the obligation relationship and by the general provisions of the Civil Code. Any excesses in the exercise of the rights and obligations of the lease contract would have to be dealt with in court as is the case with other lease contracts.

Since the compliance of the individual provisions of the Code with the Charter is only qualified by the Constitutional Court, the Municipal Court in Prague, pursuant to Article 95 (2) of the Constitution, and Article 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the Law on the Constitutional Court '), submitted this proposal for the annulment of the special provisions on the lease of an apartment.

B.

The Chamber of Deputies of the Parliament of the Czech Republic, in its observations signed by its President, PhDr. Lubomír Zaorálk, first summarised the position of the appellant and further stated that, in 1991, an extensive amendment to the Act, published under No 509 / 1991 Coll., was approved in the framework of the reform of the rule of law, whose aim was, among other things, to express the fundamental principles of constitutional empowerment of civil rights and freedoms. This amendment included part eight, including the contested head, Section seven, fourth, named "Special provisions on the rental of an apartment." The proposal for the preparation was primarily the international treaties to which our Republic acceded and which were published in the prescribed manner. Act No. 509 / 1991 Coll. was approved by the necessary majority of Members of the Federal Assembly on 5 November 1991. Furthermore, the Chamber of Deputies gives details of other laws amending the contested provisions, namely Law No 264 / 1992 Coll. and Law No 267 / 1994 Coll. It adds that the laws have been signed by the relevant constitutional authorities and have been duly declared. In view of this situation, it expressed its view that the legislature acted in the belief that the laws adopted were in line with the Constitution and our rule of law, and that it was up to the Constitutional Court to assess the constitutionality of the contested provisions in the context of the proposal by the Municipal Court in Prague and to give its decision.

The Senate of the Parliament of the Czech Republic also first stated the procedure for the inclusion of § 685 - 716 in the Act and added that it was a monolithic block of provisions relating to the return of the classic obligation law to our civil code (part eight of the Obligatory Law - § 488 to 852). In an extensive set of paragraphs, because of the special importance of the apartment in the life of each individual and of the human society as a whole, a separate place was then reserved for the adjustment of the rental relationship to this socially sensitive secondary subject of civil relations. Paragraph 685 - 716 has been included in a single section from the point of view of the legislative and technical sector and has been taken as special provisions for those governing the rental relationship in a general position. He subsequently recalled that the rules governing the rent of the apartment were only affected twice, more significantly and last but not least by Act No. 267 / 1994 Coll. On this occasion, he pointed out that this amendment was aimed at reducing the number of strenuous conflicts in rental relations, that it had, in general, been a shift in favour of the rights of the landlord of the housing and that an indirect unilateral form of the increase in the rent was indicated in his explanatory report by the transfer of the cost of all repairs of the apartment from the landlord to the tenant.

The Senate of the Parliament of the Czech Republic, although the provisions in question were approved at a time when they had not yet been established and therefore did not participate in their approval, is aware that the criticism of rental housing does not relieve him of his involvement in the liability for the situation in this area. The Senate and the individual senators sought a constructive approach to solving problems, and on its soil it was believed that the revision of rental housing should not be restricted to the amendment of the bylaws, but that a legal basis should be established to make the overall change in the relationship of the tenant - the lessor real and legitimate (i.e. the change in the legislation should take place on wider foundations, synchronous with legislation on e.g. cooperative housing, financial support for construction and the purchase of flats, while the condition of sine qua non is a thorough analysis including broad-spectrum social discussion). That is why the Senate does not find solutions to such a serious issue in the method of mere non-conceptual interference of individual provisions in which law. The Senate also pointed out that over the last five years, three draft laws have included an arrangement under which the lessor could unilaterally adjust the rent from the apartment (as defined in Paragraph 696 (1) of the Oz), but, in the absence of political will, the legislative path has already ended in the Chamber of Deputies without the Senate being able to speak in the legislative process.

