COMMERCIAL LEASING

Introduction
The so-called micro and small enterprises are responsible for a significant shar
e of national income and represent a considerable part of Brazilian GDP. An exam
ple of its importance, just remember that according to recent statistics, 98.9%
of all businesses in the area of trade and 96.43% in the area of industry in the
country are classified as micro and small, which shows strong performance they
have on job creation and training of our wealth. Although very significant, thes
e numbers tend to increase further, since big companies to withstand the crisis
facing the country, have waived their employees who seek other means of survival
by establishing their own, often with the involvement of family members. These
new small businesses, leaving the field to establish a small factory or store tr
ade in general do not possess properties suitable for its premises and seek a re
ntal property. Arise, then, many different questions about the inevitable negoti
ations for a lease, with its many clauses which will document the rights and obl
igations of the parties based on the Law of the Tenant. This work, although inci
pient, is for those wishing to rent a property and need basic information and fu
ndamental, so they are not surprised with losses and disappointments came from a
poorly drafted contract for lack of basic knowledge. The information and recomm
endations contained herein were compiled from the most important issues, brought
by entrepreneurs from around the state of Sao Paulo, seeking clarification and
advice from the Legal Counsel of the Sebrae.
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Sebrae São Paulo provides any additional information that will meet the needs an
d interests of the tenant or lessee and the applicant is placed at your disposal
. Source of research: the Annual Social Information (RAIS), 1997, the Ministry o
f Labor and Employment.
Tips for renting a commercial property (Law 8245 of October 18, 1991)
BEFORE YOU RENT A PROPERTY FOR THE EXERCISE OF THEIR ACTIVITIES AND FOLLOW THESE
INSTRUCTIONS ABOUT THE MAIN RULES FOR HIRING COMMERCIAL. CASE QUESTIONS REMAIN,
TO REPORT ON THE ADVICE OF LEGAL SEBRAE / SP.
1. Select Property
Make sure that the property in question meets the operational needs as to locati
on, ability to accommodate his business, neighborhood characteristics, it is ser
ved by water services, light, power, sewer, phone, etc.. See also has convenient
access, parking for vehicles, loading and unloading site for goods and services
has transportation.
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Beware of real estate located in areas subject to flooding or close to risk area
s. Refer to the neighborhood about it. Make sure the property is legalized and r
egulated along with federal agencies, state and municipal that may interfere or
prevent future activity. Check out the plans of the property approved by the Cit
y, and see if there has been no subsequent work by increasing, decreasing or mod
ifying the primitive area, which should be properly regularized. Ask the dwell u
p and check the zoning law.
2. Documentation
Requiring the lessor or his representative updated documentation proving ownersh
ip of the property, issued by the office to register property. You do not always
deal directly with the owner. If the lease is made by an attorney, ask for docu
mentation that entitles them to rent the property. The same should happen in the
case of a sublease: Make sure the lease contains an express clause permitting t
he lessee to sublet part of the building, or part the prior written permission o
f the lessor for such purpose.
3. Preliminary report of survey
Check conservation status of the property, take pictures and make a survey repor
t together with the landlord and sign. Be sure to relate everything that is in t
he house: telephone equipment, faucets, switches, doors, windows, fixtures, tabl
es, vazos, cabinets etc.. The award of preliminary inspection should be part of
the lease.
4. Lease
Rental Contract is the legal agreement between landlord and tenant that sets out
clear rules and objective in the sense that the tenant receives and use the pro
perty transferred by the lessor, under certain conditions, upon payment of a ren
tal.
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After choosing the ideal property to perform their activities, require the hirin
g be given by means of lease agreement in writing, which should include: the qua
lifications of the parties, the object, the amount of rent,€adjustment index, du
ration of lease, manner and place of payment of rent and other terms which we di
scuss below. The written agreement gives greater security to the parties. Finall
y, read carefully. The contract should be prepared in at least two identical cop
ies, one for the tenant and the landlord to another. Both sides will also sign c
opies of the lease at the same time, that is, one should avoid one of the partie
s to sign the forms and return it to the other party for signature and return la
ter.
