상가건물임차인의 계약갱신요구권

Business Tenant s Right to a New Lease

A landlord may be in a position to charge a far higher rent from the existing tenant on the renewal of the tenancy than he or she would be able to do if he or she was to let the premises to a new tenant on the open market. Parliament intervened to prevent this potential injustice by enacting the Business Tenancy Protection Act 2002. It entitled a business tenant to the right to request a new tenancy. The provisions with regard to the right to a new lease is criticised either for depriving the landlord of right to forfeit the tenancy or for not offering adequate protection to the tenant. The 2002 Act, s 10 contains the core of the security offered by the Act. The basis of this security is automatic continuation. A tenancy which falls within the Act will not come to an end by effluxion of time unless it is terminated in one of the ways set out in the Act. The methods of termination available under the 2002 Act can be divided into two categories : (i) those Civil Code methods of termination which are preserved by the Act; and (ii) the statutory methods of termination which are provided for in the Act. Under the Civil Code there are two ways in which a tenancy to which the Act applies can be brought to an end: (a) by the tenant giving notice to terminate the tenancy under Art. 635; (b) by the landlord forfeiting the tenancy in the event of the tenant breaching an obligation under the lease. Under the 2002 Act there are three ways in which a tenancy to which the Act applies can be brought to an end : (a) by the landlord giving notice to terminate the tenancy under s 10 (4); (b) by the landlord refusing reasonably a new tenancy under s 10 (1); (c) by the tenant giving notice to terminate the tenancy under s 10 (5). The second of these options is applicable where the tenant requests a new tenancy. The Business Tenancy Protection Act, s 10 (1) provides eight grounds upon which the landlord may oppose a tenant s request for a new tenancy. Where a landlord refuses a new lease under grounds 1, 4, 5, or the foregoing part of 8, the basis of the refusal is that the tenant has breached some obligation in the lease. In the case of ground 3 there is no loss to the tenant because proper compensation is provided by the landlord. Grounds 6, 7, and the latter part of 8, however, are based not on the default of the tenant but on the needs of the landlord. The tenant therefore should be given a right to compensation where the landlord has refused a new lease under any of these three grounds. The right to a new lease is not provided by the Residential Tenancy Protection Act 2002. It should be imported into the Act.