On The Housing Tenant Right Of Priority

The law of our country does not have the right to give priority to the lessee of the house. But as the housing rental market has become increasingly active, the priority of the lease has appeared in the local regulations of some parts of our country, and frequently appeared in the terms of the parties agreed. Some scholars, judges also believe that the priority of the right to lease can derived from the right to purchase, and with reference to the applicable provisions of the right to purchase. But in judicial practice, the issue about the priority of the right to lease is still quite prominent. For example, how the court should decide when the original lessee claims the priority of the lease after the expiration of the original lease contract, how the parties should perform, the priority of the lease shall be determined by the legislation or the parties to the agreement. Due to the fact that the judge is different from the understanding of the facts and the law, in the face of such cases, often results in similar or identical cases with different decisions. At this point, the lessee's legitimate rights and interests are vulnerable to infringement. Therefore, this essay tries to put forward my own views on how to establish the priority of the lessee's right of the lessee.This essay mainly includes the following four parts:The first part introduces the current situation of the priority of lease. In reality, most of the disputes about the right of the priority of the lease are based on the agreement of the parties. In the lease contract, the agreement of the parties on the priority of the lease is usually not standardized, and there are differences in understanding, this phenomenon has led to the avoidance about this right. The priority of the lease is easily leading to litigation in the course of practical application. In the proceedings, as the lack of relevant provisions and basis about the priority of the lease in the same conditions, the exercise of the period, the exercise of qualifications, the tenant rights restrictions and other aspects, the judicial practice and real life can not be connected. Although the priority of the lease has emerged in some regions' relevant provisions like Shanghai, Shenzhen, Wuhan, Xiamen, Zhengzhou, and so no, it can't be applied in judicial practice. There are two different attitudes towards this right in the academic circle. That's “legal right” and “legislative blank”. In a manner of speaking, the priority of the lease on the confusion in the agreement, the gaps in the legislation and the differences in the theory increases the difficulties in judicial practice. Therefore, in order to achieve the desired results, we need to analyze the priority of the right of lease in theory and legislation.The second part proves the legitimacy of the priority of lease. Firstly, from the legal principle, priority of the lease being the value on maintenance of the market order, improvement of the transaction efficiency, reflecting the value of the system of fairness and justice. To a certain extent, it reflects the demand of social life to the legal rule. Secondly, from the comparative law, the right of business lease renewal system of France, the principle of German free commercial renew, the renewal right of commercial lease in the UK and residential rental control system in the United States all play an important role in protecting the rights of the lessee. Although the bottom right of China in the Ming and Qing Dynasties died out finally because it almost deprived of the ownership of the house owner and leading to extreme imbalance in the interests of both parties, it had played an important role in protecting the long-term business of commercial tenants. From the judicial practice at home and abroad, renewal rights plays an important role in protecting the interests of the lessee and to be affirmed and supported of legislation or customary law. But it more radical then the right of the priority lease. Therefore, the relative tolerance right of the priority lease is more suitable for China's current economic and legislative development trend.The third part mainly analyzes the concept, nature, elements and so on. Our country legislation does not have a clear regulation about the right of priority lease at present. According to the principle of law and the spirit of legislation, Combined with the relevant provisions of local laws and regulations and co-opted preferential purchase right stipulated by contract law, I put forward my own views on the concept of the priority of the lease. The concept about priority of the lease can be defined as: When the lease term expires, if the original house continues to rent and the tenant want to rent the original house, the original tenant have the priority right compared to others. In nature, the right of priority lease is expectant right, the right to request a compulsory contracting obligation, obligatory right with the characteristic of real right. In the exercise of the conditions, mainly includes the following four aspects. Firstly, there must be a long term lawful and valid lease contract relationship. Secondly, exercise subject is lessee. Thirdly, the lessor continues to rent the house. Lastly, the exercise of this right must be under the same conditions. In the exercise of the way, including the lessor should notify the lessee within a reasonable period of time and the lessee shall exercise the right of priority within a reasonable period of time. If the lessee sublease illegally or breach the contract or the lessor leasing publicly, but the tenant did not participate in, that can be used as a valid reason to exclude the priority of the lease.The fourth part is the analysis of how to realize the right of the lessee. Because the lessor has an indirect compulsory contracting obligation, when the lessee's priority of the lease can not be achieved for infringement, only the lessor shall be required to bear the liability for breach of contract or to compensate for the loss. In the process of the realization about the priority of the lease, it may conflict with other rights. This conflict includes the conflict with the third person's rights of the lessee, and the conflict with some of the common use and the conflict with the subtenant priority of the conflict. In my submission, the lessee's priority of the lease can not against the lease of the third person, the lessee's right of priority shall be make place for the usage rights of some common people, The lessee's priority shall be given priority to the subtenant priority.