5. Expenditure on contract
The Tenancy Act provides that the burden of real estate brokerage, property mana
gement fee, expenses of preparing the contract, services for measuring the econo
mic capacity of the lessee and guarantor are the sole responsibility of the land
lord, it was he who hired these services.
6. Contracting parties
At lease we have on one side of the landlord and another tenant: Landlord: is th
e owner or owner's representative who gives the property leased. Renter: also kn
own as tenant, is the person who receives the property under lease. The Parties
shall be duly qualified in the preamble to the contract, ie: if an individual, n
eed to bear the full name, occupation, marital status, type and document number,
full address and if a legal entity, name or company name, number CNPJ (former C
GC / MF), address, and details of the legal representative to sign the lease.
7. Object of the contract
The object of the contract is but the individualization of the property, its des
cription and characteristics. Typically, individual property is with the mention
of the location (address) of the property.
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This clause may include an award of preliminary inspection as part of the contra
ct, as regards the general condition of the property itself, the contract. See t
he first clause of the type of lease business (item 36).
8. Purpose of lease
The purpose of the lease refers to the fate that will be given to the use of the
property, ie the activity to be explored by the lessee. If there is a contractu
al provision that determines the purpose of the property for lease, the lessee c
an not change your destination without the prior written consent of the lessor.
If no prediction as to the purpose of the lease, it is assumed that the use of t
he property must conform to normal standards and traditions according to their c
haracteristics.
9. Lease term
In the commercial lease, the parties may freely contract the duration of the lea
se, ie, the time is free, with no minimum or maximum. Unlike the case with resid
ential rental and the term of the lease is at least thirty (30) months. Try to d
o a contract for a reasonable period of its activity, and do not forget that at
the end of the period stipulated in the contract, the landlord may recover the p
roperty through termination lawsuit called Empty. Empty complaint is a lawsuit t
hat the landlord against the tenant moves to reclaim the property, in view of th
e end of the period provided for in the contract. Remember that the property is
rented for a certain time and the law stipulates that the lessee's obligation to
restore the property to the end of the lease under the same conditions in which
received. Nothing prevents, however, that the parties do agree to an extension
of that lease, which may be one of two ways: Verbal or consensual - the mere res
idence of the tenant in the property 30 days after the deadline established in t
he contract and without objection of the lessor, make the contract indefinitely.
Contract - it is with the development of a new contract or addendum to the cont
ract stipulating new deadline for early termination of the lease.
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The contract extension by an instrument in writing, stipulating new deadline for
the termination of the lease, is safer for parties, as if the contract is for a
n indefinite period, just one party notifies the other to terminate the lease in
30 ( thirty) days.
10. Rent and adjustments
The value of the rent can be freely agreed by the parties, but is not allowed it
s stipulation in foreign currency (dollar, lira, etc. Pessete.) And their connec
tion to exchange rate (dollar, for example) or the minimum wage. Contractual adj
ustments may not be for less than 1 (one) year, according to the rate stipulated
in the contract, such as IGP-M; INPC; IGP; price index, CPI, according to feder
al legislation that established the Real Plan and indexation of the coin, and vo
id any clause that may rebut such a legal order. So much attention to the follow
ing expressions which may be included in some contracts,€since they contravene t
he existing legislation: a) Discounts for first months rent, b) If inflation exc
eeds x percent, there will be readjustment c) discount in the rent payment until
the date of each month x, and reset on the amount (without rent rebate) for pay
ment at the time Y of each month. Immediately following the enactment of the Rea
l Plan in 1994, when the supply of commercial property was very scarce, many con
tracts were made by very narrow term, ie by 1 (one) year or less, and at the end
of the period stipulated, the lessor sought in excess of contractual adjustment
s to the rates, forcing the tenant to request eceitar value, otherwise the landl
ord return the property to the tenant causing high cost, especially with the cha
nge of establishment, its facilities and customers formed in the locality. The t
enant had not much to negotiate, because if they do not accept the conditions im
posed, could not rent a property for your business or could not remain in the pl
ace that was already exerting its activities. From the standpoint of the lessee,
luckily this situation no longer exists. Currently, we can say that this pictur
e was reversed. There are many offers
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Commercial property prices and rents are affordable and remain stable. Contractu
al adjustments are no longer an inconvenience for the tenants that currently can
even reduce the rent by a simple verbal agreement with the lessors.