On the substance of the case, the Senate formulated the following position: there is no doubt that both the interest of the owner of the rental apartment (the landlord) and the interest of the tenant are covered by the protection of the democratic legislator. In a certain period of time, the interests of one party (regularly renters) may be preferred, but not permanently and unilaterally. The right of the lessee to a certain protection thus corresponds to the obligations of the lessor, on the other hand, provided that there is a reasonable (justified) relationship between the resources used and the objectives pursued. In other words, one part of every modern housing policy is the search for a balance between the principle of the rent protection and the principle of the ownership of the lessor, i.e. the search for a fair balance between the requirement of the company's general interest and that of the protection of the fundamental rights of the individual. According to the case law of the European Court of Human Rights, legislators are left with relatively considerable scope to address this problem: "States are granted the right to adopt laws which they consider necessary to control the use of property in accordance with the general interest. Such laws are particularly necessary and common in the area of housing, which in modern societies becomes the central issue of social and economic policy. In order to implement such a policy, legislation must have wide scope for consideration (assessment) (" margin of appreciation '), both in determining whether there is a public interest which justifies the application of guidance (control) measures and also in selecting detailed rules for the implementation of such measures. "(Mellacher and others vs. Austria, as well as Hutten-Czasska vs. Poland). Later, the Senate refers to the view of the Constitutional Court expressed in the Found No. 84 / 2003 Coll. In the next part, the Senate pays attention to the rent protection institute as the provisions proposed to derogate lead de jure to its abolition. After reminding the basic instruments used to protect the tenant as a weaker party (rent regulation and determination of taxiously defined grounds of notice) The Senate concluded that it cannot be assumed that the State would leave the housing issue entirely to the detriment of the market and abandon interference in private-law housing relations. Housing is a service to the individual sui generis, to which the State is obliged to ensure. In any direction, there will inevitably be a restriction on one constitutionally protected right at the expense of the other; therefore, it is essential to insist that all criteria characterising such protection of the tenant, which is not considered to be unconstitutional, are met by the implementation of a state policy (if it pursues a legitimate objective, is implemented by constitutionally conformative means, is regarded as an exceptional measure, it is a limited public intervention).

As regards the specific provisions of the Code relating to the rental of an apartment, the Senate states that, although the whole section on the lease of an apartment ideally prefers the protection of the tenant, among them are a number of those which have a "neutral" character and respond only to the various legal situations associated with the use of the apartment (e.g. joint rental of the apartment), and there are also provisions designed exclusively for the benefit of the lessor (obligation of the lessee to pay for minor repairs and the cost of normal maintenance of the apartment, the lessor's right of entry into the apartment, etc.). The Senate therefore considers that the provisions of § 685 to 716 must be seen as a complex of rules governing the rights and obligations of a specific object - an apartment. If the object of the company's interest (apartment or rental housing) is specific, special arrangements are undoubtedly needed to regulate non-normally substitutable situations. The Senate concludes that the attribute of the specificity of the adjustment in question is fully justified and is poorly tolerated with any smooth substitutability under the general provisions on the lease.

C.

The Constitutional Court requested further opinions when assessing the reasons for the application, namely the bodies concerned:

- Ministry of Regional Development,

- Association of tenants of the Czech Republic,

- Civil association of owners of houses, flats and other properties of the Czech Republic.

The Constitutional Court excludes the following information from their content:

(a) Ministry of Regional Development

The Ministry fundamentally disagrees with the proposal and stated that both the government and Members of the Parliament's initiative submitted to the Chamber of Deputies several proposals for new laws aimed at dealing with rent from apartments; However, the Chamber of Deputies has not given its consent to any of them. Furthermore, the Ministry recalled that the problem raised by the appellant is currently addressed by the government bill on unilateral increases in rent from the apartment, whose effectiveness is proposed on 31 March 2006.

b) Association of tenants of the Czech Republic

The association of tenants of the Czech Republic (hereinafter referred to as "the association ') considers the proposal to be fundamentally unacceptable, as its compliance would lead to unjustified and profound interference in the rights and obligations of citizens without any adequate" compensation', to the disappearance of a number of legal institutes which define the rights and obligations of citizens, which would clearly create considerable legal uncertainty. It also pointed out that the failure to adopt the legislation provided for in Article 696 (1) of the Code could hardly be replaced by the procedure of the Court of First Instance if the limits between the separate judicial and legislative powers were not to be removed. The association considers it curious that the appellant asks for the termination of the provision on the lease of an apartment, but at the same time stresses that it does not consider these provisions to be unconstitutional, that its aim is to "provoke" the legislature to resolve legal relations concerning the lease of an apartment. The proposal is not eligible to comply with this intention, because the provision of Section 696 (1) of the Code is the only provision which allows unilateral increases in rent (even under conditions to be regulated by a specific law). The association also requests that the legislation foreseen by Article 696 (1) of the Code be adopted, but considers that it is completely excluded in order to do so without a "positive 'regulation. The association requested that the application be rejected.

c) Civil association of owners of houses, flats and other properties of the Czech Republic

