Every tenancy, either contractual or statutory, creates rights and obligations both, to the landlord and the tenant. A significant factor to be taken into consideration is the possession of the immovable property and whether or not it was given to the tenant at the beginning of the tenancy or to the landlord at its termination, at what time and under which terms.
Possession creates or restricts rights or obligations and may release the landlord who gave up possession of the property from obligations. In the event that the tenant terminates the tenancy agreement but fails to give up possession to the landlord a question arises as to whether the maintenance of possession negates the termination.
The notice of termination constitutes a unilateral act of the tenant. For the purpose of answering the aforesaid question, the contents of the notice are examined, as well as whether or not the notice was rightly given, what was its effect and whether or not the tenant delivered possession of the immovable property on the basis of the notice.
When the tenant exercises his contractual right and delivers possession of the property, the tenancy is terminated. In the event he has obligations towards the landlord he has to fulfil them. However, the preservation of possession of the premises by the tenant negates the notice of termination and may constitute a reason for eviction.
The withdrawal of the notice of termination of the tenancy by reason of not delivering possession of the premises constituted the subject matter of a recent judgment of the Rent Control Court issued upon an application of a landlord claiming the eviction of his tenant, rents in arrear, means profits and damages caused to the premises.
The tenant, despite sending a notice of termination, maintained possession of the premises and the court examined whether the tenant was estopped by his conduct from invoking the notice, as well as the lawfulness of his termination. It is noted that simultaneously with the termination of the tenancy by the tenant, the landlord also terminated the tenancy agreement, since the tenant owed to him rents in arrear and despite giving him 21 days’ notice to pay them, he did not respond.
The termination of the tenancy by the landlord was deemed lawful but the termination of the tenancy by the tenant was not. Furthermore, the tenant maintained possession of the premises and did not pay the rent. The court also held that the notice of termination on behalf of the tenant was negated by his conduct. According to the law if the tenant sends a notice he will abandon the rented premises and the landlord acts upon it, but the tenant does not leave and the landlord suffers damages, it is a case for eviction.
The fact the tenant stayed in the premises after the termination of the tenancy by the landlord rendered him a statutory tenant. Furthermore, the tenant, as well as his guarantor, had the obligation to pay the rent until the delivery of possession to the landlord, as well as the obligation to reinstate the premises to the condition they were in at the beginning of the tenancy.
The landlord requested the delivery of possession and he did not remain inactive but the tenant did not respond. The court did not concur with the tenant’s effort to shift responsibility for the delivery of possession of the premises to the landlord and issued a judgment both against the tenant and his guarantor for rents in arrear, means profits until the delivery of possession and damages to the premises.