11. Advance payment of rent
With no guarantee of the lease, the landlord may collect the rent in advance. It
's unlikely event, however, the lease agreements in force, is widely used by lan
dlords during the period that includes the replacement or renewal surety insuran
ce bond, ie, until the restoration of security locatícia. For commercial leases
is prohibited other form of advance payment of rent, constituting a misdemeanor
under the law of the Tenant.
12. Taxes and insurance
Absence of contrary provision in the contract, taxes and charges on the property
, as well as fire insurance, is the responsibility of the lessor. Occurs, howeve
r, that most contracts provide for the reversal of these obligations by giving t
he tenant the responsibility for such payments. In this case, the failure to pay
these obligations by the tenant may give rise to a breach of contract and thus
terminated.
13. Warranties
The security is the means whereby the lessor if the tenant prevents any rich inh
erent lease the property. Eg non-payment of rent, damage to property caused by t
he lessee etc. As security for the lease the landlord may require only one kind
of guarantee (in the same lease), under penalty of nullity. The guarantees under
the law of tenancy are: • Security: It consists in delivering something to guar
antee the lease. If money does not exceed the equivalent of three (3) months ren
t to be deposited in savings accounts. If the tenant hon-
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rar with commitments should get back the deposit at the end of the lease with al
l the benefits from it. Give eye on this market, some insurance companies are of
fering a form of collateral in the form of title capitalization. The tenant must
have financial reserves to buy the paper and leave the capital asset the entire
time duration of the lease, with the due performance of contract. The amount ap
plied will be corrected, plus annual interest and compete for prizes worth listi
ng the title. • Insurance bond locatícia: performed by an insurer authorized by
the Superintendency of Private Insurance (SUSEP). This is a good option for the
tenant does not want to depend on for a relative or friend who is willing to be
your guarantor or no resources available for security. Due to the demands made b
y lessors for broad insurance coverage, such as rent, condo, taxes, damage to pr
operty etc.. Makes the value of bond insurance too high for the tenant. • Deposi
t: "By the contract of guarantee, warrant a person to satisfy the creditor an ob
ligation assumed by the debtor, if he does not obey." New Civil Code, Article 81
8. Among the existing guarantees this is the most common, which is favored by le
ssors. Due to the great responsibility assumed by the guarantor, is increasingly
difficult to find someone who is willing to provide this guarantee. If the tena
nt fails to pay the rent and charges made, the guarantor will be subject to havi
ng their property auctioned to pay debt€yet it is the only property where he liv
es.
14. Improvements
Improvements are works which aim to preserve, beautify or adapt the property to
better serve the needs of users. There are three (3) types of improvements under
the law of tenancy, namely: • Required: works intended to conserve the property
, avoiding damage. Eg Changing the gutter, electrical wiring, roof etc.. • Helpf
ul: works that extend the capabilities of the property, ie, increases or facilit
ates its use. Eg: Construction of a garage, a bathroom, a Duplex etc.
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• Voluptuous: make the property more attractive and is easily removed. Eg: Insta
llation of satellite dish, placing of carpets or walls, etc.. Important to note
that to make certain improvements in the property must be the express written pe
rmission of the owner, and his absence could give rise to justified termination
of the lease, bringing inconvenience to the tenant as having to leave it in the
previous state and still afford with the contractual penalty. Except as expressl
y provided by contract, the improvements made necessary by the tenant, even if u
nauthorized by the lessor and the improvements useful, since they authorized by
the lessor, and medical costs will allow the right of retention of property by t
he lessee . Means that the tenant can retain the property until the landlord pay
s the improvements made. As the improvements voluptuous, these are not medical c
osts, the tenant may remove them from ending the lease property, since it does n
ot affect the structure and substance of the property. Occurs, however, that the
vast majority of contracts provide that any improvement made to the property is
an integral part thereof, without the right to retain the property or compensat
ion for the tenant. This is a waiver of the tenant claims regarding the improvem
ents made. In this case, the necessary and useful improvements made by lessee is
forfeited in favor of the landlord and will be incorporated in the building. As
the improvements voluptuous, the tenant can remove them and carry them, but wit
hout causing damage to property. With the resignation to the improvements, and n
o need to adjust the property to the business needs, the tenant can not claim co
mpensation for expenses incurred. Therefore, make sure the investment will bring
the desired return over the lease term, including for such disbursements, becau
se in the end must return the property to the lessor without any financial compe
nsation.
