Residential Tenancies Research Articles

주택임차인의 계약갱신요구에 따른 계약의 갱신과 갱신된 계약의 해지 - 대법원 2024. 1. 11. 선고 2023다258672 판결을 중심으로 -

The subject judgment concluded that if a notice to terminate a renewed contract based on a residential tenant's demand of a lease for renewal reaches the landlord before the commencement of the renewed contract's rental period, the effective date of the termination is three months after the notice of termination. To examine the validity of the ruling, the court first examined the provisions relating to the right to renew and termination under the Civil Code and the Residential Tenancy Protection Act, and also examined the validity of the lower court's ruling that the tenant's right to terminate is restricted if there is an agreement between the landlord and the tenant regarding the rental period of the renewed contract. Regarding the effective date of the renewal, the tenant's right to renew the contract is in the nature of a right of formation, which means that the renewal is effective when the notice of intention to renew reaches the landlord. However, the time at which the renewal becomes effective and the time at which the renewal period begins to run should be determined differently, with the time at which the renewal period begins to run being the day after the expiration of the term of the original lease. In addition, if the tenant gives notice of termination of the renewal and the notice reaches the landlord before the start of the renewal term, it is reasonable to assume that the termination is not effective until three months after the start of the renewal term. If the termination is effective three months after the tenant's notice of termination reaches the landlord, it is contrary to the plain meaning of the provisions of the Residential Tenancy Protection Act, unduly harsh on the landlord, and leaves room for other problems in practice. In conclusion, while the target judgment aims to achieve the purpose of the Housing Lease Protection Act, which guarantees the tenant's right to live, it is difficult to fully agree with the conclusion, and protecting the interests and trust of not only tenants but also landlords should not be overlooked.

Neither housing nor hotel

One of the many impacts of the Covid pandemic on Canadian cities was the complete collapse of short-term rental (STR) markets, as long-distance travel nearly vanished for more than a year. Many dedicated STRs shifted back to the long-term rental market, but others remained on STR platforms such as Airbnb but with minimum stays of one month or more—a land use we describe as “medium-term rentals” (MTRs). This paper provides a planning analysis of online-platform-mediated MTRs in Canadian cities and their housing-market, land-use, and regulatory implications. First, we identify and explore the regulatory grey zone inhabited by MTRs, which appear to be neither standard residential tenancies nor short-term tourist accommodations. Second, the paper provides a brief empirical overview of the emergence of MTRs during and after the Covid pandemic in Toronto, Montreal, and Vancouver. Third, the paper uses a policy case study of situations in which Ontario’s Landlord and Tenant Board has been asked to adjudicate non-standard tenancies to establish whether there is a planning basis for distinguishing medium-term rentals from other tenancy types. The paper concludes by identifying a key planning principle which could allow Canadian municipalities to pull MTRs out of the regulatory grey zone: regulating type of stay instead of length of stay.

Contesting the property paradigm amid ‘radical’ constitutional change: Living Rent and the Private Residential (Tenancies) (Scotland) Act 2016

Abstract This paper examines the interaction between ‘radical’ constitutional change, in the form of political devolution, and property systems in the UK, from the perspective of those at the margins of those systems. The paper adopts a property ‘from below’ approach and critically applies the theoretical framework developed by AJ van der Walt in Property in the Margins. In that book, van der Walt outlined how property systems frequently operate to resist democratic and constitutional change and transformation through the functioning of the property paradigm, which refers to a set of doctrinal, rhetorical, and logical assumptions and beliefs about the relative value and power of discrete property interests in law and in society. Building on van der Walt's work, this paper takes eviction, which represents the landlord's apex right, as a case study and considers how qualifications of that right have been reformed by the Private Residential Tenancies (Scotland) Act 2016. It is argued that while the strength of the property paradigm is apparent in both English and Scottish property systems, Living Rent, a national tenants’ union in Scotland, have organised tenants to effectively contest and, in some respects, displace the logic of the property paradigm during the reform process.

Crim-eviction: Eviction and Social Control at a Residential Tenancies Tribunal

Crim-eviction: Eviction and Social Control at a Residential Tenancies Tribunal

‘채권적 전세’의 본질과 ‘전세보증금’의 기능 및 역할

An unregistered lease is a lease that has not been registered even though there is a lease agreement. This is a widely used method of real estate rights. Usually, a ‘cheonse’ is a property right under the Civil Code, which requires an agreement to establish a cheonse and payment of a ‘cheonse’. Then, based on ‘property right legalism’, the ‘cheonse’ is registered and has the effect of a property right under civil law. However, in the absence of registration, the ‘cheonse’ is only a bond with the agreement of the parties. Therefore, the status of an unregistered ‘cheonse’ is promise. ‘The Residential Tenancy Protection Act’ applies to unregistered leases to protect the status of unregistered ‘cheonse’. However, unregistered ‘cheonse’ are still economically unstable. And there is still legal instability. This has recently become a problem with “empty can cheonse” or “cheonse scams”. We will look at how to ensure legal stability based on the nature of unregistered ‘cheonse’, and how to ensure economic stability based on the role and function of security deposits for unregistered ‘cheonse’.