The Civil Association of Owners of Houses, Apartments and Other Real Estate of the Czech Republic ("Owners Association ') provided the Constitutional Court with a detailed opinion including extensive annexes. In particular, it stressed that in Czech law, the right to housing is not logically understood as a fundamental human right, unlike the right of ownership, and referred to the classification of rental relationships, including the regulation of rental in the Constitutional Court's findings. The Association of Owners considers the proposed annulment of § 685 - 716 of the Code as a measure which would significantly help to remedy or eliminate the excessive unconstitutional communist relinquishment, i.e. the consequences of the legislation on the so-called personal use of flats; the existing legislation on protected rent - in his opinion - is grossly above normal, in Europe normal limits of rental law. In the next part of the opinion of the association of owners, the most fundamental and contentious rental-protected institutes were:

- the establishment of a relationship not on the basis of voluntary or contractual freedom of the parties,

- the inheritance of the rental relationship with the housing belonging to other entities,

- the lessee's authority to dispose of an apartment which does not belong to him, even in the case of leaving the apartment,

- the possibility of termination of the apartment in accordance with the free will of the lessor, while the lessee is granted this unlimited right,

- the obligation of the former landlord to provide an equivalent replacement apartment for former tenants

and formulated detailed arguments for them. On the basis of their recap, it concludes that tenants in apartments with a protected regulated lease (for an indefinite period) can apply the entire ownership triad to the apartment and use the apartments unrestricted for often ridiculously low remuneration and argues that the owner does not have any right of disposal since he cannot freely terminate the lease of his apartment and rent his apartment freely. Therefore, taking into account the way in which the lease is created, the contested provisions consider that it is such a fundamental interference in the rights of owners that, in summary, they are no longer in conformity with the constitutional protection of property rights.

As regards the actual nature of the problem of the owners' association, it pointed out that the above-mentioned regulated rent is not sufficient for the costs of simple reproduction of the rented apartment, let alone improving it, or obtaining a reasonable return, and referred to the accompanying documents of the professional institutions. These sources agree that the costs of simple reproduction range from 2,7% to about 4% of the actual replacement price per year; According to the Ministry of Local Development, the average regulated rent is currently equal to about 1.2% of the current replacement price of the apartment per year.

The Association of Owners considers the current situation to be legally, economically and nationoeconomically poor by adjusting the lease of apartments in the Civil Code. It states that the protected leases under the regime of the contested part of the Civil Code with a lease amount in accordance with the repealed rental regulations are applied in about 17% of the housing fund, i.e. about 740 000 flats, of which less than 300 000 flats are in private owners' houses. Therefore, at the conclusion of the opinion, it makes a variant of three recommendations:

(a) If the Constitutional Court fully accedes to the annulment of the entire legislation governing the rent of an apartment, nothing will happen that cannot be resolved under the general lease arrangements; This also requires the State to resolve the problem with new legislation.

(b) It is clear that certain provisions in the context of the housing lease arrangements are neutral from the point of view of fundamental human rights; therefore, the association of owners considers that it would be sufficient for the Constitutional Court to abolish only the constitutional provisions, namely the last sentence of § 685 (1), § 696 (1), § 706, 708, 712, 712a, 713 and § 715 of the last sentence.

(c) If the Constitutional Court would like to minimise its intervention, it would be possible to abolish only the most important and problematic provision, which is currently the last sentence of § 685 (1), § 696 (1) and § 711 of the Code.

The civil association of owners of houses, flats and other immovable property of the Czech Republic has requested to be granted the status of intervener by analogy pursuant to Section 76 (3) of the Constitutional Court Act. This request was not decided by the Constitutional Court because the analogous application of that provision is not covered by the annulment procedure or part thereof.

D.

