Presidium of the Supreme Arbitration Court Russian Federation considered the Review of the practice of resolving disputes related to rent, and in accordance with Article 16 of the Federal Constitutional Law "On Arbitration Courts in the Russian Federation" informs the arbitration courts about the recommendations developed.

Appendix: 67-page overview.

Review of rental dispute resolution practice

1. An agreement between the owner of a building and another person, on the basis of which the latter uses a separate structural element of this building for advertising purposes, is not a lease agreement.

The joint-stock company entered into an agreement with the owner of the building, on the basis of which the company obtained the right to use the roof of this building for advertising.
After the expiration of the established term of this agreement, the owner refused to conclude a contract for a new term by the joint-stock company, having concluded a similar agreement with another person.
The joint-stock company, believing that the agreement concluded between it and the owner is a lease agreement for the roof of the building, on the basis of Article 621 of the Civil Code of the Russian Federation * filed a claim with an arbitration court to transfer the rights and obligations under the second agreement to itself. In the statement of claim, the company indicated that it had installed its billboards on the roof for two years and fulfilled its obligation to make payments in good faith.
The court dismissed the claim, recognizing Article 621 of the Civil Code of the Russian Federation as not applicable.
At the same time, the court's decision noted that the legal relationship that arose between the parties and related to the use by the plaintiff for advertising purposes of the roof of the building owned by the defendant by right of ownership was not leased and, therefore, could not be regulated by the rules of Chapter 34 of the Civil Code of the Russian Federation.
In making the decision, the court proceeded from the fact that, in accordance with paragraph 1 of Article 607 of the Civil Code of the Russian Federation, in addition to those directly listed in this norm, only non-consumable things can be leased objects. In this case, the transfer of a thing to lease always entails a temporary alienation by the owner of the right to use this thing.
Meanwhile, the roof is a structural element of the building and is not an independent real estate object that could be transferred for use separately from the building. Therefore, the roof cannot be leased.
The court indicated that the analysis of the controversial agreement indicates that its subject was to provide the plaintiff with an opportunity on a reimbursable basis to place advertisements on the roof of the building owned by the defendant. Such an agreement does not contradict the Civil Code of the Russian Federation, the relations of the parties are governed by general provisions on obligations and agreements, as well as by the terms of the agreement itself.

2. To a property lease agreement, which provides for the subsequent transfer of ownership of this property to the lessee, only those rules on the sale and purchase agreement that govern the form of this agreement apply (paragraph 3 of Article 609 and Article 624 of the Civil Code of the Russian Federation).

