Specifics of the termination of the sublease contract of an apartment through the lens of the Supreme Court jurisprudence

The basic framework is provided by the general regulation of sublease in § 2215 OZ, according to which:

1. If the lessor agrees, the lessee may establish a right of use for a third party; if the lease agreement has been concluded in writing, it also requires the landlord's written consent
   form.
2. If the lessee establishes a right of use to a third party without the landlord's consent, this shall be regarded as a gross breach of the tenant's obligations causing the lessor more serious harm.
3. The right of use may be granted to a third party only for the duration of the rental of the item; the derogation shall not be taken into account.

According to this general arrangement, subletting consists in the fact that the lessee establishes for a third party the right to use the thing. In terms of content, therefore, there is no distinction between subletting and letting use of a thing.

In the section of the Civil Code devoted to renting an apartment and a house, there is a separate group of provisions marked “Sublease”, where the law formulates the possibility of the tenant to sublet an apartment or part of it to a third party, where the law, for example, in certain situations does not require the consent of the landlord, in other cases it even supposes his consent. Since this regulation follows the general regulation of tenancy, it must be assumed that the Civil Code here uses the concept of subletting in the same sense as defined in the general provisions. The subletting of an apartment must therefore be seen as the establishment of a right of use to a third party on the part of the lesser.2

In its decisions, the Supreme Court has repeatedly commented on the nature of sublease, to the effect that: “the essence of a sublease, which is defined as a “lease of a right of lease”, is that the lessee leaves the leased thing for use to a third party for consideration and may establish the right of use only for the duration of the rental of the thing (Paragraph 2215 (3), § 2277, § 2278 o. z.). Thus, a sublease relationship is characterized by an incentive relationship, that is, it is dependent on the lease (main) relationship, both in terms of its origin, content and duration. If the tenancy relationship is terminated, the sublease relationship also ceases, regardless of the reason for the termination of the tenancy relationship and regardless of what the tenant and sublet have agreed on the termination of the sublease. “! 3

In connection with the termination of the sublease agreement of the apartment, it is necessary to note that the sublet is significantly less protected than the tenant by law. Since the purpose of the tenancy agreement for an apartment is to provide for the housing needs of the tenant (and members of his household), the tenant of the apartment, as a weaker party to the contract in the Civil Code, is protected by relatively binding legislation (§ 2235 (1) OZ) .4 However, the Supreme Court considers subletting to be “weaker” than the tenancy relationship, which implies the impossibility of applying a relatively binding arrangement protecting the tenant apartment and sublet. According to the Supreme Court, there is no reason to extend the special protection of the tenant of the apartment to other legal relations establishing the right to use the apartment.5

In its judgment of 13 March 2024, sp. 26 Cdo 1002/2023, the Supreme Court assessed the validity of the termination of the sub-lease agreement in accordance with the provisions of § 2288 (2) (a) OZ, which the plaintiff justified by his need for housing, with a notice period of 3 months. The Supreme Court stressed here that, where the regulation of subletting in the Civil Code does not contain any regulation of the grounds for termination of the sublease contract, it is necessary to proceed from the basic regulation of private law that what is not prohibited is permissible, and that the parties to the sublease contract can therefore agree on arbitrary grounds for termination regardless of the legislation. “In the present case, it is clear from the content of the sublease agreement that a sublease was concluded for an indefinite period, which could be terminated by written agreement of the parties or by the termination of the lessee or sublet, the reasons for the termination of the parties having been precisely specified. Since the ground for termination of the sublease agreement was terminated by the tenant (that he needed the apartment for himself) was not agreed, the conclusion of the Court of Appeal that the tenant could not use it [...] is correct.“6

In this connection, the Supreme Court also concluded that the Civil Code does not contain a special provision for the review of the legitimacy of the termination of the sublet of an apartment, since the possibility of filing a petition for review of the termination according to the provisions of § 2290 OZ is reserved only for the participants of the rental relationship. “Neither the meaning and purpose of the modification nor the nature of the sublease relationship require that this special institute also apply to the subletting of an apartment. This means that the notice of subletting the apartment may not contain any information on the possibility of seeking its review by the court and that the legitimacy of the termination of the sublet of the apartment can be addressed as a preliminary issue, e.g. in the eviction proceedings [...] . “7 The Supreme Court also reached a similar conclusion in the case of the review of the legitimacy of the termination of the sublease of the premises serving the business pursuant to § 2314 OZ.8

In the case of a sublease contract concluded before 1 January 2014, it is also important to correctly determine under which legislation the termination of such a contract is to be assessed. The answer to this question is provided by the transitional provisions of the Civil Code. As a general rule for obligations, the Civil Code establishes the principle of total non-retroactivity.

According to § 3028 (3) OZ: “Unless otherwise provided for, other legal circumstances arising before the date of entry into force of this Act, as well as the rights and obligations arising therefrom, including rights and obligations arising from the breach of contracts concluded before the date of entry into force of this Act, shall be governed by existing legislation. This shall not prevent the parties from agreeing that their rights and obligations shall be governed by this Act from the date of its entry into force. “

Pursuant to § 3074 (1) OZ, however, the rent “shall govern this Act from the date of its entry into force, even if the formation of the tenancy occurred prior to that date; however, the creation of the tenancy, as well as the rights and obligations arising before the date of entry into force of this Act, shall be considered in accordance with the existing legislation. This does not apply to the rent of movable property or to the lease. “

Paragraph 3074 (1) of the OZ thus provides differently for leasing in general the principle of false retroactivity, with the exception of the lease of movable property and rent.

As of 1 January 2014, the content of the sublease relationship is governed, depending on its content, either by modifying the previous one (§ 3028 (3) OZ) or by a new one (§ 3074 OZ), in the same way as if it were an independent tenancy ratio. For example, if the sublease has the nature of a loan, Section 3028 (3) of the OZ applies. However, if it has the character of a lease (and it is not a rental of movable property), it is governed by the Civil Code according to § 3074 OZ.9 Since the subletting of an apartment will in most cases be in the nature of a lease, its legal regime must be assessed according to the transitional provision of § 3074 (1) OZ. “If, in a given case, it is necessary to assess the validity of a termination granted after 1 January 2014 in respect of a sublease relationship established under the previous legislation, it follows from the provisions of Paragraph 3074 (1) o. z. that the new legislation already affects it. “! 10

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1 MELZER, Philip, TÉGL, Petr. Sublease in the new civil law. Advocacy Bulletin, 2022, no. 5, p. 23.
2 Ibid.
3 See, for example, the judgment of the Supreme Court of 17 March 2020, p. 26 Cdo 1524/2019, paragraph 9.
4 See, for example, the judgment of the Supreme Court of 5 June 2019, p. 26 Cdo 2059/2018, paragraph 21.
5 Judgment of the Supreme Court of 20 August 2024, p. 26 Cdo 2018/2023, paragraph 15.
6 Judgment of the Supreme Court of 13 March 2024, p. 26 Cdo 1002/2023, paragraph 12.
7 Ibid., paragraph 14.
8 Judgment of the Supreme Court of 17 March 2020, p. 26 Cdo 1524/2019, paragraph 12.
9 HULMÁK, Milan. § 3074 [Rent and rent]. In: HULMÁK, Milan et al. Civil Code VI. Obligatory
right. Special section (§ 2055-3014). 1st edition. Praha: C. H. Beck, 2014, p. 2021—2022, marg. no. 88.
10 Judgment of the Supreme Court of 13 March 2024, p. 26 Cdo 1002/2023, paragraph 10.