Relatively extensive interpretation of the rules for regular annual billing of services provided with the rent of immovable property has been used by the Supreme Court of the Czech Republic in its judgment no. 26 Cdo 5212/2017-147 (28 August 2018). This decision can have very serious consequences especially for landlords of non-residential real property.
The matter of litigation by the Supreme Court was the reluctance of the hotel complex’s tenant to pay its landlord for consumed energy and services provided with rent, with arguments based on the statement that the billing of energy consumption has not been performed properly. The Supreme Court upheld the tenant’s objection that the non-payment for energy consumed and the services provided with the rent cannot be considered as due until a proper billing has been made, with analogous use of the rules contained in Act No. 67/2013 Sb., despite the clearly intended applicability hereof just for flats and apartment buildings. As a consequence, it means that the relatively demanding rules of proper billing also apply to commercial rents of the non-residential real property.
In practice, landlords of non-residential real property should now pay much more attention to the contractual arrangement of regular billing of the energy consumption and services provided with rent, especially in the case of advance payments and their subsequent settlement based on actual consumption. Any arrears will be payable only if the billing is done correctly. Otherwise, it is considered that the billing has not occurred at all and instead of receiving the required arrears, the landlords may even be forced to return the already paid advances as unjust enrichment. Despite the extent of analogical application of the Act No. 67/2013 Sb. to the non-commercial rents cannot be accurately assessed yet, it should not be forgotten that this regulation also entitles the tenant to demand a penalty payments of CZK 50 for each day of the landlord’s delay with the presentation of a proper billing of energy consumption to the tenant.
Our law firm PEYTON legal is prepared to perform appropriate adjustments to lease agreements for its clients in order to eliminate the above risks, as well as to prepare effective procedural defense of the client in case of a dispute emerged already.
PhDr. Mgr. Jan Ptáčník, attorney at law – firstname.lastname@example.org
11. 01. 2019