Is it legal for foreign tenants not to enter the community?

Recently, many cities have welcomed returning workers. Some communities "upgraded" COVID-19 epidemic prevention and control measures without authorization, and posted words such as "All foreigners please return" and "All renters are not allowed to enter the community" at the door, which put the lessee in an embarrassing position for a time. So, is such an "upgrade" measure in compliance with laws and regulations? At present, how to safeguard the legitimate rights and interests of the lessee?

There is no legal basis to prevent all foreign tenants from entering the community.

First, let's see what rights the lessee enjoys. According to the contract law of our country, a lease contract is a contract in which the lessor delivers the lease item to the lessee for use and income, and the lessee pays the rent. Specifically, in the house lease contract, that is, the lessor delivers the house to the lessee for possession, use and income, and the lessee enjoys the right to live, use and income in the rented house after paying the corresponding rent to the lessor. In the case that the house lease contract signed by both parties is legal and valid, no one else may prevent the lessee from exercising his legal rights to the house without legal reasons.

Undoubtedly, under normal circumstances, after the lessee legally rents the house, he enjoys the right of residence, use and income. Then, under the current situation of epidemic prevention and control, will the corresponding rights of the lessee be affected? At present, some local properties, neighborhood committees and village committees have posted notices to persuade all tenants returning from other places to return. Is there a legal basis?

The National Health and Wellness Commission issued AnnouncementNo. 12 in 2008 1 2020120 October, confirming that pneumonia in novel coronavirus belongs to "Class B infectious disease" and taking preventive measures against Class A infectious disease. According to the provisions of China's Law on the Prevention and Control of Infectious Diseases, local people's governments at or above the county level can implement isolation measures for people in places where Class A infectious diseases have occurred or in specific areas of the places, and report to the people's government at the next higher level; The people's government at a higher level that receives the report shall immediately make a decision on approval or disapproval. If the people's government at a higher level makes a decision not to approve, the people's government that implements the isolation measures shall immediately lift the isolation measures. When infectious diseases break out and are prevalent, the local people's governments at or above the county level shall immediately organize forces to implement prevention and control according to the prevention and control plan and cut off the transmission route of infectious diseases.

According to the above regulations, under the severe situation of infection in novel coronavirus, it is very necessary for organizations to take reasonable isolation measures to cut off the source of infection, which is also supported by relevant laws and regulations. But does this mean that it is legal for the property, neighborhood committees and village committees to post notices to persuade all returnees from other places not to let tenants enter the community?

Regarding the relevant rights of neighborhood committees and village committees in the event of an epidemic, according to the second paragraph of Article 9 of the Law on the Prevention and Control of Infectious Diseases, neighborhood committees and village committees shall organize residents and villagers to participate in the prevention and control of infectious diseases in communities and rural areas. In case of an outbreak of infectious diseases, streets, towns, residents' committees and villagers' committees shall organize their forces, unite and cooperate, prevent and treat diseases by groups, assist health administrative departments and other relevant departments, medical and health institutions to do a good job in collecting and reporting epidemic information, evacuating and isolating people, and implementing public health measures, and publicize relevant knowledge on the prevention and treatment of infectious diseases to residents and villagers.

It can be seen that during the epidemic prevention and control period, community neighborhood committees and village committees have the right to assist in performing their duties, but they have no right to upgrade prevention and control measures without authorization. Owners and lessees who return to work normally in other places have the right to use the houses they have purchased and rented. The decisions of community neighborhood committees and village committees should not deprive them of their legal rights, nor have the right to prevent returnees from entering residential areas.

For residential property companies, there is a property service contract between the property company and the owner and lessee. The right of a property company in property management is mainly to formulate residential management measures according to relevant laws and regulations and the actual situation; According to the property management contract and management measures, there is no relevant laws and regulations to give property companies the right to upgrade their own prevention and control measures.

Therefore, at this stage, there are no relevant laws and regulations to support property companies, neighborhood committees and village committees to upgrade prevention and control measures without authorization and deprive all foreign tenants of their basic rights. Under the specific epidemic situation, in order to protect people's property safety, all localities have issued corresponding policies to prevent the spread of the epidemic, which we should respect and actively cooperate with, but not across the board. The lessee's right to lease should be protected by law as well as the owner's right. As the relevant person in charge of the Beijing Civil Affairs Bureau introduced at the press conference on prevention and control work in novel coronavirus held in Beijing on June 5438+1October 3 1, "As long as it is not a confirmed case, those who return to Beijing without obvious fever, cough and fatigue should be allowed to enter the community, but they should wear masks, take their temperature and take protective measures." "It is necessary to regard community prevention and control as the key link of epidemic prevention and control, clarify the principles of scientific prevention and control, and strictly implement various measures for community prevention and control."

Failure to perform the contract due to epidemic prevention and control is force majeure.

Affected by the pneumonia epidemic in COVID-19, the country extended the Spring Festival holiday, and all localities delayed the time for enterprises to return to work, which more or less affected the performance of individual housing lease contracts. If the lessee can't continue to use the house because of the epidemic, can he ask to cancel the contract?

This must first understand the nature of the epidemic. In February of this year 10, Zang Tiewei, spokesperson and director of the research office of the National People's Congress Standing Committee (NPCSC) Law Commission, said, "At present, novel coronavirus has been infected with pneumonia, and the government has taken corresponding prevention and control measures to protect public health. For the parties who cannot perform the contract, it is an unforeseeable, unavoidable and insurmountable force majeure. " It can be seen that this epidemic is a force majeure event for the parties who cannot perform the contract.

