227/2009 ΕΤ DOOD (503010)
(EFAD 2009/1201)
Commercial lease in border area. Special legislative framework concerning
the conclusion of legal acts in border areas (law 1892/1990). Year
termination of this lease. A lease beyond six years is absolutely void.
Characterization of the contract concluded after the expiry of the previous one.
Judgment that the lessee is obliged to pay the rent after it has expired
six years, even if the contractual lease term was set as the greater of it.
(See comments K. Voulgari, EFAD 2009, 1204).
EfDodec 227/2009
President: E. Lagoudianaki
Speaker: K. Makris
Lawyers: Io. Karamichalis, G. Vardelis
Single-member Court of First Instance of Rhodes which was issued against the parties on
special procedure for lease disputes (articles 647 to 662 of the Civil Code) has
be lawfully exercised, as long as the defendant is not served (articles 495,
518 par. 1 of the Civil Code). It must therefore be formally accepted and researched for
the admissibility and validity of her reasons (article 533 par. 1 of the Civil Code). Typically
the additional grounds of appeal which
were legally exercised according to article 520 par. 2 of the Civil Code and therefore must
be tried together with the appeal and they should also be investigated for admissibility and
their validity (article 533 par. 1 of the Civil Code).
The appellant-lessor in his action of 28.3.2007 against Monomelos
Court of First Instance of Rhodes explained that by virtue of the private from 17.8.1994
lease had leased to the defendant the detailed description
lease, in order for the latter to use it as a sales outlet
fur and leather items as well as goldsmithing items. That the conventional
time duration of the lease was originally set for the time period from
1.11.1994 to 30.10.2000 and that by virtue of the private
of the agreement, 30.10.2006 was defined as the expiry date of the lease. That the
contractual term of the lease ended on 30.10.2000 given that
for after the initial six-year period it is absolutely void,
due to the fact that the required permission from the commission was not obtained after six years
of article 26 of Law 1892/1990, since the rent is located on borders
area. Based on this background, he requested that the defendant be obliged to
assign the use of the leased property. The Court of First Instance with
appealed decision accepted the lawsuit as substantively valid and
obliged the defendant to assign to the plaintiff the use of the lease
shop. The appellant and the defendant are complaining against this decision
his appeal and its additional grounds and for those referred to therein
reasons requests that the appealed decision disappear, so that it is rejected at
totality of the defendant's action.
Law 1892/1990 in chapter B entitled "Liquidations in border areas
area" after articles 24 par. Ia, 25 par. 1, 26 par. 1 and 30 thereof defines the
following: "For the implementation of this law, border areas are defined
the following: a) The prefectures of Florini ... Dodecanese ... (article 24). It is prohibited
any deed during life by which it is recommended in favor of individuals or legal entities
persons any real or tortious right concerning immovable documents
in the border areas. Contracts are excluded from the prohibition
parental allowance, leases up to six years, public distribution limit regulations
and the contracts for the transfer of percentages indivisible between contemporaries (art
25 par. 1). Of course, legal entities of Greek citizenship and expatriates in
which include Cypriots, as well as natural or legal persons who
have the citizenship of one of the member states of the European Communities,
par. 1 of the previous article may request the lifting of the ban
with their application which must also state the purpose for which it will
use the property (article 26 par. 1). This application is submitted to
commission recommended ... in each law by decision of the prefect ... (article 26
par. 1b). The ban is lifted by a decision of the committee (article 26 par. 1c).
Actions entered into in violation of the provisions of this law
are absolutely void (article 30 section a). They are deduced from these provisions
among others, the following: 1. In principle, legal action during life, either
unilateral, whether a contract, whether tortious or in rem that has the object of
recommendation in favor of natural or legal persons, nationals or foreigners, anyone
of real or tortious rights over immovables, border texts
areas, including those of the Dodecanese prefecture are prohibited. 2.
But for natural persons who have Greek citizenship or the citizenship of one of them
member states of the European Communities or for legal entities that have the
their headquarters in Greece or in a member state of the European Community,
as well as for expatriates, the above prohibition is lifted and it is possible
claim of real or tortious rights over immovable texts in
border areas by decision of the prescribed competent Committee which
issued at the request of the person concerned in which he must
the owner for whom the property will be used is also mentioned. 3.