15. Obligations of landlord
Law of Tenancy the landlord is required to: • Deliver the property in the state
to serve the use. • To ensure the peaceful use of the property during the lease.
• To maintain, during the lease, the shape and destiny of the property.
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• • • • •
Reply by defects or material defects to the lease. Provide the tenant detailed d
escription of the condition of the property. Provide itemized receipt of monies
paid. Pay rates for property management and brokerage. Paying taxes and fees, pl
us the award for fire insurance, unless otherwise noted (expressed in the contra
ct). • Require the tenant, upon request, the vouchers relating to the parcels th
at are being demanded. • pay the extraordinary costs of the condominium.
16. Obligations of tenant
• • • By the Law of Tenant tenant is required to: Pay the rent promptly on time,
or, failing that, until the sixth day of the month maturity. Serve up the prope
rty for the use of agreements, and treat it as her own. Restore the property at
the end of the lease as-received, unless the deterioration resulting from normal
use (wear by the time of painting, for example you are not obligated to pay). L
ead immediately to the attention of the landlord arising from any damage or defe
ct, and any third party turbações. Carry out repairs of damage he has caused (te
nant, their dependents, employees, etc.).. Do not modify the shape of the proper
ty without the consent of the lessor. Immediately deliver to the lessor the docu
ments collection of taxes and charges etc.. Pay the telephone costs and consumab
les. Allow the owner inspected the property (by appointment) to verify their sta
tus. Comply with the obligations of the condominium. Pay the insurance premium b
ond. Pay ordinary expenses of the condominium.
• • • • • • • • •
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17. Assignment, sublet the property and loan
Another important aspect to consider is how the possibility of the tenant to ass
ign, sublet or lend the property.€The transfer means transferring the lease to a
third person outside the contractual relationship. Occurs when the lessee pays
the property leased to another person, for payment or not the commercial point s
o that it uses the property as if the new tenant. The loan is characterized by s
imple free delivery of the leased property to a third person outside the contrac
tual relationship, not intended to replace the figure of the lessee. A sublet oc
curs when the tenant rents part of the property to a third person. In this case
will be considered sublet. The law is very clear tenancy available on these inst
itutes, only allowing the sale, loan or sublease of the property by the lessee,
if there is prior written consent of the lessor. Nevertheless there is express p
rovision in the law of tenancy in this sense, the vast majority of contracts als
o state that fence, so very careful to sell / transfer or lease commercial point
randomly, because the consequences are serious not only for the tenant but also
for the buyer and guarantor.
18. Early termination
As we have seen the landlord must meet the deadline agreed in the lease and can
not terminate it before its completion, even if he undertakes to indemnify the l
essee. This rule, however, admit exceptions, such as in cases of emergency repai
rs in the property determined by the Government; practice of contractual or stat
utory violation by the lessee, for his own use of the owner, your spouse or part
ner or for residential use of a parent or descendant who does not own the proper
ty (applies to commercial lease provided that the property can be used as a resi
dence). The tenant in turn, may terminate the lease before the expiration accoun
t consignor. In this case the lessor must pay the fine provided for contractuall
y. Note that the fine is not due entirely, but in proportion to the remainder of
the contract.
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Example: Term Contract = 3 years = 3 Fine contractual rents Tenant decides to te
rminate the lease after 1 year of its inception. 2 = fine due rents, met regular
ly for 1-year contract.
19. Termination of contract - dissolution
As we saw earlier, contained the term of the lease the lessee's obligation to re
turn the property in the same condition as received. In order to prevent future
problems, the parties shall sign an instrument called a "dissolution of the leas
e, which is the term that's terminated the lease agreement executed between the
parties, putting an end to the commitments made so far. The dissolution must pro
vide for the delivery date of the keys, the conditions of how the property was r
eturned, and the general discharge of rents.