From the file of the District Court for Prague 5 sp. zn. 6 C 392 / 2003 The Constitutional Court found that there was a procedure in which the plaintiff, as the landlord of a particular apartment in Prague 5, sought to impose an obligation on the defendant as the tenant of this apartment to pay him the amount corresponding to the difference between the amount of the usual rent (according to the expert opinion) and the amount paid for the month of July 2003. The complainant argued, however, that the defendant had created a lease from the law by transforming the personal use of the apartment and that the amount of the rent had not been agreed between the parties. Following the annulment of the statutory legislation on the regulation of rent by the Constitutional Court, the claimant sought to agree on a fair amount of rent, the defendant did not accept his application. The Court of First Instance dismissed the action when it found out that there was a lease between the parties based on an agreement on the use of the apartment from 2.5.1990, that the lessee paid a rent for the use of the apartment corresponding to the amount last laid down in Decree No. 176 / 1993 Coll., which was annulled by the Constitutional Court Act No. 231 / 2001 Coll. (sic - note: correctly No. 231 / 2000 Coll.) with effect from 31.12.2001, and that the action was not justified. Among the parties, the question of the amount of the rent for the use of the apartment was disputed, while the court noted that there is currently no law establishing the issue of the rent for the use of the apartment. In view of this lack of legal regulation, when, on the one hand, the provision of the Order of the Law refers to a special provision, which does not exist, and on the other hand, the application of the general provision of the Code of the Law on Rent (§ 671 of the Code) is not possible, the Court concluded that the provision of § 969 (rightly to be 696) of the Code is necessary to apply to the legal relationship in question, with the fact that the amount of the rent was determined by decree on the last day before its annulment. If the lease relationship between the participants then continued, the court concluded that the amount of the rent provided for by the Decree on the date of its annulment was the current rent level. Although the court sees a considerable inequality in the relationship between the lessor and the lessee, when the rent last established in 2001 does not correspond to the situation which was in July 2003, at least in view of the increase in the necessary maintenance and management costs of the property, it did not agree with the applicant's view that the current rental amount was contrary to Act No 526 / 1990 Coll., on prices, since this provision does not apply to the case. For the purpose of complying with the action, the Court also found that the claimant contesting the level of rent with good manners, since the existence of an infringement of good manners only allows the legal protection of the exercise of the law to be denied, not to establish or alter legal relations in any way.

The applicant brought an appeal against the first-degree judgment, in which he objected to the judgment under appeal with constitutional law and with the law; It pointed out that the judgment is contrary to the findings of the Constitutional Court. The Court of Appeal examined the contested decision and the proceedings before it and concluded that it was appropriate to apply Article 109 (1) (c) of the Civil Code. By order of 21.2.2005 No 18 Co 383 / 2004-44, the Constitutional Court decided to stay the proceedings until the decision of the Constitutional Court on its application to abolish the special provisions of the Law on the Hire of Apartment. In doing so, he stated that he did not regard the dictation of these provisions as unconstitutional, but as a lodgement in the legislature that the legislation envisaged by law was not adopted by the possibility of increasing the rent by a unilateral legal act of the lessor.

E.

1.

The Constitutional Court is required - in accordance with Paragraph 68 (2) of the Law on the Constitutional Court - to first examine whether the law, the unconstitutionality of whose provision is contested, has been adopted and issued within the limits of the Constitution laid down by competence and in a constitutional manner. The appellant seeks annulment of § 685 - 716 of the Code. These are provisions which were not part of the original version of the Act No. 40 / 1964 Coll., which took effect on 1 April 1964; was incorporated into it only at the beginning of the 1990s as a result of the amendment carried out by Act No. 509 / 1991 Coll., amending, supplementing and adapting the Civil Code, with effect from 1.1.1992, in the form of special provisions concerning the lease of an apartment in Part Eight, Title Seven, Section 4 (Note: taking into account the scope of the text, this text is not included in the grounds for the finding).

Since Law No 509 / 1991 Coll. was adopted during the period of validity of the previous constitutional regulation of the legislative process and the division of legislative competence between the then Czechoslovak Federation and the Republic, the Constitutional Court did not assess the fulfilment of the condition of whether it had been accepted and issued within the limits of the Constitution established competence and in a constitutionally prescribed manner. For legislation issued before the Constitution becomes effective, the Constitutional Court examines - according to settled case-law - only their content compliance with the existing constitutional order and not the constitutionality of the procedure of their formation and observance of standard competence (cf., for example, the finding in the case sp. zn.

2.

With effect from 1 January 1993, some of the provisions in question have been granted minor adaptations, pursuant to Act No. 264 / 1992 Coll., amending and supplementing the Civil Code, repealing the Law on State notaries and proceedings before state notaries (notaries) and amending and supplementing certain other laws.

(a) in Paragraph 707 (2), the words "state notaries" have been replaced by "court,"

(b) Paragraph 711 (1) was supplemented by the following point (i):

"(i) if there is a special destination or an apartment in a special destination and the lessee is not a disabled person.";

(c) Paragraph 711 includes the following paragraph 4:

"(4) Where there is a special destination or an apartment in a special destination, the lease referred to in paragraph 1 may be terminated only after the prior agreement of the person who has set up such an apartment or its legal successor or the consent of the competent authority of the Republic, which, under the laws of the national councils, has recommended the conclusion of a contract on its lease. ';

Since Law No 264 / 1992 Coll. was also adopted during the period of validity of the previous constitutional regulation of the legislative process and division of legislative competence, the Constitutional Court did not assess whether it had been accepted and issued within the limits of the Constitution established competence and in a constitutionally prescribed manner (see above).