Article 94 of the Contract Law stipulates that "in any of the following circumstances, the parties may terminate the contract: the purpose of the contract cannot be achieved due to force majeure ..." If the contract cannot be performed due to force majeure, the liability shall be exempted in part or in whole according to the influence of force majeure, unless otherwise stipulated by law. If force majeure occurs after the delay in performance, the parties concerned cannot be exempted from their responsibilities. Force majeure as mentioned in this Law refers to unforeseeable, unavoidable and insurmountable objective circumstances.

However, it should be pointed out that the application of the law to force majeure is also limited. When an event of force majeure occurs, either party can enjoy the right to terminate the contract only if it completely violates the purpose of the contract. The parties cannot arbitrarily exempt the obligor from all the responsibilities in the name of force majeure, nor does it mean that the relevant obligor will inevitably reduce or lighten its responsibilities without taking any remedial measures. Whether there is force majeure in the performance of a contract depends on the specific circumstances.

If the lessee can't continue to use the house due to the epidemic, it may indeed lead to the failure to achieve the purpose of the contract during the epidemic, but whether this is enough as a reason to terminate the contract and whether it is in line with force majeure depends on the length of the unexpired lease contract, the occurrence and duration of the epidemic and the personal health status of the lessee caused by the epidemic. If the outbreak and duration of the epidemic are relatively short compared with the term of the lease contract, and the personal health condition of the lessee only temporarily or partially affects the performance of the contract, the contract can be continued through negotiation such as extension or change; If it is judged that the above factors are enough to constitute the situation that the purpose of the contract cannot be achieved, the lessee may propose to return the house and may invoke the force majeure clause to terminate the contract.

For example, the lessee Xiao Wang signed a house lease contract with the owner Lao Li, and both parties agreed to lease Lao Li's house for three years from June 5438 +2020 10. 654381October 20th, Xiao Wang returned to his hometown in Shandong for the New Year. Because of the epidemic, although Xiao Wang is in good health, he can't return to Beijing for various reasons. Can Xiao Wang claim to Lao Li to cancel the contract at this time? The answer is no, because Xiao Wang's lease expiration date (i.e. 1, 2023) and his physical condition will not defeat the purpose of the contract, so he has no right to unilaterally terminate the contract.

Whether the rent can be reduced requires communication and consultation.

If the lessee cannot continue to use the house due to the epidemic, it is not necessarily a force majeure situation, and the lessee may not have the right to terminate the contract. Then, if the contract cannot be terminated, can the lessee ask the lessor to reduce the rent?

Article 26 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of the People's Republic of China (PRC) Contract Law stipulates that after the establishment of the contract, the objective situation has changed significantly, which was unforeseeable when the parties concluded the contract, and was not caused by force majeure. Continued performance of the contract may not achieve the contract purpose for one party, obviously unfair. If the parties request the people's court to modify or terminate the contract, the people's court shall decide whether to modify it according to the principle of fairness and the actual situation of the case.

At present, there is no law directly stipulating that the lessee can ask the lessor to reduce the rent because of the epidemic. In practice, if the lessee can't go home due to the epidemic and other factors, and can't terminate the contract due to force majeure, the lessee can communicate and negotiate with the lessor, ask for partial rent reduction according to the principle of fairness, determine the rent that has occurred since the epidemic began, and negotiate the rent standard and rent payment time in the foreseeable period.

In short, if the lessee rents out the lessor's house according to law, he will enjoy the right to live and use the house. At present, community prevention and control is the key link in this epidemic prevention and blocking war, but the relevant subjects should prevent and control scientifically and accurately within the framework of laws and regulations, and also protect the legitimate rights and interests of relevant rights holders. (Author: Beijing Chaoyang District People's Court)

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What is "force majeure"

Force majeure is often mentioned when signing a contract, and it is agreed that if civil obligations cannot be fulfilled due to force majeure, civil liability will not be borne. Where there are other provisions in the law, those provisions shall prevail. Then, how to identify force majeure in law?

Force majeure is stipulated in the General Principles of Civil Law and Contract Law of our country, which refers to an objective situation that cannot be foreseen, avoided and overcome. Whether a situation belongs to force majeure should be comprehensively identified from the following aspects:

One is unpredictability. The law requires that the event that constitutes force majeure must be that the parties cannot foresee whether the event will happen when concluding the contract.

The second is inevitability. After the contract came into effect, although the parties took timely and reasonable measures for possible accidents, it was inevitable that such accidents could not be prevented objectively. If the occurrence of an event can be completely avoided by timely and reasonable actions of all parties concerned, then the event cannot be considered as force majeure.

The third is insurmountable. Invincible means that both parties to the contract cannot overcome the losses caused by unexpected events. If the consequences of an event can be overcome through the efforts of all parties concerned, then the event is not a force majeure event.

The fourth is the performance period. For a specific contract, the events that constitute force majeure must occur after the signing of the contract and before the termination, that is, during the performance of the contract. If an event occurs before or after the conclusion of the contract, or if one party delays the performance and the other party agrees, it cannot constitute a force majeure event of this contract.

Our country's laws do not clearly stipulate which events are force majeure, which are generally considered to include war, natural disasters, strikes, riots, government actions and so on.