Formulation of the Rebus Clause in the execution of leases

This comment does not intend to analyze the content and regulation of the Rebus clause, an issue that has been extensively discussed for months. We focus on the best way to obtain judicial protection under the aforementioned clause for those who have the right, or expectation of the right, to its application as a consequence of the State of Alarm, and more specifically the tenants of business or industrial premises.

In this regard, the first thing is to keep in mind that if the owner initiates the verbal trial of article 250.1.1º of the LEC, for non-payment of rents, resolution and eviction, article 441.1 LEC, limits the causes of opposition, and the allegation of the Rebus clause would have no place in them.

The Rebus Clause in industrial leases

In the case of industrial leasing, the course of the verbal trial provided for eviction due to non-payment or expiration of the term of the relationship should not be followed, we are not facing a business premises lease contract submitted to the LAU of 1994 but before an industry lease, subject to the Civil Code. This means that the resolution of an industrial lease must be followed through the ordinary trial procedures (and not through the verbal trial channel provided for eviction due to non-payment or expiration of the term of the rental relationship in art. 250.1.1º LEC), without therefore applying the limitations of allegation and proof that derive from the special rules of art. 441-1 of the LEC. In this case, it is possible to oppose the Rebus clause to the income claim, but only with respect to those that are the subject of the claim. What will force to defend again the application of the clause before a new demand of the property.

The Rebus Clause in business premises leases

In the case of a lease of business premises, the verbal judgment of 250.1.1 proceeds, where, as we said, the Rebus clause cannot be flattered . What is appropriate is that the lessee anticipates the demand for the property, filing an action in ordinary proceedings based on the Rebus clause. It would even be highly recommended to request inaudita parte precautionary measures, prior to the lawsuit, in which the object of the same can be very varied.

Case law

This was stated by the lessee in the procedure, which has given rise to the first resolution of a Provincial Court, that of Valencia, which confirmed the order of the Court of Instance. In the order reviewed by the Court, it was partially estimated what was requested by the lessee in the orders for the adoption of precautionary measures, and it was agreed, as such precautionary measure, the postponement during the processing of the payment procedure of 50% of the agreed minimum monthly income from the monthly payment requested until the ruling is handed down, maintaining the deferral of income generated in the future in the event that the current legal restrictions on capacity and border access to European tourists.

Of course, the resolution considers that the three requirements of all precautionary measures are met, “fumus boni iuris” or appearance of good law, the “periculum in mora” and the offer of surety.

Regarding the appearance of good law, highlight the pronouncement according to which:

“that the legislator allows the application of similar measures such as moratoriums to SMEs in economic difficulties as a consequence of the devastating effects of COVID-19; and in this sense it is worth mentioning Royal Decree Law 15/2020 of April 21 , of complementary urgent measures to support the economy and employment -which even refers to the rebus sic stantibus clause in its preamble-, a legal norm that has also been complemented and expanded by Royal Decree-Law 35/2020, of 22 December, of urgent measures to support the tourism, hospitality and commerce sectors and in tax matters, although in any case it is appropriate to clarify that the previous legal provisions constitute a minimum regulation in the absence of an agreement, and that the mere fact that The requirements demanded by the legislator for the adoption of the measures provided for in said regulations are not met in the requesting entity -or even if they are met-, it does not mean that similar measures cannot be requested in the jurisdictional channel in order to assess whether they are given the necessary requirements for the contractual modification in application of the jurisprudential doctrine on the rebus sic stantibus”

That is, the measures provided for in the specific legislation enacted during the State of Alarm are not exclusive of any others, such as those requested in this case by the lessee.