3.

With effect from 1 January 1995, a further amendment was made to the provisions in question by Act No. 267 / 1994 Coll., amending and supplementing the Civil Code.

(a) Paragraph 685 (1) reads as follows:

"(1) The lease of the apartment is made by a lease by the lessor for the lease of the apartment for a specified period or without determining the period of use. The rent of the apartment is protected; the lessor may denounce it only for the reasons set out in the law. ';

(b) Paragraph 686 (1) reads as follows:

"(1) The lease contract shall include the designation of the apartment, its accessories, the extent of its use and the manner in which the rent is calculated and the remuneration for the performance associated with the use of the apartment or its amount. The lease contract shall be in writing. ';

(c) Paragraph 692 (3) is inserted after paragraph 2:

"(3) The lessee shall be obliged, after prior written notice, to allow the lessor or his authorised person to install and maintain the heat, hot and cold water measuring and control equipment, as well as the deduction of the measured values. It shall also be obliged to allow access to other technical installations if they are part of the apartment and belong to the lessor. ';

(d) The following sentence was added at the end of Paragraph 694: "In the event of a breach of this obligation, the lessor is entitled to require the lessee to remove the modifications and changes made without delay."

(e) In the first sentence of Article 706 (1), for the words "daughter-in-law, who" entered the words "shall prove that" and in the second sentence, for the words "nutrition, if" the words "shall prove that."

(f) In § 709, the words "apartments permanently designated as."

(g) In Article 710 (3), part of the sentence behind the semicolon was deleted.

(h) Paragraph 711 (1) (b) reads as follows:

"(b) if the lessee has ceased to work for the lessor and the lessor needs a service apartment for another lessee who will work for him;"

(i) At the end of Paragraph 711 (1) (h), the words "or uses it only occasionally for no serious reason;"

(j) Paragraph 711 is added to paragraph 5 as follows:

"(5) If the lessor has not used the vacancy for the purpose for which the court has authorised the termination of the lease without serious reasons, the lessor may decide, on the basis of a proposal from the lessee, that the lessor is required to pay the lessee who made the vacancy, the removal costs and other costs associated with the necessary adjustment of the replacement apartment. The court may also order the lessor to pay the lessee a difference in the amount of the rent from the previous apartment and the replacement apartment for up to five years, starting from the month in which the lessee moved to the replacement apartment, but not until the lessee has terminated the lease of the replacement apartment. The right of the lessee to pay the difference in rent shall not be limited in five years. Other requirements of the lessee are not affected. '

(k) Paragraph 712 reads as follows:

„§ 712

(1) The housing refunds are surrogates and surrogates.

(2) The replacement apartment is an apartment which, according to size and equipment, provides human decent accommodation for the tenant and members of his household. If the lease is terminated by the lessor's notice of termination on the grounds set out in Article 711 (1) (a), (b), (e), (f) and (i), the lessee shall be entitled to a replacement apartment which, under local conditions, is substantially equivalent to the apartment to be cleaned out (adequate replacement apartment). The court may, for reasons of special consideration, decide that the lessee has the right to a replacement flat on a floor area smaller than the vacancy. If the lease ratio of the lessor's termination for the reasons set out in Article 711 (1) (b) has ended and the lessee has ceased to work for the lessor without serious reasons, it is sufficient to provide shelter for the removal; the court may decide that, for reasons of special consideration, the lessee shall have the right to a replacement apartment of a smaller floor area, lower quality and less equipped, or, where appropriate, an apartment outside the municipality than the vacancy, or the right to a replacement accommodation.

(3) In the cases referred to in Article 705 (2), first, it is sufficient for the divorced husband, who is obliged to vacate the apartment, to provide alternative accommodation; However, for reasons of special interest, the court shall decide that the divorced spouse is entitled to a replacement apartment. In the cases referred to in Articles 705 (1) and 705 (2), second sentence, a divorced husband shall be entitled to a replacement apartment; the court may, if the grounds for special consideration are therefore appropriate, decide that the divorced spouse is entitled only to alternative accommodation.

(4) Replacement accommodation means an apartment of one room or a room in a free house or rental in an furnished or unfurnished part of another tenant's apartment.