20. Misdemeanor
Set up the following conduct misdemeanor committed by the lessor: a) require val
ue addition to the rent and charges allowed b) require more than one type of sec
urity, c) collecting the rent in advance in cases not provided for in the law of
tenancy. This is the alternative penalty of imprisonment simple (5 days to 6 mo
nths) or fine (3-12 times the value of the last rental). The fine reverts in fav
or of the lessee, and he also has the right to refund you in error.
21. Action renewals
If the renter is in the property for a period of not less than five years, with
a written contract or the sum of more than one contract, and provided that it is
exploring the same field of activity in the last 3 (three) years, such person s
hall inform along a particular lawyer or legal advice SEBRAE / SP to verify that
it satisfies all legal requirements for ingres, sar with Action renovator, who
will give you the right to renew the contract for the same period that remained
in the building.
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For the renter may benefit from the renovator, will bring the lawsuit in the int
erregnum of one year to six months before the expiration of the contract in plac
e that, accordingly, should be for a definite term.
22. Action revisional
It is the right of the lessor or the lessee, after three years of the contract w
ithout adjustment, except those provided under contract to fix the rent, in seek
ing judicial review of rent in order to adjust it to market will be achieved thr
ough technical expertise. Therefore, the revision may increase or decrease the r
ent. This is an extreme measure to be used by the party, if he has frustrated hi
s claim in suit the rent in a friendly way.
23. Preemptive right
If there is interest of the owner to sell the leased property, must necessarily
communicate clearly the tenant of his intention, for it expresses interest in ex
ercising the preference in the acquisition (purchase) of property,€under the sam
e terms granted to third parties. The lessor shall inform the renter about all t
he business conditions, especially price, payment terms, the existence of in rem
as well as time and place where they can be examined documents relating to prop
erty. To do so, the tenant has 30 days of notification or notice from the lessor
to express their interest in purchasing the property, and must do so unequivoca
lly in writing, which advises you to respond by letter with acknowledgment of re
ceipt by mail or by protocol. Failure to fulfill this legal device by the owner,
and provided that the lessee is interested in acquiring the property, he may cl
aim indemnification for damages or require the awarding of the building (requiri
ng the building to another) since in that situation , satisfy some requirements:
a) if the lease agreement endorsed in registering the property at least thirty
days before the sale. b) require the award until six months after registration o
f the sale that will hurt. c) Funding for the price it was sold.
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24. Sale of the property leased to others
If the lessee does not exercise its preemptive rights and property will be sold
to a third person during the lease term, the new owner may terminate the contrac
t, giving the tenant within 90 (ninety) days for the eviction. The purchaser of
property will only be required to comply with the contract before the cumulative
occurrence of three (3) requirements: a) if the contract for a definite term an
d be in force. b) include a contractual clause requiring the purchaser to comply
with the contract. c) if the lease agreement endorsed in the registration of th
e property.
25. Adjustment of rent out of time
If the landlord wishes to raise the rent beyond the legal or contractual term, a
bove the inflation indexes, the tenant is not obliged to accept, but may negotia
te an increase subordinating it to the extension of the lease term, if your inte
rest . If the tenant does not agree with the increase after the deadline, must p
ay the amount stipulated in the contract as it always did. If the landlord refus
es to receive the rent, it is important to gather proof that the tenant's refusa
l by witnesses (two people over 18, preferably not have any formal relationship
with the lessee) to proceed to the deposit or extra-judicial (see item 7.5).
26. Refusal to receive rent
Having denied the lessor to receive rent and charges due, the tenant may deposit
the amount owed out of court. This is an economical and fast procedure which di
spenses with the lawsuit and the attorney. Procedure for Filing Extrajudicial: a
) the debtor (tenant) deposits the amount due on the official banking institutio
n, wherever situated in the place of payment, with regard to monetary correction
, advising them if the creditor (lessor) by letter with acknowledgment of receip
t, signed within 10 (ten) days for the manifestation of denial.
b) After the period without any statement of refusal, it considers will be relea
sed from the obligation the debtor, being available to the creditor the amount d
eposited. c) If there is a refusal, expressed in writing to the banking establis
hment, the debtor may propose lawsuit assignment within thirty days, with proof
of deposit and denial. d) No action proposed within this time period, the deposi
t shall be void and may raise it to the depositor.
