viernes, 23 de octubre de 2020
Leasing of company, industry or business
The lease of a company, industry or business, is that contract by which the owner of a company assigns the use or exploitation of his company to a third party for a specified time and in exchange for an economic benefit.
This contract does not have a specific regulation in our legal system, so it is governed by the provisions of the parties and, failing that, by the rules contained in the Civil Code. From this it is clearly extracted the importance of what is stipulated in the contract.
The object of the contract is the operation of a company, made up of equipment, machinery, premises in which it is installed and the entire organization (brands, trade names, etc.) that constitutes a ,,necessary whole,, for the exercise of industrial activity. In this way, the industry is already underway or ready for immediate start-up, with the lessee continuing with the same business, without making substantial modifications.
Reiterated jurisprudence of the Supreme Court on this issue, indicates that the lease will be for industry when the lessee receives, in addition to the premises, the business or industry established therein, so that the object of the contract is not only the goods that in the same are listed, but a patrimonial unit with a life of its own and capable of being immediately exploited or pending to be it of mere administrative formalities.
This contract must be distinguished from other similar ones such as the lease of commercial premises, since in the company lease the premises and the business established therein are rented, or the lease of the premises with delivery of certain elements that are not configured as a unit patrimonial.
The price to pay or rent must be true and must be determined in the contract, although a combined income can be stipulated, partly fixed and partly variable (depending on the benefits).
There is no obligation to provide a guarantee. However, it is mandatory for the leases of premises, setting it in the Urban Leasing Law in two monthly installments.
Regarding the obligations of the lessor, it will be necessary to comply with what is agreed by the parties. In general, the following are established:
- The company must deliver with all the essential elements for its exploitation or, where appropriate, those that have been established in the inventory added to the contract.
- You must deliver the things in suitable conditions for the agreed use, giving the tenant the power to dispose of them and collaborating in everything that is necessary to start the operation of the business.
- You must carry out all the necessary repairs in order to keep it in a condition to be used for its intended use.
- You must keep the tenant in the peaceful enjoyment of the lease for the entire duration of the contract.
- Other obligations can be agreed, such as the non-competition commitment.
The tenant,s obligations include the following:
- You must pay the rental price and the deposit under the agreed terms.
- You must use the thing according to the agreed use. You must operate the company by yourself, without altering its form or substance, being able to make improvements, but at the end of the contract you cannot claim compensation for them, although you can withdraw them.
- You must keep it in good condition, not being responsible for the deterioration of things due to normal use.
- You are obliged to inform the lessor, as soon as possible, of the repairs necessary to keep the company in the agreed use. If during the lease it is necessary to make an urgent repair in the leased thing that cannot be deferred until the conclusion of the lease, the tenant has the obligation to tolerate the work, even if it is very annoying, and although during it he is deprived of a part of the farm. If the repair lasts more than forty days, the rental price must be reduced in proportion to the time and the part of the property that the tenant is deprived of.
- You must return the property, at the end of the lease, as it was received, except for what had perished or was impaired by time or due to unavoidable causes. In the absence of expression of the state of the farm at the time of leasing it, the law presumes that the tenant received it in good condition, unless proven otherwise.
Among the most frequent causes of termination of the contract are the following:
- Due to the expiration of the agreed term. If no term has been agreed, it will be necessary to comply with the Civil Code regulations on tacit renewal.
- For breach of the parties. The breach must be essential and may lead to the termination of the contract and / or the damages caused.
- Loss of the company. When any of the essential elements for the continuity of the operation of the company are lost (loss of premises, administrative licenses, etc.)
In this way, the landlord may judicially evict the tenant when any of the aforementioned causes occurs.