(5) If the lease ratio of the lessor's notice pursuant to § 711 (1) (c), (d), (g) and (h) has ended, it is sufficient to provide shelter for the removal. If the family is with underage children and the lease ratio of the lessor's statements has ended in accordance with Article 711 (1) (c) and (d), the court may decide, if special considerations are appropriate, that the lessee is entitled to a replacement accommodation or a replacement apartment. A shelter means a provisional until the tenant has arranged proper accommodation and space for storage of his apartment and other household and personal items.

(6) If the lessee is entitled to an apartment refund, the lessee shall not be obliged to move out of the apartment and to vacate the apartment until the corresponding apartment refund is secured; joint tenants shall be entitled to only one housing refund. ';

(l) A new Section 712a was inserted for Section 712, which reads:

„§ 712a

In the period between the termination of the lease and the last day of the time-limit for the removal of the flat, the lessor and the person whose lease ended shall have rights and obligations to the extent corresponding to the provisions of Sections 687 to 699 and, mutatis mutandis, Sections 700 to 702 (1). '

(m) Paragraph 713 (1) reads as follows:

"(1) If, after the death of the tenant or after the divorce of his marriage, the spouse or, where appropriate, the persons referred to in Article 706 (1) are using the service apartment, they shall not be obliged to move out of the apartment until they have been provided with an adequate replacement. This is also the case if the tenant of the service apartment leaves the household permanently. In justified cases, the court may decide that a replacement flat is sufficient for a smaller floor area, a lower quality and less equipped, or an apartment outside the municipality than a vacated flat or a replacement accommodation. '

(n) In the second sentence of Paragraph 714: "The tenant of the cooperative's flat shall not be obliged to move out of the flat unless he is granted a refund under the conditions laid down in Section 712."

(o) Paragraph 719 deleted paragraph 2. Paragraphs 3 and 4 shall become paragraphs 2 and 3.

Act No. 267 / 1994 Coll. was published in the volume of 79 / 1994 Collections of laws, which was distributed on 30 December 1994. From the electronic library of the Chamber of Deputies of the Parliament of the Czech Republic, the Constitutional Court found that the bill was submitted to the Chamber of Deputies as a government proposal on 26 August 1994 and distributed to Members as a print 1125. The proposal was adopted at the 25th session of the Chamber of Deputies on 15 December 1994 by Resolution No 536, when of the 163 Members present there were 96 for, 32 against, 33 abstentions, 2 did not vote.

On 16 December 1994, the law was delivered to the President for signature. The President signed the Act on 22 December 1994.

The Constitutional Court therefore found, within the meaning of Article 68 (2) of the Law on the Constitutional Court, that Act No. 267 / 1994 Coll., amending and supplementing the Civil Code, was adopted and issued within the limits of the Constitution of the Czech Republic laid down by the legislative competence of the Parliament of the Czech Republic and in a constitutionally prescribed manner.

4.

Following the amendments made, the classification of the contested provisions shall be as follows:

„ČÁST OSMÁ

HLAVA SEDMÁ

ODDÍL ČTVRTÝ: Zvláštní ustanovení o nájmu bytu

§ 685

(1) The lease of the flat is made by a lease by the lessor to the lessee for the rental of the flat for a specified period or without determining the period of use. The rent of the apartment is protected; the lessor may terminate it only for the reasons set out in the law.

(2) The lease agreement for the lease of the cooperative flat can be concluded under the conditions laid down in the housing cooperative's statutes.

(3) The laws of the national councils shall determine what shall be understood as a service apartment, a special destination apartment and an apartment in the special destination houses and under which conditions a lease contract may be concluded on the rental of a service apartment, the rental of a special destination apartment and the rental of an apartment in the special destination houses.

§ 686

(1) The lease contract shall include the designation of the apartment, its accessories, the extent of its use and the manner in which the rent is calculated and the remuneration for the performance associated with the use of the apartment or its amount. The lease must be in writing.

(2) If the lease period is not agreed, the lease contract shall be deemed to have been concluded for an indefinite period.

Rights and obligations of apartment rental

§ 687

(1) The lessor is obliged to hand over to the lessee an apartment in a condition suitable for proper use and to ensure that the lessee has full and uninterrupted exercise of the rights associated with the use of the apartment.

(2) If the lease contract does not provide otherwise, small repairs in the apartment related to its use and the costs of normal maintenance are borne by the lessee. The concept of minor repairs and costs associated with the normal maintenance of the apartment is regulated by a separate regulation.

(3) The rights and obligations of the lessee - a member of the cooperative - as regards the implementation of minor repairs in the flat and the reimbursement of costs associated with the normal maintenance of the flat are regulated by the statutes of the cooperative.