27. Rent receipt
The lessee should require itemized receipt every time you pay for the rent or ri
sk having to pay again since it has no proof. As seen above, the landlord is obl
iged to provide itemized receipt of rent and charges locatício, otherwise practi
ce a misdemeanor.
28. Penalty for late payment of rent
Refuse contract clause that establishes a fine of more than 10% (ten percent) fo
r the late payment of rents and charges, as would be in total disagreement with
the current reality experienced by the Real Plan.
29. Default interest
The Federal Constitution provides that interest shall not exceed 12% (twelve per
cent) per year, ie 1% (one percent) per month.
30. Penalty for breach of contract
The law of tenancy does not provide maximum or minimum value of the penalty on g
rounds of breach of contract. Most leases stipulate, as usual, the value corresp
onding to three (3) rents prevailing at the time of the infraction. As already a
nalyzed above, the fine to be imposed should be proportionate to the remainder o
f the contract. Therefore, there is required by contract,€the landlord may accru
e to the amount of rent paid in arrears: fine of 10% + 1% interest per month + r
estatement period (index in the contract).
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31. Code of Consumer Protection
We must remember that the Code of Consumer Protection does not apply to leases i
n general use by non-existence relationship between the parties. To have a consu
mer relationship, mister coexist figures of the supplier and consumer, relating
to due to a product or service. Therefore, landlord and tenant will not have und
er the legislation mentioned, and their rights and obligations regulated by Law
No. 8.245/91 (Tenant Law), Civil Code and the clause in the lease.
32. Hospitals, schools, nursing homes ...
In leases of property used by hospitals, health facilities officers, nursing hom
es, health facilities and teaching authorized and supervised by the Government,
as well as religious entities duly registered, the contract may only be terminat
ed: a) By mutual agreement. b) Due to the practice of law or breach of contract.
c) Due to the non-payment of rent and other charges. d) To carry out urgent rep
airs determined by the Government, which can not be normally executed with the p
ermanence of the tenant or the property may, if he refuses to consent to them. e
) If the owner, promissionário promissionário purchaser or transferee irrevocabl
y and imitated in possession, with registered title, to have paid off the price
of the promise or that, in so doing, is authorized by the owner to ask the prope
rty for demolition, licensed construction or renovation that will result in an i
ncrease of at least fifty percent of the usable area.
33. Location in mall
The leases on Shopping Center have some peculiarities, and common occurrence of
the following facts: The tenants of the Mall are organized into the Association
of Tenants, whose assignment is to inform tenants about their own internal regul
ations, represent them before Management of the Mall, raise recur-
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resources for a "promotional fund" to attract shoppers to the mall, among other
functions. It is usual to adopt a contractual clause that establishes a fixed am
ount as a minimum rent and a percentage on the turnover or revenues. Thus, in th
e months in which the percentage of sales exceeds the value of the minimum rent,
the tenant will pay rent equivalent to applying the percentage of the turnover.
If sales are low and the value of the percentage falls below the predetermined
minimum rent, the tenant must pay the rent required. Often an entrepreneur-lesso
r charges the lessee a given initial importance called "Gloves" and gives the te
nant a lease for a term of five (5) years, ensuring the continuity marketer of g
oodwill for a long period (see Action renewals ).
34. Income tax at source
The monthly income derived from rents paid by the lessee, as the company (legal
person), the lessor (individuals) are subject to the tax withheld at source (IRF
), calculated by application of the progressive force in the month of payment. W
ill be included in the amount of rent received under the default interest, penal
ties for cancellation of the lease, and any other compensation for late payment,
including monetary. In case of payment of rent between corporations (lessor and
lessee), no taxation of income tax at source (RFI) due to the absence of such l
aw. It is worth noting that this rule is also valid when there is an intermediar
y in the lease of real estate.
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35. Jurisprudence
We quote below some jurisprudential menus (decisions of our courts) that best il
lustrate the subject matter in this manual:
DUMP - failure to pay - rent - a payment to the lessor by insurance guarantee -
discharge - occurrence - improper.