The Succession to Right of a Residential Tenancy by the Same-Sex Cohabitant

The Succession to Right of a Residential Tenancy by the Same-Sex Cohabitant

Critique of the Provisions of the Russian Civil Code on the Termination of Tenancy Agreements in a Comparative Legal Perspective

Imperatively established by the Russian civil legislation judicial procedure of termination of the residential tenancy agreement by the landlord is criticized in the article. Evaluation of its effectiveness for the formulation of the proposals for the development of the art. 687 of the Russian Civil Code is the purpose of the study. Its objective is comparative analysis of the legal regulation of the termination of the residential tenancy agreement by the landlord under the Russian Civil Code, legislation of 4 republican (Texas, Idaho, Utah, Wyoming) and 4 democratic (Washington, New Mexico, New York, Illinois) American states with taking into account legal regulation of relevant relations in Germany and France. The purpose and the objective of the study determine the predominant use of the method of comparative legal analysis. Two alternative models of reform of the art. 687 of the Russian Civil Code, whose provisions are recognized as a relic of Soviet law, ineffective in a market economy, were offered by the authors. The experience of Germany and France is an argument in favor of so-called regulatory model of reform that allows the unilateral termination of the residential tenancy agreement by the landlord only on the reasons provided by law (not by the agreement). An analysis of the legislation of both republican and democratic American states permits characterizing it as a less restrictive to the principle of freedom of contract, since it allows stating in the agreement the reasons for its unilateral termination by the landlord. However, it excludes the right of the parties of the residential tenancy agreement to provide to the landlord the right of its unmotivated unilateral termination. Unlike legislation of the USA, this right might be provided to the landlord under so-called dispositive model of reform, proposed by the authors as the closest to the actual situation in the Russian market of residential tenancy. It is assumed that the condition for realization of this right must be a notice to the counterparty at least 1 month in advance. Within this model right of unmotivated unilateral termination of the agreement may be provided to the landlord only if the same right is granted to the tenant. One of the advantages of this model is that its implementation will eliminate due to lack of demand the widespread practice of stating in the residential tenancy agreement restricting the legal capacity of citizens and therefore void conditions. It will contribute to the unloading of the Russian judicial system by eliminating disputes over these conditions.

Substandard South Auckland housing: findings from a healthy homes initiative temperature study

ABSTRACT There is strong evidence demonstrating cold housing prevalence in Aotearoa New Zealand. Whānau (families) were recruited from a healthy homes programme based in South Auckland. Forty whānau consented to participate in a temperature-based study that assessed the ability of homes to protect against outdoor temperatures. In this observational study, temperature sensors measured night-time indoor temperature every 15 min from May 2020 to October 2020. Whānau were provided with healthy homes education and practical suggestions to help make homes warmer and dryer. Notably, each device (and house) spent 85% or more of the time below the World Health Organization Housing and Health Guidelines recommended minimum indoor temperature of 20°C for vulnerable groups. The lower standard of 18°C for more general populations referenced in the Healthy Homes Standards was not met over 60% of the time. Over a quarter of the time temperatures measured inside homes were below 12°C. If Māori and Pacific whānau continue to live in substandard housing due to residential inequities, they will continue to experience inequitable health outcomes related to cold housing. Solutions include the anticipated Residential Tenancies (Healthy Homes Standards) Regulations, supports for tenants and support with housing-related costs.

Intersections between Precarious Housing and Residential Tenancy Law: A Review of A Complex Exile and Recent Legal Scholarship on Residential Tenancies

Intersections between Precarious Housing and Residential Tenancy Law: A Review of A Complex Exile and Recent Legal Scholarship on Residential Tenancies

"A Proposal to Give the Magistrates’ Court of Victoria Jurisdiction to Resolve Residential Tenancy Matters Involving Family Violence "

"A Proposal to Give the Magistrates’ Court of Victoria Jurisdiction to Resolve Residential Tenancy Matters Involving Family Violence "

Evaluating the Role of Particulate Matter as a Surrogate Index for Mould Spores in Residential Tenancy: Implications of New Legislation in Australia

Abstract: This paper evaluates the practical implications of recent legislative changes in Australia for residential tenancy and minimum rental housing standards, with a focus on the known risks from mould exposure to health. Specifically, the study examines the use of particulate matter (PM) measurements as a surrogate index for mould spores during residential indoor air quality assessments. The findings indicate that PM10 is a useful surrogate index for mould spores, while PM2.5 is less reliable due to size differences between PM2.5 and mould spores. The paper also investigates the relationship between particulate matter, mould spore sizes, and ambient air quality by reviewing relevant literature and presenting case studies from various Australian and international sources. Overall, the study highlights the importance of early detection during onsite inspections to minimize health hazards related to mould and dampness and to improve indoor air quality in residential tenancy spaces.