The open joint-stock company (lessor) filed a lawsuit with the arbitration court against the limited liability company to recover the amount of rent arrears and to oblige the defendant to return the river motor ship leased to him.
By the decision of the arbitration court, the claim was satisfied, since the materials of the case proved a violation by the defendant (tenant) of the terms of the agreement on the timely transfer of the rent. When obliging to return the leased vessel, the court referred to the expiration of the lease term and the possibility of the lessor claiming his property (Article 622 of the Code).
In the appeal, the defendant asked to cancel the judicial act in terms of satisfying the claim for the vessel's claim. To substantiate his position, he referred to the provisions of the lease agreement providing for the transfer of ownership of the property to the lessee at the end of the lease term.
The appellate court considered the complaint well-grounded and subject to satisfaction, indicating the following.
The parties signed a lease agreement for a river motor ship for a period of four years with the right to buy out the leased property.
According to the terms of the agreement, the total cost of the lease was USD 520 thousand, the lease payments were payable by the lessee annually for four years within the terms established by the agreement in ruble equivalent at the exchange rate of the Central Bank of the Russian Federation on the date of payment. After the last lease payment has been made, the vessel becomes the property of the lessee.
Failure by the lessee to pay the next annual payment in the amount of 94.8 thousand US dollars (more than 2.5 million rubles) served as the basis for the lessor's claim.
By virtue of Article 609 of the Civil Code of the Russian Federation, the property lease agreement, which provides for the subsequent transfer of ownership of this property to the lessee (Article 624 of the Code), is concluded in the form provided for the purchase and sale agreement.
On this basis, clause 2 of Article 489 of the Civil Code of the Russian Federation is applicable to the relations of the parties, according to which in the case when the buyer does not make the next payment for the goods sold in installments and transferred to him within the time period established by the contract, the seller has the right, unless otherwise provided by the contract, to refuse to fulfill contract and demand the return of the sold goods, unless the amount of payments received from the buyer exceeds half the price of the goods.
Since for the previous periods the lessee had paid more than 355 thousand US dollars, which is more than half of the value of the vessel (520 thousand US dollars), the court of first instance had no grounds to oblige the defendant to return this property to the plaintiff.
In connection with the above, the court of appeal overturned the decision of the court of first instance in this part, refusing to return the river ship.
Based on the results of the consideration of the cassation appeal, the decision of the appellate instance was canceled and the decision of the first instance court was upheld.
At the same time, the cassation court drew attention to the need to distinguish between two different institutions - the redemption of leased property (Article 624 of the Civil Code of the Russian Federation) and the sale of goods on credit with the condition of payment by installments (Article 489 of the Code).
Clause 3 of Article 609 of the Civil Code of the Russian Federation indicates only the need, when concluding a lease agreement, which provides for the subsequent transfer of ownership of the leased property to the lessee, to be guided by the rules on the form of the sale and purchase agreement for the corresponding property.
Consequently, the rules governing the purchase and sale of goods on credit with the condition of payment by installments cannot be applied to the legal relations of the parties related to the purchase of leased property.
In the situation under consideration, the expiration of the lease term did not mean that the vessel was transferred to the lessee's ownership, since the lease payments were not paid in full.
Given this circumstance, the cassation court noted that by the time the plaintiff made the relevant claim, the defendant did not have any rights to the disputed property: the property right was not acquired, and the lease right terminated due to the expiration of its term.
Thus, the court of first instance rightfully satisfied the lessor's claim in terms of claiming the property on the basis of Article 622 of the Civil Code of the Russian Federation.

3. The term of the lease agreement for the building (structure), determined from the 1st day of any month of the current year to the 30th (31st) day of the previous month next year, for the purpose of applying paragraph 2 of Article 651 of the Code, it is recognized as equal to year.

The lessor applied to the arbitration court with a claim against the lessee for the collection of contractual forfeit for the delay in making the lease payments.
The defendant, objecting to the claim, referred to the fact that the contractual penalty is not applicable, since the building lease agreement signed with the plaintiff by virtue of Article 651 of the Civil Code of the Russian Federation is not concluded due to the absence of its state registration.
The arbitration court, having considered the arguments of the parties, dismissed the claim on the following grounds.
According to paragraph 2 of Article 651 of the Code, a lease agreement for a building or structure, concluded for a period of at least a year, is subject to state registration and is considered concluded from the moment of such registration.
The plaintiff and the defendant entered into a lease agreement for the building, in which the term of its validity was determined from June 1, 2000 to May 31, 2001.
The term of the agreement is exactly one year, therefore, this agreement, by virtue of paragraph 2 of Article 651 of the Civil Code of the Russian Federation, was subject to state registration and, due to its absence, cannot be considered concluded.
In view of the above, the condition of the contract on the forfeit could not be applied by the lessor.

4. If the lease agreement indicates that it is valid until the start of the reconstruction of the rented real estate object, such an agreement is considered concluded for an indefinite period and its termination is carried out according to the rules of paragraph 2 of paragraph 2 of Article 610 of the Civil Code of the Russian Federation.

