Shopping mall tenants have the last 5 days left to withdraw their offers to extend the contract for the last three lockdowns!
Tenant of a shopping mall, if you have submitted an offer under Art. 15ze of the COVID Act, for any of the last three lockdowns, you can avoid the legal consequences regarding the extension of the lease period, while not losing your rent exemption!
You can usually also withdraw from concluded annexes to the lease agreement extending the contract due to lockdowns.Introduction
As of July 23, 2021, by amendment, Art. 15 ze1 (hereinafter: New Regulation), replacing Art. 15ze (hereinafter referred to as the Current Regulation), which regulates obligations under lease, tenancy or other similar agreements under which commercial space is put into use.
However, in this article we will focus not on the mechanism of the new article itself. 15ze1, but we will analyze the legal situation of entities that exercised the right to submit an offer under the Current Regulations, i.e. Art. 15 ze.
Transitional provisions - what about entities that have exercised the right to submit an offer under Art. 15z?
Amendments to legal acts always generate problems of an intertemporal nature - the issue of the mutual impact of repealed and introduced provisions is of key importance for the shape of legal and economic relations and the interests of entities operating in the legal space of the amended provisions.
In terms of the amendment, they raise the most questions effects of the New Regulation on entities that have exercised the rights provided for in Art. 15 ze in the form of submitting an unconditional and mutual offer to extend the validity of the contract on the existing terms and conditions for the duration of the ban extended by six months.
According to art. 7 of the draft act, which in its final form was modified in favor of the tenant, the tenant was entitled to submit a declaration of will to withdraw the offer. The provision provides for the deadline for submitting this declaration within 14 days from the date of entry into force of the amendment, i.e. from July 23, 2021. The declaration of will to withdraw the offer was to have effects from the date of its submission. If the tenant exercised the right granted to him, a kind of legal conversion would take place - instead of the mechanism provided for in Art. The mechanism under Art. had 15 entries. 15 ze1. This means that the authors of the draft act have broken the principle of non-retroactivity, enabling the application of the New Regulations to actual situations that occurred before the amendment came into force. However, the transitional provisions left it unclear how far this retroactivity should reach. To put it simply, the regulations did not specify whether a tenant could withdraw an offer submitted only in connection with the recent ban on trading in shopping malls, or whether this rule would also apply to previous administrative bans.
The adopted version of the Amendment Act differs significantly from the original draft. It particularly highlights the interests of the tenant, who is entitled to avoid the legal consequences of a declaration of will regarding the extension of the lease agreement while maintaining the legal effectiveness of the mutual termination of the mutual obligations of the parties to the agreement during the period of validity of the administratively imposed ban on conducting business activity. So the tenant may "withdraw" the declaration of will regarding the extension of the lease period, the submission of which under Art. 15ze conditioned the expiration of mutual contractual obligations at the same time without being obliged to pay rent for overdue periods.
Adopted Art. 7 of the Amending Act indicates in paragraph 1 that the declarations of will in question concern offers that tenants were entitled to submit after December 31, 2020. Therefore, the declaration of waiver of the legal consequences of extending the lease period applies to offers submitted in connection with the following periods during which an administrative ban on conducting business in shopping malls was imposed:
. November 7 – 29, 2020
December 28, 2020 – January 17, 2021
March 20 – April 9, 2021
Only the first period of the trade ban (March 20 - May 4, 2020) is not covered by this authorization. This is probably due to the fact that the legislator, by introducing Art. 15ze did not provide for further such imperative interference with economic freedom in the territory of the Republic of Poland, and therefore the extension of the lease period was to be a one-off. However, due to the lack of legislative activity of the legislator in the area of lease relations regarding space in shopping centers and subsequent lockdowns, the lease periods were further extended. Only the legislator post factum decided to correct the problematic normative regulations.
ANDrt. 7.