§ 688

The tenants of the apartment and persons living with the tenant in the common household have, in addition to the right to use the apartment and the right to use the common premises and facilities of the house as well as to enjoy the services which are associated with the use of the apartment.

§ 689

The tenant is obliged to use the apartment, common areas and facilities of the house properly and properly to enjoy the services which are associated with the use of the apartment.

§ 690

In the exercise of their rights, tenants are obliged to ensure that an environment is created in the house to ensure that other tenants exercise their rights.

§ 691

If the lessor fails to fulfil his obligation to remove defects preventing the proper use of the apartment, or where the performance of the lessee's right is compromised, the lessee shall have the right, upon prior notice by the lessor, to the extent necessary, to remove the defects and to require them to reimburse the costs effectively incurred. The right to compensation must be exercised by the lessor without undue delay. The right shall cease if it has not been exercised within six months of the removal of the defects.

§ 692

(1) The lessee shall notify the lessor without undue delay of the need for those repairs in the apartment to be carried out by the lessor and allow them to be carried out; otherwise be liable for damage caused by failure to fulfil this obligation.

(2) If the lessee does not take care of the early repair and routine maintenance of the apartment, the lessor shall have the right to do so after prior notice of the lessee on his own cargo and to request compensation from him.

(3) The lessee shall be obliged, after prior written notice, to allow the lessor or his authorised person to install and maintain the heat, hot and cold water measuring and control equipment, as well as the deduction of the measured values. It is also obliged to allow access to other technical installations if they are part of the apartment and belong to the lessor.

§ 693

The tenant is obliged to remove defects and damage caused by the house itself or by those who live with it. If this is not the case, the lessor shall have the right, after prior notice of the lessee, to remove defects and damage and to request compensation from the lessee.

§ 694

The lessee shall not make modifications to the building or any other material change in the apartment without the consent of the lessor, even on his own cargo. In the event of a breach of this obligation, the lessor shall be entitled to require the lessee to remove the modifications and changes made without delay.

§ 695

The lessor is entitled to make building modifications to the apartment and other substantial changes in the apartment only with the consent of the lessee. This consent can only be refused for serious reasons. If the lessor makes such adjustments at the request of the competent authority of the State, the lessee shall be obliged to allow them to be implemented; otherwise be liable for damage caused by failure to fulfil this obligation.

Rent and remuneration for the services provided with the use of the apartment

§ 696

(1) The method of calculation of the rent, the remuneration for the service provided with the use of the flat, the way in which it is paid, as well as the cases in which the lessor is entitled to unilaterally increase the rent, the payment for the service provided with the use of the flat and to amend the other terms of the lease, are laid down in specific legislation.

(2) Reimbursement for the supply provided with the use of the flat or advance payment on it shall be paid together with the rent, unless otherwise agreed by the parties or by law.

§ 697

If the lessee does not pay the rent or payment for the service provided with the use of the apartment within five days of its due date, the lessee shall be obliged to pay the hire fee for the lease.

§ 698

(1) The tenant is entitled to a reasonable discount on the rent until the lessor, through his notice, removes a defect in the apartment or house which significantly or for a longer period of time aggravates their use. The right to an appropriate discount on the rent shall be granted to the lessee even if the transactions associated with the use of the flat have not been provided or were made defective and if the use of the apartment has consequently deteriorated.

(2) The same right is granted to the lessee if building modifications in the house significantly or for a longer period deteriorate the conditions of use of the apartment or house.

(3) The lessee shall have the right to a reasonable discount on the payment of the service provided with the use of the flat if the lessor does not provide it properly and in time.

§ 699

The right to a discount on the rent or payment for the performance provided with the use of the flat shall be exercised with the lessor without undue delay. The right shall cease if it has not been exercised within six months of the removal of the defects.

Joint apartment rental

§ 700

(1) The apartment can be shared by several persons. Joint tenants shall have the same rights and obligations.

(2) The joint lease is also established by agreement between the previous tenant, another person and the lessor.

(3) In a co-operative's apartment, joint rent can only arise between husbands.

§ 701

(1) Normal cases relating to the joint lease of an apartment can be dealt with by each of the common tenants. All consent shall be required in other matters; otherwise the legal act is invalid.

(2) Legal acts relating to the joint lease of an apartment shall entitle and require all joint tenants jointly and severally.

§ 702

(1) If there is disagreement between joint tenants on the rights and obligations arising from the joint lease of an apartment, the court shall decide on a proposal from one of them.