Legal Issues Relating to the Relationship Between the Landlord and Tenant in Malaysia

It is crucial to safeguard the interests of tenants and landlords in their tenancy agreements to achieve the concept of justice and equality. Malaysia has not yet had a specific law to govern the relationship between tenants and landlords whereby the rights and obligations of both parties are stipulated inside their tenancy agreement. Suppose there is a breach in the contracts. In that case, the jurisdiction to settle such disputes will be referred to the relevant laws in Malaysia, such as the National Land Code (Revised 2020) (Act 828), Contracts Act 1950, Specific Relief Act 1950, and Distress Act 1951. Even so, such legislation remains vague in resolving specific issues about the entrance of parties into a tenancy agreement which will be further discussed in this study. Further discussed are the rights and obligations of both parties based on their contractual agreement and, subsequently, the proposed solutions. A comparative study is made with Australia and New Zealand on the legal issues relating to the relationship between the landlord and tenant. The findings from this study portray a need to adopt a single statute to govern the relationship between tenants and landlords in Malaysia, namely the Residential Tenancies Act.

Distinguishing German Residential and Commercial Tenancy Law: Are Tenant and Landlord in an Equal Position?

The German housing market, particularly in major cities, is very tight. This situation makes Tenancy Law the issue that has attracted the most attention in local and federal elections. This article presents and illustrates various methods of protecting the individual parties to a lease contract. Besides, it highlights the differences between Residential Tenancy Law and Commercial Tenancy Law and explains why legislation distinguishes between these two types of tenancies. This research establishes arguments and interpretations from relevant laws and regulations, including the German Civil Code and German General Equal Treatment Act, and judicial decisions that clarified the legal relations between tenants and landlords. This article concludes that Tenancy Law in Germany distinguishes in different ways between Residential Tenancy Law and Commercial Tenancy Law from legal, social, and economic perspectives. It also infers that the provisions stipulated in German Tenancy Law protect the tenant's right while remaining attractive for landlords to offer the house(s) for rent.

On the Enlightenment of Japan’s Legislation on the Residential Tenancies Management Act–Focusing on the Current Development of Japanese Residential Tenancies Market and the Legal Norms

On the Enlightenment of Japan’s Legislation on the Residential Tenancies Management Act–Focusing on the Current Development of Japanese Residential Tenancies Market and the Legal Norms

Regulation of residential tenancies and impact on investment

This research examined policies and programs relevant to the housing pathways of ex-prisoners with complex support needs in NSW, Victoria and Tasmania, including what criminal justice costs and benefits result from current housing assistance settings.

Social Housing, Homelessness and Human Rights

Social housing is reserved for the most vulnerable tenants, yet social housing tenants are subject to the same residential tenancy laws as private tenants and may even be held to a higher standard of behaviour. As a result, social housing tenants are at high risk of eviction. This article reports on the results of a mixed methods study on eviction proceedings involving social housing tenants. The study involved textual analysis of 98 published judgments and focus group research with 43 tenants’ advocates. It was found that the very factors that make someone eligible for social housing in Australia simultaneously put them at risk of eviction. This research suggests that the law provides limited protection against eviction to homelessness. Despite the importance of individuals’ interests in having a home, rights-based arguments are generally ineffective in this context.

Pandemic Evictions: An Analysis of the 2020 Eviction Decisions of Saskatchewan’s Office of Residential Tenancies

Pandemic Evictions: An Analysis of the 2020 Eviction Decisions of Saskatchewan’s Office of Residential Tenancies

Australian Residential Tenancies Law in the COVID-19 Pandemic: Considerations of Housing and Property Rights

In response to the COVID-19 pandemic, Australian states and territories implemented eviction moratoriums and measures to vary rent obligations – a remarkable response for jurisdictions that have, for decades, regulated residential landlord-tenant relations on a model of mild consumer protection, market rents and ready termination. This article examines the COVID-19 emergency measures and their implications for tenants’ housing rights, and landlords’ property rights. After reviewing the Australian rental housing system’s structure and legislative framework, the article examines in detail the COVID-19 emergency measures regarding evictions and rents in each state and territory. These vary in form and content, mostly on a pattern of additional protection from eviction for a core ‘hardship’ group, and variation of rents by individual negotiation. The article considers problems in the emergency measures, and points on which enduring reforms may be built, as well as critically appraising the argument that property rights protections limit the scope for reform.