Exceptionally, it is permitted by the above persons to enter into legal transactions with the above
areas without restrictions in the cases mentioned in article 25
par. 1, among which are also included the time leases
up to six (6) years old. 4. Any legal act that falls under the prohibition, h
which is entered into without the previous removal of it, i.e. without being received before
from its preparation, the relevant permission of the Commission is considered to have been done against
violation of the provisions of this law and is absolutely void. Cat
sequence of the above for the validity of the more than six-year property lease,
located in a border area such as the island of Rhodes, in view of the fact that
prior permission of the committee is not required for the first six or
less than six years of duration and operation of the lease and if the
permission obtained during the time the lease is in force and
valid i.e. before the expiration of six years it becomes valid and effective n
lease also for the six-year contractual period (more precisely,
its relevant contractual duration is validated and strengthened
lease over six years). In view of the content of the above provisions
of Law 1892/1990, which have the character of public order rules in the most
intense degree, due to the, with their establishment, pursuit of supreme national
interest, inherent in securing security and territoriality
integrity of the country, these prevail over the provisions
on commercial leases of PD 34/1995, which also establish rules
of public order, but which defend a subordinate public interest. Against
consequence in the lease of properties of texts in border areas, if not
the restrictions of article 25 of Law 1892/1990 are lifted, with the receipt of the relevant
permission of the committee, of article 26 of the same law, application is excluded
of the provisions on forced extension of these, as well as those of
of articles 2 par. 8 N 2935/1994 and 7 of 6 N 2741/1999, regarding minimum duration
of the commercial leases for nine and twelve years respectively and the one concluded
lease is void for the time after the expiration of the six years (see AP
1312/2005 NoB 54,215, AP 821/2005 Law 5, EfDod 218/2006 LAW). The nullity
and this is incurable in the sense that its treatment does not occur
nor with validating declarations of will of the contracting parties, nor with any
fulfillment of obligations from a void contract, but not with the subsequent one
of the six-year period of any granting of the license (see AP 829/2005 ibid.). Further from
the provisions of articles 608 par. 2, 609 and 611 of the Civil Code, it follows that, when the
lessee after the end of the lease remains in the use of the lease, without
against the lessor, the lease is renewed and the lease against
according to the law, it is converted into an indefinite term, and against the latter
article 611 of the Civil Code, the lease renewed for an indefinite period is valid, provided
there is no contrary agreement of the parties to the terms of the old lease,
which clearly includes the term of the further contract
its duration as well as its eventual expiration (see AP 1064/1999 Hellenic Law 1999, 1562,
EfATH 190/2000 HellDni 200,837, EfDod 86/2007 LAW). All of the above for her
renewal of the contract applicable in case of termination of the lease
also apply to leases in border areas that expire before
expiration of their six-year mandatory term or its shorter term
six years of agreed time with a newer agreement drawn up on
conclusion of the lease agreement and evidenced by a document of certainty
date (article 5 par. 1 of PD 34/1995) since these leases
are converted according to the interpretative rule of article 611 of the Civil Code into the infinitive
time and are valid for six years from their preparation if after the expiry
of the shorter of the six-year duration of these the lessee continues to
makes use of the lease knowingly and without opposition from the lessee (See AP
1312/2007 LAW). However, in case of termination of the lease in a border area
because the contractual six-year period has passed, which also coincides with the
its minimum mandatory duration, as long as the restrictions have not been lifted
of article 25 of Law 1892/1990 before the expiration of six years, has not
scope of application of the above provision of article 611AK for beyond six years
period of time, since the lease for that period is absolutely void
(does not expire) not producing results. This invalidity, as was said
above, is incurable and not cured even by affirmative statements
of the will of the parties, nor with any fulfillment of the obligations by an invalid
contract and thus extension of lease after its expiry or extension void
lease is not conceivable. Further to the drawing up of a new commercial contract
lease, absolutely independent of the old one, the will of the parties for the
its training should be clear when interpreting the
on either side of declarations of intent, i.e. whether the contracting parties
draw up a new independent contract will be judged mainly by the completeness and their
terms of the new lease, the lack of reference of the parties to a previous one
their employment relationship which they undertake is still valid and binding
them as well as from the conditions and circumstances that led to them
contracting parties in drawing up the contract (See AP 1487/2006 TNP DSA, EFATH
747/2004 HellDni 2004,89, EfPatr 420/2004 TNP DSA, Appeal 3364/2000 HellDni
2003,554).
