It is usual today to see a large number of unoccupied commercial premises in sectors that at the beginning of this year were largely commercial. This situation, as is generally known, has its root or origin in the consequences caused by the Covid-19 pandemic, which since March of this year has greatly affected the economy by causing the National Government to take measures such as mandatory isolation, closures of establishments of commerce and the prohibition of the free exercise of multiple trades, thus reducing the freedom of citizens in order to mitigate the negative effects on public health.
These measures have affected the different economic activities developed by the private sector, since it has not been able to continue operating under current conditions and they find it difficult to maintain their income, and consequently various obligations towards their workers, creditors and in general the necessary expenses for their normal support.
Faced with this situation, 2 decrees were promulgated that regulated aspects related to lease contracts:
The first of them was Decree 579 of April 15, 2020, by which “temporary measures are adopted in matters of horizontal property and lease contracts.” In this standard it is recognized that the measures taken at that time affected the generation of income and therefore the fulfillment of periodic obligations derived from lease contracts of real estate for both residential and commercial purposes, for which I propose a series of benefits focused on avoiding eviction actions and non-compliance with labor and contractual obligations of horizontal properties.
The second was Decree 797 of June 4, 2020, by means of which “temporary measures are adopted regarding the leasing of commercial premises.” This rule focused on regulating the unilateral termination of commercial lease contracts for premises whose tenants were unable to carry out their economic activity.
Subsequently, they have not re-elaborated regulations related to the mitigation of the negative effects that isolation has had and measures related to the fulfillment of obligations such as the payment of rent. It is usual to find many doubts such as: are there benefits or facilities to terminate the lease today? What happens if I lose my job and cannot continue paying the lease? What happens if I cannot open my business by any regulation of the government or the municipality? When and in what way can I terminate the lease, be it written or verbal?
Therefore, in this article I intend to briefly outline the current legal situation of leases and some possibilities that can be useful in conflictive situations.
Unfortunately, the Decrees mentioned above do not seek to alleviate the financial situation of people who are having difficulties paying their rental fees, as they only tried to regulate some particular situations that were becoming problematic, such as evictions in times of isolation and termination of contracts for entrepreneurs who could not carry out their activity. The truth is that the benefits in those situations were temporary and to this day, there are no regulations in this regard.
According to the above, only the alternatives that have been agreed in the signed lease or that are reached through an agreement between the parties would remain, which help prevent, avoid and correct any unpredictable imbalance that has affected the bases of what was initially agreed. It is important when formulating an agreement to bear in mind that (1) in most situations a legal process for both the landlord and the tenant is a waste of time and expenses in fees of a legal professional who guide and represent in said process (2) if it is very difficult to pay the agreed fee in full, even if it is through an executive process, a judge cannot force the payment of what is not available, so in both situations it is much more It is feasible to reach a conciliation that allows the situation to be overcome, understanding the difficulties of both parties.
It may also be feasible depending on each case, allege causes such as force majeure or fortuitous event in case of non-compliance or judicially request the revision of the commercial premises contract under article 868 of the Commercial Code which seeks to rebalance the agreement when circumstances unforeseen and unpredictable, after the conclusion of a successive execution contract such as a lease, alter or affect the provision of future fulfillment by one of the parties. But beyond those stipulated in the Commercial Code and the contract in the case of commercial premises and Law 820 of 2003 and the contract in urban housing leases, there are currently no regulations that seek to mitigate the negative consequences that in this This aspect continues to cause the Covid-19 pandemic and measures such as restrictions on the capacity of premises, shops and any place of concentration of people.
In any case, you can send us any particular concern regarding the subject to our emails or contact channels, to give you personalized advice after studying your situation.