Realestate

COVID-19: Senate Approves Prohibition of Preliminary Eviction on Urban Real Estate Leases

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On today’s date (04/03/2020) the Federal Senate approved the text of the Bill (PL) n. 1.179/2020, which in some cases prohibited the preliminary eviction of urban property leases. PL n. 1.179/2020 proposes the creation of an Emergency and Transitional Legal Regime for the legal relations of Private Law (RJET) during the period of the Coronavirus pandemic (Covid-19). Now the text goes to vote in the Chamber of Deputies.

The text approved by the Federal Senate dealt with various legal situations, including the preliminary eviction in urban property leases. On this occasion, we will deal specifically with the status of the injunctions in the eviction actions during the RJET period. It is the subject that we will make a brief analysis next.

Urban Real Estate Leases

The lease of urban real estate gained special treatment in the text of PL n. 1.179/2020. This regulation fell on the injunctions in eviction actions, also known as injunctions in locations. To this end, article 9 was created, which provides the following:

Art. 9. No injunction will be granted for the vacancy of urban property in eviction actions, referred to in art. 59, § 1, I, II, V, VII, VIII and IX, of Law No. 8245, of October 18, 1991, until October 30, 2020.

Single paragraph. The provisions of the caput of this article apply only to lawsuits filed from March 20, 2020.

The text brings an exceptional hypothesis of suspension of the effects or application of a rule, during a specific period of time. Therefore, it is not a matter of repealing the law, but a temporary suspension of its application.

The prohibition falls on some hypotheses of injunction to vacate the property within fifteen days, a measure usually practiced in eviction actions. In this case, regardless of the hearing of the opposing party, the judge already decrees the vacancy of the leased property. But for that it is necessary to fulfill some requirements, such as providing a security deposit equivalent to three months’ rent.

The approved text suspended the application of only some hypotheses and not all. The hypotheses are those provided for in article 59, paragraph 1, items I, II, V, VII, VIII and IV of the Leases Law. Some hypotheses were left out of the PL, which means that the other hypotheses are not suspended.

Furthermore, it should not be forgotten that the limitation is transitory and that it only applies to lawsuits filed as of 03/20/2020. And this period runs from 20/03/2020 to 30/10/2020. Only for lawsuits filed in this period will no injunction be granted for the eviction of urban property in eviction actions. For, during this period, the application of the indicated norms will be suspended.

In which cases cannot the Eviction injunction be granted?

Paragraph 1 of article 59 of the Leases Law has nine items. Of the nine, only six (06) hypotheses will have their application suspended. Consequently, in the other hypotheses of §1, of article 59, there is no prohibition on granting the injunction. And what are these cases?

An injunction will not be granted for the eviction of urban property in eviction actions, during the period from 03/20/2020 to 10/30/2020, in actions that have as exclusive basis:

I – non-compliance with the mutual agreement (art. 9, item I), entered into in writing and signed by the parties and two witnesses, in which the minimum period of six months for eviction, counted from the signing of the instrument, has been adjusted;

II – the provisions of item II of art. 47, with written proof of the termination of the employment contract or being demonstrated in a prior hearing;

V – the subtenant’s stay in the property, the lease terminated, entered into with the lessee.

VII – the end of the notification period provided for in the sole paragraph of art. 40, without presentation of a new guarantee able to maintain the inaugural security of the contract;

VIII – the end of the term of the non-residential lease, with the action being proposed within 30 (thirty) days of the term or of compliance with the notification communicating the intention to repossess;

IX – failure to pay rent and lease accessories on maturity, the contract being devoid of any of the guarantees provided for in art. 37, for not having been hired or in case of extinction or request for her dismissal, regardless of the reason.

In which cases was the eviction injunction prohibited?

In fact, in the opposite direction, during the period from 03/20/2020 to 10/30/2020, the injunction of art. 59, § 1, in the event of eviction actions that have as their sole basis:

III – the end of the season lease term, with the eviction action being proposed within thirty days after the contract expires;

IV – the death of the lessee without leaving a legitimate successor in the lease, as referred to in item I of art. 11, persons not authorized by law remaining in the property;

VI – the provisions of item IV of art. 9th, if there is a need to carry out urgent repairs to the property, determined by the government, which cannot normally be carried out while the lessee remains, or, being able, he may refuse to consent to them;

In addition to the special hypotheses of the Urban Leases Law, the party can also appeal the injunctions provided for in the Code of Civil Procedure, which was not equally prohibited.

Final considerations.

It should be noted that the text approved by the Federal Senate does not absolutely prohibit the possibility of granting the injunction provided for in art. 59, § 1, of the Urban Leases Law. The prohibition falls only on those hypotheses that show potential damage in the period of the Coronavirus pandemic (Covid-19). One of the very usual injunction hypotheses, but whose prohibition was foreseen, is that of eviction actions for empty or unmotivated accusations.

However, nothing prevents the specific case from bringing elements that justify one or another provisional relief, even on other grounds than those exclusively prohibited.

It is advisable to analyze each specific case in order to verify the appropriateness or not of the injunctions. Therefore, it is advisable to seek a specialist lawyer to present an opinion or consultation on each situation.

 

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