I. Analysis of Legal Relationship
(A) the lease model
In the traditional mode, the intermediary company signs a house lease contract with additional sublease clauses with the landlord, and then sublets the house to the tenant. In this case, the landlord and the intermediary company formed a lease contract relationship, and the subletting behavior between the intermediary company and the tenant also constituted a lease contract relationship.
(B) Principal-agent model
Under the new model, the intermediary company will sign the entrustment/trusteeship contract and power of attorney with the landlord, and then sign the lease contract with the tenant. The power of attorney signed by the tenant and the intermediary company clearly states: "The intermediary company will handle all matters after the lease and lease on behalf of the client (landlord), including but not limited to signing a contract, collecting rent, replacing the house lock, and applying for water and electricity cuts by the property management company."
In this mode, the principal-agent contract relationship is essentially formed between the landlord and the entrusted intermediary company, and the legal consequences of the direct application of principal-agent between the landlord and the tenant are borne by the principal (landlord).
(3) It should be noted that judging whether the landlord and the intermediary company establish a principal-agent relationship or a lease relationship depends not only on the name of the contract, but also on the content of the contract. The legal relationship formed in essence is analyzed according to the agreed terms. It is very common that house leasing is called principal-agent contract or house leasing contract is called principal-agent contract.
Second, the focus of controversy
(1) If the intermediary company runs away, does the landlord have the right to ask the tenant to vacate the house?
The key to judge whether the landlord can ask the tenant to vacate is whether the intermediary company and the landlord constitute a "lease relationship" or a "principal-agent relationship".
1. Lease relationship-The landlord has the right to ask the tenant to vacate the house.
If there is a lease relationship between the intermediary company and the landlord, when the intermediary owes the tenant rent, the landlord has the right to terminate the house lease contract between the intermediary company and the intermediary company according to the breach clause in the house lease contract. After the termination of the house lease contract between the intermediary company and the landlord, the intermediary company as the lessee has lost the right to sublet the house, and the basis of the lease relationship between the lessee and the intermediary company does not exist. Therefore, the landlord has the right to ask the tenant to vacate the house, and if the tenant continues to occupy it, it will generate a house occupation fee. However, if the tenant is willing to pay the rent to the landlord again, he can continue to live.
If the tenant can't rent a house and causes losses, he can claim compensation from the intermediary company through litigation and other means according to the house lease contract between himself and the intermediary company.
Legal basis:
Article 18 of the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Disputes over Urban House Lease Contracts: If the house lease contract is invalid, the performance period expires or terminates, and the lessor requests the sublease who has the obligation to vacate the house to pay the overdue occupation fee, the people's court shall support it.
2. Principal-agent relationship-the landlord has no right to ask the tenant to vacate the house.
If there is a principal-agent relationship between the intermediary company and the landlord, the tenant can be regarded as fulfilling the payment obligation to the landlord after paying the rent to the intermediary company with agency authority, and the house lease contract signed between the intermediary company and the tenant will directly bind the principal, the landlord and the tenant. At this time, the landlord may not ask the tenant to pay the rent separately on the grounds that the intermediary company has run away after collecting the rent and has not received the rent, nor may he ask the tenant to vacate the house on the grounds that he has absolute ownership of the house. The losses suffered by the landlord should be claimed separately from the intermediary company.
Legal basis:
Article 162 of the General Principles of the Civil Law: A civil juristic act carried out by an agent in the name of the principal within the scope of agency authority is effective for the principal.
Article 402 of the Contract Law: A contract concluded by the agent with a third party in his own name within the scope authorized by the principal. If the third party knew the agency relationship between the agent and the principal when concluding the contract, the contract directly binds the principal and the third party, unless there is definite evidence to prove that the contract only binds the agent and the third party.
(2) The landlord forced the tenant to move out by cutting off water and electricity and replacing the door lock. How should tenants defend their rights?
Under the principal-agent model, although the intermediary company has run away, the tenant still has the right to continue to occupy the leased house, and the landlord may not force the tenant to move out of the house.
The tenant can negotiate with the landlord and explain the legal relationship to the landlord. If no agreement can be reached, when the landlord takes actions such as cutting off water and electricity and replacing door locks, he should first take photos of the property in the house, or call the police directly and ask the police and neighborhood committees for help.
If you really can't live a normal life, as mentioned above, because the landlord has authorized the intermediary company to collect the rent, then the act of handing over the rent to the intermediary company is equivalent to handing it over to the owner, and you can ask the landlord to return the remaining rent by claiming to terminate the contract with the court.
Third, the lawyer suggested that
(1) When an intermediary company is found to be on the run, the landlord and tenant should cooperate with each other, report the case to the public security organ and provide relevant evidential materials. If the intermediary company has constituted a criminal offence, the money recovered will be refunded after the criminal case is concluded.
(2) After the intermediary company runs away, the landlord and tenant can clarify their legal relationship according to the signed contract. Both parties can actively negotiate, negotiate a reasonable loss ratio and sign a new lease contract.
(3) Under the lease relationship mode, if the landlord insists on canceling the contract and driving away the tenant, it is suggested that the landlord send a written notice to the tenant before asking the tenant to move out, asking if he is willing to pay the rent by an intermediary company. If he doesn't want to, he can be given a reasonable time to move out and told that he should claim damages from the intermediary company.
(4) The lessee shall sign the lease contract directly with the landlord as far as possible. Before signing the contract, you should check the property certificate of the leased house and the identity certificate of the owner on the real estate certificate, and ask the landlord whether the house is mortgaged. And keep a copy for future disputes, and provide information for easy archiving.
(5) If the tenant chooses to sign an agreement with an intermediary company, he should inquire about the establishment time, operation status and litigation status of the intermediary company before signing the contract. When signing the contract, the intermediary company is required to show and save the power of attorney and housing registration information explicitly authorized by the landlord, and check with the landlord. Try not to sign a contract with an intermediary company to pay the rent for one year at a time. It is best to pay monthly or quarterly.
(6) When paying the rent, the tenant should transfer the money to the real-name registration system bank account of the landlord or intermediary company as far as possible, not to the company staff, and avoid using cash for settlement. And ask the intermediary to issue a receipt certificate in time.