疫情期间餐厅应如何减租?

A restaurant or bar owner can bring a case to court for rent reduction if no agreement can be reached with his landlord. 

餐厅可先向房东提出减租申请。如果房东不同意,餐厅可向法院起诉要求减租。”

01

Purpose

目的和用途

We write this article for two purposes. 

本文有如下两个目的

One is to help restaurant and bar owners understand under what circumstances and reasons they can ask their landlords to reduce their rent, and how to proceed? 

明确在什么情况下,餐厅可以要求减租,如何减租?

The other is to help landlords and their tenants reach amicable agreements on the renegotiation of contract terms by understanding the law, although this may currently seem very difficult.

协助房东和餐厅通过协商,依法变更合同。

02

Background 

情况简介

The 2020 coronavirus pandemic has hit everyone hard except for mask factories. One of the most affected industries is the catering and bar industry, as a result of being ordered to shut down, as well as restrictions on dining, one table serving one client etc., and lack of customers. 

2020年,疫情影响严重,各行各业都受到影响,餐饮行业更是重灾区。暂停营业,禁止堂食,一桌一人,还有人流量大幅减少。

We have been asked by many Chinese and foreign restaurants & bar owners in Shenzhen “Can we ask the landlord to reduce the rent? ” 

众多餐厅老板都有一个问题:能减租吗?

The answer is yes. It is the right of a tenant to change the contract.

答案是:可以减租。疫情影响下,租客有权变更合同。

03

Legal Basis

法律基础

Under PRC laws, there are two principles both of which could lead to either a change or termination of a contract. The two principles are Force Majeure and Change of Circumstances.

根据中国法律,两种情况下可以变更或解除合同:不可抗力和情势变更。

Force Majeure

不可抗力

Force Majeure applies to a situation in which a party to a contract is impeded from performing his obligations due to unpredictable and unconquerable difficulties. 

不可抗力,指不能预见、不能避免并不能克服的客观情况。

Under Force Majeure the affected party can be relieved from his obligation to perform the contract and liabilities of the non-performance.

出现不可抗力,不能履行合同,受影响方可以不用承担违约责任。

In a lease agreement, the tenant’s major obligation is to pay the rent, if banking services are in operation. It is not acceptable for a tenant to cite Force Majeure as a defense for non-full payment of rent, or an excuse to terminate the contract.

在租赁合同中,承租人的主要义务是支付房租。如果银行可以转账,租客不能以不可抗力为由不付,少付或者解除合同。

A poor business environment as a result of the pandemic is a far cause to the inability of payment, this causation is difficult to be recognized under Force Majeure.

疫情造成营业额减少并非租金不能支付的直接原因,承租人难以利用不可抗力来作为不支付租金的合法理由。

Change of Circumstances

情势变更

Change of Circumstances gives the right to the affected party to change originally fair contract terms, which are now unfair, to new and fair terms in the Changed of Circumstances to balance the interests of the contract parties. 

情势变更,指合同成立以后,客观情况发生了当事人在订立合同时无法预见的、非不可抗力造成的不属于商业风险的重大变化。受影响方有权变更合同。

There is no impediment for the affected party to perform the contract, but to perform the contract will put the affected party in an obviously unfair and biased position.

合同的履行不存在障碍,但继续履行合同对于一方当事人明显不公平或者不能实现合同目的。

Change of Circumstances applies to the current pandemic.

情势变更适用于疫情。

In the current pandemic, paying full rent of a restaurant or bar premises is obviously unfair for restaurant & bar owners, given business is materially affected by the pandemic. 

疫情对餐厅的营业造成重大影响,对餐厅来说,全额支付房租显然是不公平的。

04

Specific Request

具体请求

The affected restaurant & bar owners can ask for a reduction of rent, prolong a free lease term or even terminate the contract if termination can only balance the interests of both parties within the principle of Change of Circumstances.

疫情之下,餐厅可以根据情势变更原则,要求减租,延长免租期,且在只有解除合同才能平衡双方利益时解除合同。

As for how much the rent can be reduced, and to what extent the contract can be terminated, different cases will have different answers.

减多少,在什么情况下可以解除合同,不同的情况可能会有不同的标准。

05

Steps to Follow

减租步骤

The affected restaurant & bar owner shall first notice the landlord of the affected facts as a result of the pandemic, for example, closure of shops, shortage of foodstuffs, lack of customers or lack of staff.

首先,餐厅应向房东提供疫情影响的证据,如餐厅停业,食材短缺,人流下降,员工不能复工等。

With this notice, the restaurant & bar owner shall raise proposals or demands to change the original contract terms for renegotiation, like the amount of rent to be paid, or request to terminate the contract if that has to be done.

同时,餐厅应该提出减少租金等变更原租赁合同的请求。特定情况下,餐厅可以提出解除原租赁合同的请求。

During the negotiation period, restaurant & bar owners shall have the right to cease rent payment with notice to the landlord (Refusal Right); Although there are no clear law provisions under PRC contract laws about this right, in many court cases it is recognized.

协商期间,餐厅有权在通知房东后,停止支付房租。尽管法律上并没有明确的规定,在司法实践中,法院认可承租方可以中止履行。

If your landlord refuses to renegotiate or no new terms can be reached after negotiation, it will be the responsibility of the restaurant & bar owner to bring the case to court or to a arbitration committee if the contract so states in order to get your proposed new terms to be binding, or to have the contract terminated by law.

如果房东拒绝协商或未能就变更合同达成一致,餐厅可以起诉或通过仲裁变更合同。只有这样,餐厅才能合法变更或解除合同。

When to bring up a legal case depends on the contract terms and what will be claimed.

起诉时间可根据合同条款和诉讼请求确定。

Please bear in mind, if you claim for termination of contract, you should also consider the penalties for breach of contracts, severance payments of employees and also other possible debts to suppliers and loss of your restaurant fixtures etc.

需注意:如果提出解除租赁合同,餐厅还应支付解除合同的违约金,员工的经济补偿金,支付供应商货款及承担装修损失。

06

Support Policy

优惠政策

There are a number of policies from different levels of Shenzhen government to support qualified restaurants & bars with respect to rent payment. Restaurant & bar owners should get to know all of these helpful policies.

为支持餐饮业,深圳各级政府均发布了减免和补贴租金的优惠政策。餐厅在了解后可根据具体情况进行申请。

This article does not constitute our legal advice, we will not be responsible for any action taken by relying on it without consulting a lawyer.

本文并非针对个案的法律建议,具体建议请详询律师。

Should you wish to understand more, please contact :

Beijing Yingke Law Firm (Shenzhen Office) 深圳律师–北京盈科(深圳)律师事务所

Phone Number:18682339010 (Phone & Wechat)

Email: [email protected]

Address: 3F, Rongchao Business Building, Yitian Road No. 6003深圳市福田区益田路荣超商务中心B座3楼