Application Of The Priority Tenancy Clause In The Context Of The Civil Code

For the first time,the Civil Code gives the lessee the legal right of first refusal,realizing the leap from "contractual right" to "legal right",thereby protecting the tenant’s interest in renewing the lease.However,the unclear nature of the right and the difficulty in defining the same conditions make the constituent elements of the right of priority of lease complex,the lack of clear procedures for the exercise of rights,and the lack of clear remedies,resulting in a significant "shrinkage" of the legislative value of the right of priority of lease,and the phenomenon of different judgments in the same case in judicial practice is serious.Therefore,based on relevant laws and regulations,this article explores the legal application of the right of first refusal based on the current practical dilemma,and synthesizes relevant jurisprudence.First of all,it should be clarified that the priority lease right is related to people’s livelihood,and its legislative value lies in the basic right to subsistence and operation of housing tenants,and the preferential protection of housing tenants is carried out.Based on the need to balance the preferential protection of the lessee with the lessor’s freedom of disposition,it is more reasonable to define the nature of the right of priority as "conditional formation right".Second,it should be clarified that the application of the right of priority should be in two steps,and the first step should be to examine the prerequisites for whether the lessee can enjoy the right of first refusal: whether the lessor has the will to rent,and whether the lessee has committed a material breach of contract,which is determined by the nature of its expectation right and the basis of trust of the continuation contract;The second step should examine the exercise conditions that determine whether the priority lease right can be exercised: whether the lessor concludes a lease contract with a third party,and whether the lessee satisfies the "equivalent conditions",which is determined by the nature of its conditional right to form.Finally,from the perspective of remedies,the exercise of the right of priority cannot invalidate the lease contract concluded between the lessor and a third party,but it will form a situation of "one room and two rents",in which case the lessee may require the lessor to perform or bear the liability for breach of contract in priority.