The Commercial Building Lease Protection Act (hereinafter referred to as “this Act”) contains various provisions to protect commercial building tenants. However, if a lease agreement is concluded with provisions that ignore the provisions of this Act by a socially and economically powerful landlord, and its validity is recognized, the tenant protection provisions stipulated in this Act will be rendered void. In accordance with the legislative intent of this Act to protect tenants, Article 15 of this Act (Article 10 of the Housing Lease Protection Act) stipulates that any agreement that violates the provisions of this Act and is disadvantageous to tenants is invalid. This is a so-called one-sided mandatory provision.
A unilateral mandatory provision is a legal provision that states that when the content of the agreement between the parties to the contract is advantageous to the relatively weaker party (the lessee), the agreement is valid even if the legal provisions are not followed, but when it is disadvantageous to the weaker party, the content of the agreement between the parties becomes invalid and the legal provisions are automatically applied instead. It is a representative special provision that is pointed out as violating the unilateral mandatory provision in relation to housing or commercial leases.
① The tenant will move out after one year.
② The tenant waives the right to request contract renewal.
③ The deposit and monthly rent are increased annually at the landlord’s discretion in accordance with the market price. The tenant cannot raise an objection to the landlord’s increase in monthly rent.
④ If a tenant is late in paying rent, the landlord can dispose of the tenant’s belongings.
⑤ If the lessor changes due to a house sale, the lease agreement is not transferred.
⑥ For example, the key money for the relevant commercial property is not recognized.
The criteria for judging whether a lease agreement is disadvantageous or advantageous to the tenant in light of this Act should be judged based on each individual clause in light of the legislative intent of this Act, which was to protect the socially and economically disadvantaged tenant, and should not be judged based on the entire lease agreement.
The standard for judging whether a lease agreement is disadvantageous or advantageous to the tenant in light of this Act should be judged based on each clause in light of the legislative intent of this Act, which was enacted to protect the socially and economically disadvantaged tenant, and should not be judged based on the entire lease agreement. Accordingly, even if the lease agreement is advantageous to the tenant as a whole compared to this Act, if some of the clauses are disadvantageous to the tenant, only those clauses will be invalid. However, in some cases, if it can be recognized that there are special circumstances that are not actually disadvantageous to the tenant by comprehensively considering the circumstances surrounding the conclusion of the contract and other circumstances, it may be deemed not to conflict with mandatory provisions.
Our Supreme Court, in its ruling on the mandatory provision of Article 652 of the Civil Act, has ruled that whether or not an agreement is disadvantageous to a tenant should first be determined by the terms of the contract itself; therefore, unless there are special circumstances that make it substantially disadvantageous to the tenant after comprehensively considering the circumstances surrounding the conclusion of the contract, the agreement is disadvantageous to the tenant and is invalid according to Article 652 of the Civil Act. However, if there are special circumstances that make it substantially disadvantageous to the tenant, it should be deemed not to conflict with the mandatory provision.
Attorney Lee Yong-hwa of Ubiz Law Firm has extensive experience and deep expertise in the real estate field. Through his long practical experience, he has handled a variety of real estate-related issues and provides reasonable and practical solutions to customers.
UBIZ Law Firm, 6th floor, 418 Nonhyeon-ro, Gangnam-gu, Seoul 02-3452-9290
