Commercial space lease agreements in larger facilities usually provide for monthly payments towards rent, service charges and costs of utilities.

Service charges are usually paid by tenants to a landlord in the form of a monthly advance payment of a certain amount. Then, at the end of the year, they are usually settled on the basis of a statement of costs actually incurred by the landlord in a given year for the maintenance of the entire leased property. The final service charges paid by all tenants should therefore correspond to the operating costs actually incurred by the landlord. As a rule, each tenant has the right to review the annual operating cost statement prepared by the landlord to make sure that all the costs he covers together with other tenants have actually been incurred in the amount stated by the landlord.

If the landlord is a perpetual usufructuary of the land on which the building with rental space is located, then one of the costs incurred by the landlord in connection with the maintenance of the building and transferred to the tenants as part of the service charges is the perpetual usufruct fee paid by the landlord to the Treasury States or local self-government units.

The amount of the fee for perpetual usufruct of real estate may be changed on the basis of the notice on termination of its current amount together with an indication of its new amount delivered by the competent authority. The landlord who is the perpetual usufructuary of the real estate may in such a situation, after receiving such notice, pay the increased fee resulting from the notice or may alternatively submit an application to the local self-government board of appeal for determination if the increase of the fee is justified. Then, in the event of receiving an unfavourable decision of the local self-government board of appeal, the landlord may refer the case to the court. This means that, if the landlord decides to oppose the increase of the fee, the dispute regarding its amount may last for years.

Until such a dispute is finally resolved, the landlord is obliged to pay perpetual usufruct fee in the current amount, the one from before receiving the notice. However, it should be remembered that the new amount of the fee, which will be finally determined by local self-government board of appeal or the court, will apply not from the date the decision becomes final, but from 1 January of the year following the year in which the notice on the new amount of fee was delivered. The new amount of the perpetual usufruct fee determined after the dispute has been resolved may be the same as the one specified in the notice or lower.

For example, the annual perpetual usufruct fee for a specific property until 31 December 2017 was PLN 100,000. Before the end of 2017, the relevant authority changed its amount and demanded a fee of PLN 200,000 from 1 January 2018. The landlord, who is a perpetual usufructuary, appealed in this case to the local self-government appeals board, and then to the court. For 2018 and 2019, the landlord paid fees in the amount of PLN 100,000 for each year. Ultimately, the court decided in February 2020 that the new fee should be PLN 150,000. In such a situation, the landlord was obliged to pay an additional PLN 50,000 with interest for 2018 and 2019, in addition to the already paid PLN 100,000 for each of these years. For 2020 and the following years, the landlord had to pay PLN 150,000 until the next change of the fee.

Therefore, the question arises how should the landlord pass on to tenants the additional cost of the perpetual usufruct fee for the period of the dispute over its amount?

Should the landlord, during the period of dispute, pass on the tenants the perpetual usufruct fee in the amount resulting from the notice, although he is not yet and may never be obliged to pay the fee in this amount? What if tenants do not want to cover the landlord’s costs, which the landlord has not incurred at all and may never be obliged to incur at all? Should the landlord ask tenants to cover the fee which will be due for the period of dispute only after the dispute is resolved? What if new tenants do not want to cover the perpetual usufruct fee for a period before they become tenants?

Lease agreements very rarely regulate this matter which may lead to disputes between landlords and tenants.

It seems that the best solution to this issue, which should be provided for in the lease agreement, would be to agree that during the period of the dispute as to the amount of the perpetual usufruct fee, the landlord has the right to create a special reserve fund to cover a possible higher fee for perpetual usufruct. In connection with the above, the landlord should have the right to include in the costs settled under the service charges also the amount of the difference between the current amount of the perpetual usufruct fee actually paid by the landlord and the amount of the perpetual usufruct fee indicated in the notice. This difference should be kept by the landlord in a separate bank account and should not be disposed of by the landlord until the dispute is resolved.

If, according to the final verdict of the local self-government board of appeal or the court, the new perpetual usufruct fee should be paid by the landlord in an amount equal to the amount indicated in the notice, the landlord will be able to use the amount of the difference kept as a reserve in the separate bank account in full to cover the costs related to the new fee for the duration of the dispute. If, in accordance with the final verdict, the new fee that should be paid by the landlord for the duration of the dispute is lower than that indicated in the notice, the landlord will be able to use the appropriate part of the difference amount held as a reserve in the separate bank account to cover the costs related to the new fee during the duration of the dispute and the remaining amount of the difference should be immediately returned to the tenant.

If you negotiate a lease agreement, have doubts as to its interpretation or correctness of its provisions, write to us. We specialize in such cases.

Bartosz Dębski

Partner, Legal advisor
bartosz.debski@ckpartners.pl