1. If pursuant to Art. 15 from section 2 of the Act amended in Art. 1 entitled to use the commercial space submitted an offer whose submission deadline expired after December 31, 2020, entitled, within 14 days from the date of entry into force of this Act, may waive the legal consequences of a declaration of will regarding the extension of a rental or lease agreement or another similar agreement through which the commercial space is put into use.
2. Avoiding the legal consequences of the declaration of will referred to in section 1, does not cover the expiry of the mutual obligations of the parties to the contract, pursuant to Art. 15 from section 1 of the Act amended in Art. 1, and the extension of the contract by the period that expired on the day preceding the submission of the declaration of evasion of the legal effects of the declaration of will referred to in section 1.
3. Avoiding the legal consequences of the declaration of will referred to in section 1, shall be made by means of a declaration submitted to the other party in writing.
Another issue that raised doubts regarding the original project was the possibility of applying the right to withdraw the submitted offer to situations in which the extension of the lease period was made by annexing the contract. Based solely on the linguistic (literal) interpretation, such an opportunity should have been considered impossible due to the specificity of the offer mode of concluding contracts. However, taking into account the purposive (systemic) interpretation, such a limitation could, in some cases, bear the hallmarks of unauthorized discrimination. These considerations cannot be made in isolation from the nature of the legal norms contained in Art. 15 ze. The wording of the Existing Regulations does not indicate that they are absolutely binding (ius cogens), most often the legislator emphasizes this nature with statements constituting significant legal consequences in the form of invalidity of contract provisions that are inconsistent with the letter of the act. Therefore, it should be assumed that these provisions are dispositive and therefore subject to modification by the parties, who can arrange the legal relationship according to their individual needs.
Transferring the above conclusions to the issue of applying the institutions provided for in Art. 7 of the Act amending annexed contracts, taking into account that the legislator in the adopted version does not use the concept of an offer - as it did in the draft, but the concept of declarations of will, the conceptual scope of which is much broader, applying a historical and systemic interpretation, it should be considered that the said recipe also applies to contract annexes.
Clarity regarding the above-mentioned doubts will only be brought by judicial practice, which will indicate the direction of interpretation of the amended provisions. However, tenants cannot wait until the judiciary's views crystallize before submitting a declaration of will to avoid the legal consequences of extending the lease period, because, as previously mentioned, they are subject to a 14-day deadline.
How to submit an effective declaration of will to withdraw an offer?
Pursuant to the general provisions of the Civil Code, an effectively submitted declaration of will should be deemed to include: it reached the other person (the landlord) in such a way that they could read its contents (Article 61 of the Civil Code). However, Art. 7 of the Amending Act imposes certain obligations on the tenant special requirements regarding the form and method of withdrawing a declaration of will:
1) Deadline – art. 7 section 1 of the Act introduces 14-day deadline to submit a declaration of will, running from the date of entry into force of the Act (i.e. until August 6, 2021);
2) Form – art. 7 section 3 of the Act states that a declaration of will should be submitted in writing.
Summary
The commented transitional regulation is clear focusing on the tenant's interest, which raises objections from the other party to the legal relationship - the lessors. They claim that these regulations constitute unjustified state aid. Regardless of the contestation of this legal status by landlords, tenants who have the right to avoid legal consequences should - as soon as possible - because we would like to remind you that only 5 days left (until August 6, 2021!), moreover, this deadline is irreversible – deliver an appropriate declaration of will to the lessor.
Barbara Dąbrowska *The author is a permanent member of the Law Firm's Team, an outstanding student of the Faculty of Law and Administration of the University of Białystok, winner of the first place in the Civic Education Center competition for a lawsuit under Art. 299 of the Commercial Companies Code, she participated in several scientific conferences in the field of economic law, also as a speaker. IF YOU WOULD LIKE TO KNOW MORE DETAILED ANSWERS TO YOUR QUESTIONS, PLEASE CONTACT THE AUTHORS VIA BIURO@KLODZINSKIKANCELARIA.PLAND ALSO FOR ASKING QUESTIONS ON OUR FACEBOOK PROFILE.