The payment made by the insurance bond to the discharge of this valley as lessor
to the lessee and, therefore, the obligation adimplemento. So that, receiving t
he rent of the insurer, lack the essential condition for the landlord eviction n
otice for nonpayment against the tenant.
(2 TACIVIL - Ap s / Rev. 459 683 - 6th Cam. - Rel Judge Carlos Stroppo - J. 07/0
8/1996)
DUMP - mutual agreement - breach - filing the action after 30 days following the
end of the period agreed upon - irrelevance - admissibility.
There is no tenant in the law's requirement that the eviction action based on re
scission has to be filed within 30 days following the end of the agreed upon dea
dline for voluntary evacuation. (2 TACIVIL - Ap s / Rev. 454 060 - 1st Cam. - Re
l Judge Morato de Andrade - J. 04/29/1996)
DUMP - breach of contract and legal - sublet - the absence of explicit consent -
featured - interpretation of Article 13 of Law 8.245/91.
Inafastável the merits of the eviction notice for breach of contract and legal,
because of no legal significance and likelihood to claim verbal agreement to sub
lease if there are legal and contractual obligation (Article 13 of Law 8.245/91)
the prior written consent of the lessor for the assignment of the lease, sublea
se or loan the property. (2nd TACIVIL - Ap s / Rev. 454 385 - 7th Cam. - Rel Jud
ge Luiz Henrique - J. 30/04/1996)
LEASE - Rent - payment - deposit extrajudicial - admissibility.
Although the deposit will extrajudicial provided in standard procedural in natur
e, it is an instrument of substantive law, fit to the extinction of obligations
of a pecuniary nature, it can take hold, therefore, the tenant. (2nd TACIVIL - A
p s / Rev. 451 221 - 7th Cam. - Rel Judge Antonio Marcato - J. 04/09/1996)
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DUMP - failure to pay - rent increased unilaterally by the lessor characterized
Duress - improper.
The pressure of the landlord against the tenant for the rent increase is coercio
n hypothesis, featuring abuse of rights. (2nd TACIVIL - Ap c / REV 453 080 - 1st
Cam. - Rel Judge Magno Araujo - J. 04/15/1996)
LEASE - charges - charge of the lessor (property management fees) - Standard of
public policy - Miscellaneous stipulation by the contractors - inadmissible.
Article 22, VII, of Law 8.245/91 is rule of public policy that can not be amende
d by agreement between individuals. (2nd TACIVIL - Ap c / REV 452 835 - 1st Cam.
- Rel Judge Souza Aranha - J. 04/08/1996)
LEASE - compensation - property damage - liability of the lessee - the applicati
on of Article 23, subsection III, of Law 8.245/91.
If there is evidence that at the beginning of the lease the property was receive
d in good condition, can not be returned damaged, thus this is not deterioration
resulting from normal use. (2nd TACIVIL - Ap s / Rev. 448 838 - 12th Cam. - Rel
Judge Luis de Carvalho - J. 01:02 / 1996)
LEASE - costs - maintaining the shape and destiny of the property - landlord's o
bligation - interpretation of Article 22, III of Law 8.245/91.
It is the obligation of the landlord to maintain for the lease, the shape and de
stiny of the property. (2nd TACIVIL - Ap c / REV 439 305 - 3rd Cam. - Rel Judge
Francisco Barros - J. 11/07/1995) -*-
The menus above were taken from the Bulletin of the Lawyers Association of São P
aulo.
19
36. Model contract for commercial property
The signers of this instrument, on one hand Mr.. ...............................
........., Brazilian, single, engineer, bearer of CPF / MF .....................
.... and the RG in .............................., resident and domiciled at Rua
.......... ....................................., hereafter referred to simply
as lessor, and another to .................., company registered under CNPJ ....
..........., domiciled in the Street ..... ............, this act represented by
its managing partner mr. ...................., Bearer of CPF / MF .............