(2) The Court of First Instance may, in cases of special consideration appropriate to the application of a common tenant, abolish the right of joint lease of an apartment if the latter is in a state of unfounded state which prevents the joint use of an apartment by common tenants. It will also determine which of the common tenants or which of them will continue to use the apartment.

Joint rental of the husband's apartment

§ 703

(1) If, during the marriage, the spouse or one of them becomes tenants of the apartment, the joint lease of the husband's apartment shall be made.

(2) If only one of the spouses for the duration of the marriage has the right to conclude a contract on the lease of a cooperative flat, the joint lease of the spouse's apartment and the joint membership of the spouses in the cooperative shall be established; of this membership, both spouses are entitled and required jointly and severally.

(3) The provisions of paragraphs 1 and 2 shall not apply if the spouses do not live together permanently.

§ 704

(1) If one of the spouses is a tenant of an apartment before the conclusion of the marriage, the two spouses will be jointly rented by marriage.

(2) The same applies if, before the marriage of one of the spouses, the right to conclude a contract on the lease of a cooperative flat arises.

§ 705

(1) If the divorce of a spouse fails to assess the lease of an apartment, the court, acting on a proposal from one of them, shall decide that the right of joint lease of an apartment shall be revoked. At the same time, it will determine which of the spouses will continue to use the apartment as a tenant.

(2) If one of the divorced spouses has acquired the right to conclude a contract for the lease of a cooperative flat before the conclusion of the marriage, the right of joint lease of the flat shall cease to exist by divorce. the right to use the apartment remains the one of the husbands who acquired the right to rent the apartment before marriage. In other cases of joint lease of a cooperative flat, the court shall decide, if the divorce is not assessed by the spouses, on the application of one of them to abolish that right, as well as which of them will be the tenant of the apartment as a member of the cooperative; the joint membership of divorced spouses in the cooperative will also cease.

(3) When deciding on the further lease of an apartment, the court shall take account in particular of the interests of minors and the opinion of the landlord.

Transfer of apartment rental

§ 706

(1) If the lessee dies and does not have a common spouse, the lessees (joint tenants) become his children, grandchildren, parents, siblings, son-in-law and daughter-in-law who prove that they lived with him on the day of his death in the common household and do not have their own place. The tenants (joint tenants) also become those who cared for the common household of the deceased tenant or were dependent on him for maintenance if they prove that they lived with him in the common household for at least three years before his death and do not have their own apartment.

(2) If a tenant of the cooperative's apartment dies and does not have a joint spouse's rent, the lessee's death passes over his membership of the cooperative and the lease of the apartment to the heir to whom the member's share was attributed.

§ 707

(1) If one of the spouses who were joint tenants of the apartment dies, the sole tenant becomes the surviving spouse.

(2) If they go for a co-operative's apartment, one of the husbands' deaths will be destroyed by the joint rent of the husband's apartment. If the right to a cooperative apartment was acquired during the duration of the marriage, the surviving spouse shall remain a member of the cooperative and have a member's share; the proceedings for inheritance shall be taken into account. If a husband who has acquired the right to a cooperative apartment before the conclusion of the marriage dies, his death shall pass on to the member of the cooperative and the lease of the cooperative apartment. If there are more subjects of rent, the member of the deceased may switch to more heirs.

(3) If one of the joint tenants dies, his right to the other joint tenants passes.

§ 708

Paragraphs 706 (1) and 707 (1) shall also apply where the lessee leaves the household permanently.

§ 709

Paragraph 703 to 708 shall not apply to service dwellings, special purpose dwellings and apartments in special purpose dwellings.

Termination of apartment rental

§ 710

(1) The lease of the apartment will cease by written agreement between the lessor and the lessee or by written notice.

(2) If the rent of the apartment has been arranged for a certain period of time, it will also end at the end of that period.

(3) The written statement shall state the period within which the lease is to end, at least three months in order to end at the end of the calendar month.

Citation	The Constitutional Court found No. 252 / 2006 Coll., on the application for annulment of the provisions of § 685 to 716 of Act No. 40 / 1964 Coll., Civil Code, as amended
Regulation Type	The Constitutional Tribunal found
Author	-
Collection	Code of Laws

Date of Promulgation	02.06.2006
Effective from	-
Effective until	-
Status	Valid

The Constitutional Court found no 252 / 2006 Coll.

The Constitutional Court found of 28 February 2006 on the application for annulment of the provisions of § 685 to 716 of Act No. 40 / 1964 Coll., Civil Code, as amended

Contents

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