프랑스법상 주택임차권의 양도

프랑스민법은 2016년 개정시에 계약양도에 관한 규정을 도입하였는데(제1216조 이하), 그 결과 주택임차권 양도의 요건이 변화하였다. 주택임차권의 양도에 관한 현행 프랑스법을 요약하여 설명하면 다음과 같다. 첫째, 주택임대차에 관한 일반법인 1989년 주택임대차법은 주택임차권의 양도를 원칙적으로 금지하고 있다. 그러나 임대인의 서면동의가 있으면 임차권을 양도할 수 있다. 둘째, 임차권양도는 프랑스민법에 규정된 계약양도규정의 적용을 받는다. 그에 따르면 임차권양도가 유효하기 위하여는 임대인의 동의가 필요하다. 그런데 주택임차권의 양도에 관하여는 1989년 주택임대차법이 이미 요구하는 바이다. 임차권의 양도는 서면으로 행해져야 하며 이를 위반할 경우 무효이다. 셋째, 임차권양도인을 면책시키기 위해서는 이에 대한 임대인의 명시적 합의가 필요하다. 임대인의 명시적 면책합의가 없다면 임차권양도인은 임대차계약의 이행에 대하여 임차권양수인과 연대하여 책임을 진다. 임차권의 면책적 양도에서 임차권양도인 또는 제3자에 의해 합의된 담보는 담보제공자의 합의가 있어야 존속하며, 임차권양도인의 연대채무자들은 양도인의 면책부분을 제외한 나머지 채무에 대하여만 책임을 진다. 다섯째, 임차권양수인은 임대인에게 채무에 내재된 항변사유로써 대항할 수 있으나, 임차권양도인의 인적 항변사유로써는 대항할 수 없다. 반면 임대인은 임차권양도인에게 대항할 수 있었던 모든 항변사유로써 임차권양수인에게 대항할 수 있다.<BR> 우리나라에서는 임차권양도에 있어서 임대인의 동의가 양도의 성립요건인가 아니면 대항요건인가에 관한 견해의 대립이 있다. 필자는 주택임차권의 양도와 관련하여서는 민법 제629조가 적용되는 사안과 특별법이 적용되는 사안을 구분하여 살펴야 한다고 생각한다. 민법 제629조가 임차권양도를 금지하는 것은 임대인을 보호하려는 것이기 때문에 강행규정이 아니다. 하지만 특별법에서 임차권양도를 금지하는 것은 임차인의 주거확보를 위한 것이므로 강행규정으로 보아야 한다. 즉 임대인의 동의를 받지 않은 임차권양도는 무효라고 보아야 한다. 나아가 임차권양도의 법적 성질에 관하여는 채권양도로 보는 견해와 계약인수로 보는 견해가 대립하고 있다. 후자의 견해는 이를 포괄승계로 보는 견해와 특정승계로 보는 견해로 다시 나뉜다. 포괄승계로 보는 견해에 의하면 임차권양도인의 보증금반환채권도 임차권양수인에게 당연히 이전된다. 반면 특정승계로 보는 입장에서는 보증금반환채권의 양도에는 별도의 합의가 필요하다. 필자는 바로 이 마지막 견해에 찬성하며 앞에서 살펴본 프랑스법은 그에 대한 비교법적 근거가 될 수 있다고 생각한다. 특히 임차보증금은 임차권양도인이 임대인에게 제공한 담보로서 담보제공자인 임차권양도인의 합의가 있는 때에는 임차권양수인을 위한 담보로서 존속할 수 있다.

The Economics of Leasing

Leasing may be the most important legal institution that has received virtually no systematic scholarly attention. Real property leasing is familiar in the context of residential tenancies. But it is also widely used in commercial contexts, including office buildings and shopping centers. Personal property leasing, which was rarely encountered before World War II, has more recently exploded on a world-wide basis, with everything from autos to farm equipment to airplanes being leased. This article seeks to develop a composite picture of the defining features of leases and why leasing is such a widespread and highly successful economic institution. The reasons fall under three general headings. (i) Leasing is an attractive method of financing the acquisition of assets, especially for persons who have limited capital or would like to conserve their capital and cash flows for other purposes. (ii) Leasing is a device for minimizing the risks that either lessees or lessors associate with owning assets; although leasing also creates risks, various lease modifications have been developed to manage these derivative risks. (iii) By dividing the rights to an asset between lessor and lessee, leasing permits the parties to specialize in different functions and to solve various impediments to contracting that would be difficult to overcome among separate owners. Understanding the economic advantages of leasing is an important first step in considering possible legal reforms of leasing.