In the absence of an explicit provision restricting T to share the apartment with specified persons, L could not object to the arrival of the new student. The argument that L disliked the proposed new tenant would be irrelevant.

Question 3: Sub-renting

Does, and if yes under what conditions, T possess the right to sub-rent a room in his apartment to S? Can T make the permission conditional on an increase of the rent? What are L’s rights if T sub-rents a room without permission (termination, damages)?

T does not need L's explicit permission to sub-rent a room or part of the apartment. According to the LCO, the tenant may sub-rent parts of the leased property without requesting his/her landlord’s consent unless otherwise agreed by the parties. Therefore, if the landlord wants to prevent sub-renting, there must be an explicit stipulation to this effect in the contract. However, sub-renting does not discharge the tenant from his/her obligations under the tenancy contract and she remains liable for any failure of performance. T will therefore be liable even where her failure to perform is a consequence of the sub-tenant’s own failure to perform.

The law does not contain provisions relating to sub-renting rented property in its entirety. The views in the literature diverge on this point. Some authors consider that construing the provision per argumentum a contrario, it could be concluded that the landlord's explicit consent is necessary if T wishes to sub-let the rented apartment in its entirety54. Others construe the provision by applying the rule per argumentum a fortiori and conclude that sub-renting the whole of a rented apartment does not require the explicit consent of the landlord55. Unfortunately, there is no guiding case law on this issue.

However, whilst taking into account the spirit of the provisions on tenancy contracts which tends to lean more favourably in the direction of the landlord, in my view the construction based on per argumentum a contrario interpretation is more convincing.

No contractual relationship arises between a landlord and a sub-tenant. For some time it has been disputed whether the sub-tenant is entitled to a claim against a landlord who obstructs him/her in enjoying the use of the premises. The predominant view is that the answer should be in the affirmative. It is accepted now that the sub-tenant has two options at his/her disposal. Firstly, she can file a tort claim against the landlord. Secondly, she can rely on her contractual relationship with the tenant and file an indirect claim - “action oblique” against the landlord56, acting in the place of the tenant. This indirect claim may be invoked when the original tenant’s failure to exercise her rights against the landlord threatens the exercise of the sub-tenant’s rights.57

A different situation is the legislative solution aimed at protecting the landlord’s interest vis-à-vis the sub-tenant. Despite the lack of a contractual relationship between

54Popov, P., “ Sublease Contract”, 5 Commercial law, 2002. at 487.

55Kozhuharov, A., op.cit, supra note 7, p. 343, note 369.

56This is a borrowing from the French law.

57See article 134; on “action oblique” See Kalaidgiev, op. cit, supra note 22, p.508-513.

the landlord and the sub-tenant, the law does grant the landlord a right of direct claim for due rent against the sub-tenant. The Landlord cannot claim a larger amount than the amount of the rent, which the sub-tenant owes to the tenant. However, the subtenant may not object that he/she has made advanced payment to the tenant prior to the filing of the landlord’s claim.

Question 4: Formal Requirements and Registration

a)Does the tenancy contract require a specific form (e.g. in writing) – if yes, what is the rationale of this requirement? What is the consequence if this form is not observed?

b)If an oral contract is valid, are there any additional requirements to be satisfied to render it enforceable before a court?

c)Does the contract need to be registered in a public register? What are the consequences in private law, especially in court actions, if the registration does not take place?

The contract of tenancy is a consensual contract. It is considered validly concluded by virtue of the mere agreement of the parties, irrespective of whether the consensus is recorded in any specific form. Thus, an oral agreement will be as equally binding as an agreement in writing. However, the law does ascribe to a contract in writing several important effects. First, the form in writing is important for litigation purposes. Article 133 of the Civil Procedural Code provides that the existence of a contract, whose value is in excess of 1000 leva58, cannot be proved by the testimony of a witness. As such, a written form of contract is essential for the purposes of establishing rights that derive from a tenancy contract whose value exceeds 1000 leva. Secondly, provided that the contract is executed in writing and the date of the conclusion of the contract has been verified by a public notary, the law confers on the tenant additional benefits. This being the case, the tenancy contract shall be binding upon any person receiving title to a rented property as a result of a transfer transaction following the date of the conclusion of the tenancy contract. The contract shall be binding upon the new owner for a period of one year, beginning from the date of the transfer of title. 59

However, the tenant’s rights will be even better protected if the contract is registered with the real estate register. Upon registration the contract shall be binding upon any person who obtains title to the property as a result of the transfer of title for the entire duration of the contract. Thus, registration of the contract is not mandatory and does not affect the validity of the contract, but it does serve to protect the tenant’s interests in case the landlord transfers the title to the property. Importantly, it should be noted that a tenancy contract concluded for a period less than a year, or contracts concluded for an indefinite period of time, cannot be registered.60

58Approximately 500 euro.

59Article 237 of the LCO.

60This follows from article 112 “e” of the Law on property and article 4 “e” of the Regulation on the Registrations, according to which tenancy contracts concluded for a period longer than 1 year are subject to registration. Thus, a contract which does not specify the duration cannot be registered, see Borissov, op. cit, supra note 47, at p. 108.