[评论]Long-Term Rental Apartment Owners Can’t Just Evict Tenants-Viewpoint · Observation-cnBeta.COM

Recently, due to problems exposed by Eggshell Apartments’ Internet financial model, the financing chain was interrupted, and the intermediary was left in the dark. The owners were unable to collect the monthly rent. They even expelled tenants who had paid rent for several months or even the whole year. A cruel incident in which tenants were evicted from a fight to a knife.The culprit in all this is naturally the Eggshell Apartment operator and its management and controller. However, as the intermediary is not responsible for the moment, the landlord cannot collect the rent, and the tenant has already paid the rent, we need to analyze how to resolve the current bilateral dispute.

Although in reality, the landlord is in an advantageous position due to the ownership of the house, but in reality, it does not matter from the perspective of legal rights or social interests, the landlord should be prohibited from evicting the tenant easily.

First, the landlord must respect the rights of the tenant. The basic routine of long-term rental apartments is actually subletting houses. The broker rents the house to the owner and, after fully occupying it, rents it to the tenant at a high price. Although the landlord and the broker, and the broker and the tenant are two relatively independent contractual legal relationships, the landlord knows and allows the broker to sublet. The long-term rental apartment is more suitable to be considered as a three-part contractual legal relationship. The rights of the subtenant, that is, the tenant’s leased person, must be protected to some extent.

In fact, Article 719 of the Civil Code approved this year also added the right of subrogation for a subtenant. That is, if the tenant feels that instead of letting the landlord go out and pay another rent for the new house, it is better to pay the rent owed to the landlord on behalf of the middleman to avoid the hassle of finding a house and moving, then the tenant has the right to choose to pay and continue living. And, at the same time, you have the right to demand that intermediaries eventually take over these repeated rents. Also, the rent arrears paid by the tenant, acting on behalf of the intermediary, must be in accordance with the standard agreed between the intermediary and the landlord. The landlord cannot ask the tenant to re-sign the lease at a higher price.

Second, if the landlord evicts the tenant, he must at least explicitly resign and transfer the right to the subsequent rental. The intermediary did not pay the rent to the owner, of course he was in breach of the contract. The owner took possession of the house by force, believing that he has the right to reduce losses and provide relief. However, if the house is to be repossessed, the owner will at best claim from the intermediary that the loss of transaction costs caused by the “release” should no longer be entitled to collect the subsequent rent. The landlord must at least explicitly waive the right to follow-up rental and transfer this right to the tenant.

For ease of understanding, here is a simple example where the broker rents a house from the owner at a monthly rent of 5,000 yuan and sublets it to the tenant at 6,000 yuan. The intermediary’s debt to the owner is to pay 5,000 yuan and the debt to the tenant is to provide housing. If the middleman does not give the landlord a penny with one month remaining on the lease, and the landlord immediately takes the house back by force, the landlord’s loss will be basically zero. The tenant’s loss is twofold, that is, “lack of property and money.” Even if the rent of 6000 yuan is finally returned to the tenant, it does not mean that the loss has been recovered. This is because the tenant’s rights are not only “just rent for a few months without having to pay more” to live a few months, but the right to live without interruptions within the agreed term. For this period of loss of residence, it is necessary to compensate for the rental right assigned by the tenant of the owner.

Third, from the perspective of legal interest, the right of residence is more important than the right to collect rent. Long-term rental apartment owners have hastily evicted tenants and even expelled young women onto the streets late at night, which has become a cruel social incident that affects social harmony. Although the landlord cannot receive the rent, he is innocent. But it is clear that the tenant is not the illegal party or the offending party. This is not a dispute between good and evil, but a balance of legal benefits. There is no doubt that the tenants’ right of residence is closer to basic human rights. Even when the court enforces the debts determined by the judgment against “Laolai” in accordance with the law, it must respect the basic residential rights of the person subject to execution. On the contrary, during the tenant’s legal tenancy, if the landlord’s right to collect the rent and the tenant’s right of residence are intended to be temporarily sacrificed (of course, they still have the right to demand that the intermediary take ultimate responsibility ), it should be the first. The latter is sacrificed. When the owner and the tenant cannot resolve it through negotiation on their own, the public security organs will accept the tenant’s call for assistance and protect the tenant’s right of residence within the time limit.

From the macro perspective of social cost sharing, the bottom line is that landlords should take more risks than tenants. If risks cannot be resolved, then a basic task of modern social law is to assign risks and transfer risks from subjects who are more worthy of protection to subjects who are more capable of taking risks. Those who can rent real estate in the big cities where long-term apartment rentals prevail are generally wealthy, or even generous people. They are more financially capable of bearing losses and better able to monitor long-term rental apartments. In fact, the owner chooses to “contract” the house to an intermediary instead of renting it directly to the tenant, which means that the owner must bear the risks that this indirect way entails. In contrast, younger or poorer tenants are forced recipients of the long-term apartment model in the context of a significant reduction in direct housing listings. After the middleman explodes, the landlord loses only a small amount of money relative to general wealth, and the tenant loses not only more money relative to general wealth, but also the basic order of life, which also gives them will prevent further doing. The potential of society to create wealth. They are more worthy of protection.

(The author is an associate professor at the Faculty of Law of the Central University of Finance and Economics)