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The Constitutional Court overturned in its entirety decree 797 of 2020, that had allowed tenants of commercial premises that were closed due to the coronavirus pandemic, unilaterally terminate their leases.
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The decree applied to the lease contracts of commercial premises whose tenants, as of June 1 of this year, and due to public order and sanitary measures, had their establishments closed. They had been allowed to unilaterally terminate those contracts until August 31.
Following the decision of the Court, It is not yet clear how many tenants had terminated their contracts governed by that rule and what will happen in those cases.
Upon reviewing this decree, with a vote of five to four, the Plenary Chamber of the Constitutional Court decided to overthrow it. Justices Richard Ramírez Grisales, Antonio José Lizarazo, Gloria Stella Ortiz Delgado and Cristina Pardo saved their vote.
(Read the context of this news: Leases of premises: how to negotiate to return it without all the fine).
The Court overturned this decree considering that it was not necessary in the framework of a State of Emergency, and also considered that the Civil Code and the Commercial Code have various instruments to overcome unforeseeable circumstances (such as a pandemic) in the face of a contract.
On the other hand, the Court considered that the autonomy of the will (which is what is involved in a contractual relationship), “It can only be affected in the face of objective circumstances of asymmetry that requires the necessary intervention of the Legislator to overcome it. ”
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In other words, if in this case the tenants were at a clear disadvantage compared to the owners of the commercial premises, for the Court the intervention of Congress was needed with a law to be able to overcome that situation.
In this case, the Attorney General’s Office had asked to keep the decree but conditioning it to the fact that unilateral termination could only occur if the parties (landlord and tenant) did not reach an agreement to keep the contract. However, the high court decided to overturn the entire rule.
The rule that the Court overthrew applied to the tenants of economic activities such as: bars, discos, billiards, casinos, bingo halls, gyms, swimming pools, spas, saunas, spas, sports fields, amusement parks, cinemas, theaters, religious services, hotels , restaurants, or events of a public nature with crowds.
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Although with this rule the tenants could terminate their contract unilaterally, they had to pay a third of the penal clause agreed in the contract, but they could not be penalized with any other fine, sanction or compensation for the owners of the premises.
To end these contracts, they also had to be up to date with the payment of the rent each month, as well as the public services.
JUSTICE