........... . and the RG in .............................., hereafter referred t
o simply as a tenant, and have just hired for this instrument and the best law,
the following: Clause 1 - OBJECT lease of property located at Rua Japan No. 328
- CEP 02532-000 - Bairro Mirandópolis - São Paulo. Is an integral part of this c
ontract, the report of survey conducted prior and signed by the parties. Clause
2 - THE TERM The lease term is ........................... months, starting in .
....../....../..... and expected to end the day ......./......./...... Clause 3
- PURPOSE The property is leased for use solely for commercial exploitation of b
ar and restaurant. Clause 4 - VALUE AND PLACE OF PAYMENT The monthly rent is $ .
.............. (................................................. ..), the tenan
t agrees to pay punctually to the day ..... following the expiration of each mon
th at the address of the landlord, or other location that you will be informed i
n advance and in writing. Clause 5 - READJUSTMENT OF RENTAL The rent agreed upon
in the preceding clause will undergo annual adjustments based on changes in the
Consumer Price Index published by the Faculty Getulio Vargas (FGV IGP-).€Clause
 6 - DELAYS IN PAYMENT Non-payment of rent within the period set out in clause 4
shall entail a fine of 10% (ten percent), interest of 1% per month and inflatio
n. Clause 7 - USE OF PROPERTY The tenant undertakes to keep the leased property
in good conditions of hygiene, cleanliness and maintenance, keeping in perfect c
ondition its electrical and hydraulic installations, in order to restore it in t
he condition as received, unless the deterioration resulting from normal use. Se
ction 8a - IMPROVEMENTS Any reforms or changes that you want to run the tenant i
n the property, can only be implemented through prior written permission of the
lessor. Clause 9 - REQUIREMENTS OF PUBLIC AUTHORITIES tenant is bound to meet al
l requirements of government he has caused. Clause 10 - ASSIGNMENT, AND LOAN sub
lease the tenant may not assign this agreement or sublet the property in whole o
r in part without prior written permission of the lessor. Clause 11 - COSTS OF C
ONDOMINIUM, TAXES AND CONSUMPTION
All expenses arising from the lease, ie water, electricity, telephone, gas, and
the ordinary condominium shall be borne by the lessee, it shall make such paymen
ts directly in appropriate times. Section 12a - INSPECTION The tenant provides t
he landlord now examine or inspect the building, where the latter deems it appro
priate, provided that an agreed date and time. Clause 13 - expropriation in case
of expropriation of leased property, this contract will be automatically termin
ated, and the Parties, thereafter, all relieved by this contract. Clause 14 - RE
PLACEMENT WARRANTY In the event of death, bankruptcy or insolvency (s) of guaran
tor (s), the lessee will be obliged, within 30 (thirty) days, replace the guaran
tee locatícia. Clause 15th - BOND sign (m) also this contract, jointly with the
lessee for all bonds firmed, the (s) guarantor (s) sr. (A) (s) ............. ...
.......................................... RG ................ CIC .............
...... RG ........................... CIC ................ residents respectivel
y in ........................................ and ..............................
.......... whose responsibility will subsist until actual delivery of the keys o
f the building leased. Clause OR 15th - FILING In this act, the tenant leaves th
e paid amount of $ .................. (Maximum of three rents) as collateral and
must be placed in savings account, joint account, not caring, that will be retu
rned in full, with their income and correction, when the end of the lease, provi
ded that the obligations assumed herein. (If guarantor is void this clause) Sect
ion 16a - PHONE Garnish the property line telephone number ................ shou
ld be retained until the effective delivery of the keys. Section 17a - EXTENSION
OF CONTRACT If this contract extended indefinitely, the landlord and tenant may
rescindílo, provided they notify the other party in writing at least thirty (30
) days in advance. Clause 18A - CONTRACTUAL BREACH The party breaching this cont
ract the innocent party will pay the amount corresponding to three (3) rents pre
vailing at the time of the offense, without prejudice to bear any losses and dam
ages they cause and determine the immediate termination of contract. Section 19a
- FORUM For all questions arising from this contract, the court shall have juri
sdiction in the situation of the property, whatever the domicile of the parties,
and, being thus adjusted, sign this contract within three (3) copies, along wit
h two witnesses who saw everything, that can result in its legal effects. Witnes
ses Lessor Date Lessee Guarantor (a) (s)
22