Appellant's sole additional ground of appeal alleges that erroneously
the Court of First Instance tried the legal action in the special
procedure of lease disputes, while this should be awarded against
the regular process. From the provisions of articles 574, 575, 599 and 180
AK, which, according to article 44 of PD 34/1995, are also applied to
commercial leases, it follows that, if for any reason the lease
is invalid and the lessor granted the use of the lease, he is entitled to
claims the performance of the rent from the lessee but also from the sublessee or
and the one to whom its use was granted during the special procedure
of rental disputes, in accordance with article 647 of the Civil Code according to which in
this special procedure deals with disputes arising from the lease of a thing which
refer to the delivery or performance of the use of the lease for anyone
reason. From this last provision with which the fastest exists
resolution of disputes arising between lessor and lessee and concerning
the performance of the use of the lease for any reason, it follows that
both valid and invalid differences fall under this procedure
lease agreement, since the above purpose is not distinguished in the provision
served in both cases (see 1327/2000 HellDni 43,425, AP
442/2000 HellDni 41,1354, EfATH 4702/2003 HellDni 44,1505).
Therefore, the court of first instance correctly adjudicated the legal action with
which the plaintiff requests the return of the rent due to the invoked invalidity
of the lease agreement during the special procedure of lease disputes
and this sole additional ground of appeal had to be dismissed as
unfounded.
According to article 520 par. 1 of the Civil Code the appeal document had to contain,
except for the elements and reasons required by articles 118-120
appeal, which are complaints against the appealed decision and
they refer either to the appellant's sidesteps, or to legal or factual ones
errors of the judge. The grounds of appeal had to be clear and
certain to be determined, i.e. with completeness, the objections attributed to
contested decision, while it is required that they be effective, i.e. that they act,
if they are considered valid, in the disappearance of the contested decision (See S.
Samuel, The appeal ed. 2003 par. 541,542 pp. 218-223). Besides, from
wording of the provision of article 81 par. 3 of Law 2238/1994 in which it is defined
that "Courts refrain from hearing an action for eviction of leased property, if
a certificate is not presented showing that the
rents of the property during the last two years before its adjudication
case clearly shows that the non-presentation of the relevant
of a certificate results in the inadmissibility of the discussion according to this article
of the lawsuit. However, as always accepted by jurisprudence, the
above provision, by which the discussion of the suit is prevented until
produce the aforesaid certificate, enacted to ensure
the fiscal right of the State and therefore its possible violation, i.e
despite his non-legal prosecution, non-abstention of the court from adjudication
of the action for the return of the rent does not establish a ground for appeal according to article 559
No. 14 of the Civil Code, but also no other grounds for appeal, nor from no. 1
of article 559 and 560 of the Civil Code, which refers to a violation of its rules
of substantive law and not of procedural nature provisions of tax laws
(see AP 1412/2004 HellDni 46,815, AP 859/2000 HellDni 41,1645), while during
fixed view of the Theory and jurisprudence the presentation of the relevant
certificate of article 81 par. 3 of Law 2238/1994 can be made even after
discussion of the lawsuit, even before the Court of Appeal for the first time and thus the
related to the non-presentation of the ground of appeal to the court of first instance
is rejected in advance as invalid (see EfATH 1442/1989 D 1989,287).
In this case, as appears from its procedural documents
trial before the court of first instance the plaintiff presented on 8.5.2007
i.e. on the day following the hearing of the legal action the required by the
article 81 par. 3 of Law 2238/1994 with number three 13852/8.5.2007 certificate
of the DOU of Rhodes and therefore the second ground of appeal with which the appellant
claims that the trial court erred in not dismissing as
inadmissible the lawsuit due to non-appearance during its discussion before him
the above-mentioned certificate is deemed null and void, since in any case
and in view of all the aforementioned reasons his possible admission will not
led to the disappearance of the appealed decision and had to be rejected
therefore as unacceptable.
