The health measures adopted to curb the spread of the Coronavirus have had a very negative impact on certain sectors of the economy. Perhaps the hotel and catering industry is one of the activities that is suffering the most. Many businesses have been forced to close temporarily and/or reduce capacity and clientele. The consequent reduction in income, together with the maintenance of their financial obligations, is the main obstacle to paying rent. Evictions are coming in times of covid-19
Article 444.1 of the Code of Civil Procedure prevents the analysis of circumstances of force majeure.
In eviction proceedings, the wording of article 444.1 of the Civil Procedure Act only allows the defendant to allege and prove the payment or the circumstances relating to the applicability of the enervation. This means that, when the defendants highlight aspects related to the impossibility of fulfilling the contract due to force majeure or imbalance caused by the health crisis generated by the evolution of Covid-19, the aforementioned rule prevents such circumstances from being analysed.
In the event of an eviction, a claim on the basis of the ribus sic stantibus clause may be the way forward.
The Supreme Court has ruled that if the issue of opposition raised by the defendant is complex, recourse must be had to ordinary proceedings. A detailed and thoughtful examination is obligatory. It will be different from that which is simplistically offered in the raising of an opposition that can be resolved in the summary eviction proceedings.
There is a proposal from the Permanent Commission of the General Council of the Judiciary that proposes the modification of the aforementioned precept. In eviction proceedings for non-payment, the intention is to include the concurrence of force majeure or supervening imbalance in the contractual services as a reason for opposition. They must be motivated by the health crisis situation generated by the evolution of Covid-19 in orderto be viable. The tenant can allege and prove these grounds for objection in the framework of the verbal eviction trial.
At Confialia, business advisors, we advise that, in the case of receiving an eviction lawsuit for non-payment, we oppose the exception of complex cause. In this way we can prevent the continuation of such proceedings, while at the same time we file an ordinary lawsuit. It will be on the basis of the so often used these days clause rebus sic stantibus that we can request a judicial declaration of suspension and/or reduction of the rent in view of the exceptional circumstances we have been living with for the last year. The aim is to prevent evictions in times of crisis.
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