WHAT CONDITIONS ARE THERE FOR THE SALE OF A PROPERTY TO END A LAWFUL LEASE?

02 Dec WHAT CONDITIONS ARE THERE FOR THE SALE OF A PROPERTY TO END A LAWFUL LEASE?

In law not everything is as with the naked eye it seems or as we are told with some repeated slogans by friendships or by networks. That’s why it’s never advisable to be influenced by those types of short sentences that tell us things like “even if you sell the house the tenant will remain still in it” or “When the tenant has not registered his lease he will have lost his right to continue on it if it’s sold.” They are absolute simplifications of those that so badly marry a real world of law. We need to examine a situation in which in 99% of cases we must necessarily go beyond a slogan , a rule or a catchphrase no matter that we see it repeated out there.

This is the case with the issue I raise here, and which everyone seems to know as much as to have an opinion or advice.

So knowing that things can’t be simplified like this, let’s examine it, despite all summarized and synthesized: when the sale of a home, or a property in general will have the legal effect of ending a previous lease still in force. Note that this is a summary and that in line with what I have been saying, the summaries do not cover everything by their own definition, but at least we will not fall after reading what comes next into excessive simplifications that would be as much as falling into falsehoods after all.

And the conditions that must be met for the “sale to remove the rent” are the following.

1. The good faith of the buyer.

Although some lawyers consider that this good faith disappears by the simple knowledge on the part of the buyer of the existence of a lease on the estate, another stream of opinion perhaps with a more legal basis requires that in order for good faith to be eliminated a intentional activity or fraudulent purpose in the buyer must be produced that is intended to harm the tenant not registered in the Land Registry directly. The consequence that stems from the separation between good faith and knowledge makes the registration in the property registry that we will now see is practically the only safe means of protecting the previous lease of the tenant.

One case that would eliminate the demanded good faith we are talking about would, for example, be to conclude a predetermined contract by the owner and buyer with the aim of causing unlawful harm to a tenant, so for that reason they cannot ignore his existence.

Of course, when a tenant has registered his right (lease) in the Land Registry there is no possibility of good faith on the part of the seller or buyer when they want to end the lease by the sale subsequent to that inscription. The protection afforded by the Land Registry to the tenant operates here fully even if the buyer claimed that for any reason he had not known the existence of such registration.

2. The necessary registration of the deed of purchase or the acquisition in the Land Registry.

So in order for the buyer or acquirer to terminate the lease, he/she needs to register his domain by purchase or acquisition, because as long as the domain is not registered, the previous lease will prevail even if it is not registered. And in this case there can be very curious situations that benefit the tenant if we think for example of his right in any case to be notified of the sale as a tenant and if on top he has a right of first refusal and right of purchase at the same price withdrawal… We’d be given one of those scenarios of races to the Registry.

3. It must be a real purchase or with price and not a free donation or for free purchase.

The for free acquisition by the third party would require the position of the lessee is respected as a result of the transfer of the contractual position since at certain points of the legislation in force a transfer for free is not only not comparable to a sale which is logical, but does not even have the effects of this in the field that we are dealing with here that is the prevalence or not of an existing lease when the property is transmitted.

And let’s note that what matters here is the real and effective nature of the sale business and not the name given by the parties when, for example, they simulate a sale when in reality there is neither price nor consideration equivalent.

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