From the appreciation of the affidavits of the witnesses examined at
audience of the court of first instance, as they are contained in
simultaneously with the appealed decision minutes of a public meeting of and
of all, without exception, the documents they legally invoke and produce
the parties prove the following facts: With the from
17.8.1994 private lease agreement the plaintiff leased to the defendant
a ground floor shop located in the old town of Rhodes and st
... no. ... with an area of 33.25 sq.m., in order to be used by
the latter as a store selling fur and leather goods as well as
jewelry and other tourist items, for a period of six (6)
years i.e. from 1.11.1994 to 31.10.2000, instead of a monthly rent of 165,000
drachmas for the first rental year increasing by a percentage of 10% for each
next lease year. On 30.11.2000 and while the defendant was still
makes use of the lease, signed between the above with the same
date "Private adjustment agreement of the 17.8.1994 contract
lease in the provisions of Law 2741/1999" in which, among other things, they refer
verbatim and the following: 1) With the lease agreement of 17.8.1994 the first of
contractors K.M. leased to the second of the contracting parties H.T., a ground floor
store text in the old town of Rhodes on the street ... no ...., from
the conditions set out in detail in the above lease agreement... 2)...
Therefore, in harmony with the above provisions, its legal duration
of this contract expires on 30.10.2006 ... 4) For the rest, from 17.8.1994
lease agreement remains as it is, its terms are still not binding
the parties as stated therein and for the period of time
of its legal term, i.e. from October 30, 2006...". THE
however, this lease was subject to the provisions of PD 34/1995 as commercial
valid and valid only for the first six years, i.e. from 1.11.1994 to
31.10.2000 in which it was fully operational and produced all the consequences
of for the contracting parties, while after the on 31.10.2000
completion of the first six years, in view of the fact that the leased shop is located
in Rhodes (Dodecanese), which is defined as a border area according to article 24
of Law 1892/1990, the said lease became absolutely void according to article 30 of
of the same above law for the period of more than six years that
it worked since 1.11.2000 and from there and this because none of the
parties to the above lease and indeed neither the plaintiff as
lessor nor the defendant as lessee, before on 31.10.2000
after the first six years, he received the required permission to lift the restrictions
by the competent committee of the prefecture according to article 26 par. 1 of Law 1892/1990
Dodecanese, a necessary condition according to what is stated in the laws
considerations herein, to make the lease valid and effective for the
beyond the six-year above period of time that he worked. The defendant
claimed before the trial court that with the above
referred to from 30.11.2000 private agreement the parties drew up new ones
a valid lease under which he legally uses the lease.
However, from the provided agreement and the experts mentioned
the above conditions do not indicate the will of the parties to draw up new ones
lease agreement, but with this agreement the parties amended
certain conditions of the initial lease agreement and indeed their
conditions for the duration of the lease and its termination, while they agreed
that according to the other conditions and agreements, the contract from 17.8.1994 will be valid.
Therefore, their agreement at the time the lease was invalid does not exist
the nature of the extension since it is not possible, but not in every case
case is a new lease, as wrongly assumed and claimed by
defendant, since such a thing does not clearly emerge from the statements on both sides
of the will of the litigants who have been included in the from 30.11.2000
private agreement. The court of first instance, therefore, with the appellant
his decision came to the same conclusion and considered definite and legal
the action, it was accepted as substantively valid and ordered the performance
to the plaintiff of the rental property, correctly applied the law and assessed them
evidence and the opposing first and third grounds of appeal
must be rejected as unfounded and no other reason for investigation exists,
the appeal must be dismissed in its entirety. Finally his court costs
respondent of this degree of jurisdiction must be imposed against him
appellant because the appeal was rejected (Article 183 of the Civil Code).
LET.
Source: Law Legal Information Network (www.lawdb.intrasoftnet.com)
