Camila Vieira Guimarães
Lawyer at Marcos Martins Advogados
Since the beginning of the pandemic, lawsuits involving commercial leases have been brought before the courts in an attempt to revise contracts, under the allegation of the economic and financial impact of the pandemic on business activities, culminating in contractual imbalance.
The São Paulo Court of Justice (TJSP) already has a base of decisions involving the issue, as can be seen from the injunctions granted.
The TJSP has decisions granting injunctions to reduce commercial rents, based on proof of the tenant’s financial incapacity during the pandemic, as well as the real impact of the crisis on its activities. The mere allegation of a generalized financial crisis due to the pandemic is not presumed, and it is up to the party to prove their commercial and financial insufficiency to justify any intervention by the judiciary in the contractual relationship.
An injunction issued by the 1st instance judge granting the full suspension of rent payments to the tenant was overturned in the 2nd instance, on the grounds that the landlord cannot bear the consequences of the epidemic crisis alone, i.e. recognizing that the risks in any business belong to both parties. For this reason, it was decided to arbitrate 30% of the rent for as long as the tenant’s establishment remains closed due to a public order, as a way of seeking to rebalance the contractual relationship[1].
There are also several decisions by the TJSP granting an injunction to reduce the rent by 30%, provided that the requirements authorizing the injunction and the tenant’s economic and commercial incapacity are proven.
[1] TJSP; Agravo de Instrumento 2081691-07.2020.8.26.0000; Relator (a): Antonio Rigolin; Órgão Julgador: 31ª Câmara de Direito Privado; Foro de Itapetininga – 3ª Vara Cível; Data do Julgamento: 14/07/2020; Data de Registro: 14/07/2020.