The Property Management Committee (lessor) filed a lawsuit against the limited liability company for eviction from non-residential premises on the basis of Article 622 of the Civil Code of the Russian Federation due to the expiration of the lease term.
The claim was satisfied by the decision of the court of first instance.
Having examined the materials of the case, the court noted that the parties had entered into a lease agreement for non-residential premises valid until the start of the reconstruction of the building in which the rented premises are located. When filing a claim for the eviction of the tenant, the landlord referred to the expiration of the lease, since the planned reconstruction of the corresponding building had begun, that is, an event occurred associated with the expiration of the lease.
After evaluating the evidence presented, the court concluded that the fact of the beginning of the reconstruction was fully confirmed, in particular: the reconstruction of neighboring houses was completed; on the territory adjacent to the disputed building, work was carried out to switch the existing communications; the building itself is disconnected from permanent power supply and telephone networks; all tenants were evicted except for the defendant.
In the cassation appeal, the tenant asked to cancel the decision of the court of first instance, since, in his opinion, the court had unlawfully concluded that an event had occurred associated with the expiration of the lease agreement. Thus, the applicant drew attention to the absence of an order for the execution of preparatory, excavation and construction works for the investor-client.
The appeal court dismissed the lessee's appeal, noting the following.
Investigation of the presence or absence of the fact of the beginning of the reconstruction of the building would be meaningful only if, by virtue of an agreement concluded for a certain period, this event would be grounds for early termination of the agreement at the request of the lessor (part two of Article 619 of the Civil Code of the Russian Federation) or for the latter to refuse to perform the contract (paragraph 3 of Article 450 of the Code).
However, in the situation under consideration, the term of the lease agreement has not been determined by the parties. The condition on the validity of the lease agreement before the start of the reconstruction of the building in which the rented premises is located cannot be qualified as a condition on the term.
By virtue of Article 190 of the Civil Code of the Russian Federation, the term can be determined by indicating only such an event that must inevitably occur, that is, does not depend on the will and actions of the parties.
The controversial agreement was concluded for an indefinite period, therefore, on the basis of paragraph 2 of Article 610 of the Code, the lessor could at any time withdraw from the agreement, warning the tenant, three months in advance.
Since the lessor sent a warning to the tenant about the termination of the contract, the requirements of paragraph two of paragraph 2 of Article 610 of the Civil Code of the Russian Federation can be considered met. In this case, it does not matter what circumstances predetermined the lessor's intention to withdraw from the contract.
Taking into account that by the time the lessor applied to the court, the three months stipulated in paragraph 2 of Article 610 of the Civil Code of the Russian Federation had expired, the court of first instance rightfully satisfied the requirement to evict the tenant from the disputed premises.

5. A lease agreement concluded (renewed) for an indefinite period may be terminated on the grounds provided for by Article 619 of the Civil Code of the Russian Federation.

The Property Management Committee (lessor) filed a claim against the limited liability company (lessee) to terminate the lease agreement for non-residential premises and to evict the defendant from the specified premises.
By the ruling of the court of first instance, the requirements for termination of the lease agreement and eviction of the defendant were left without consideration due to the plaintiff's failure to comply with the procedure for terminating the lease agreement concluded for an indefinite period (paragraph 2 of Article 610 of the Civil Code of the Russian Federation).
The plaintiff, disagreeing with the said judicial act, in the appeal asked him to cancel and consider the dispute on the merits, referring to his compliance with the requirements of part three of Article 619 and paragraph 2 of Article 452 of the Code concerning the procedure for terminating the lease agreement.
The appellate court, having examined the circumstances of the dispute, found the following.
The lease agreement for non-residential premises was concluded for a period of one year. Since after the expiration of the contract, the tenant continued to use the non-residential premises in the absence of objections from the lessor, it was renewed for an indefinite period.
The conclusion of the court of first instance that a lease agreement concluded (renewed) for an indefinite period can be terminated only on the grounds provided for in paragraph 2 of Article 610 of the Civil Code of the Russian Federation, is untenable, since the very fact of concluding a lease agreement for an indefinite period does not deprive the lessor of the right to terminate such an agreement in the event of a material violation of its terms by the lessee.
As can be seen from the materials of the case, the lessor, on the basis of paragraphs 1 and 3 of the first part of Article 619 of the Civil Code of the Russian Federation, went to court with a claim to terminate the contract and evict the tenant from the premises he occupied in connection with a significant violation of the terms of the contract by the latter, including a long non-payment of the rent ... In the statement of claim, the landlord asked the court to confirm the facts of violations committed by the tenant. Before going to court, the plaintiff complied with the requirements of part three of Article 619 and paragraph 2 of Article 452 of the Code, which regulate mandatory pre-trial procedures for terminating an agreement.
Considering the above, the court of appeal noted that the lessor, when determining the moment of going to court, rightfully followed the thirty-day period established by paragraph 2 of Article 452 of the Civil Code of the Russian Federation, and not the three-month period provided for in paragraph 2 of Article 610 of the Code.
Since the facts of violations of the terms of the lease by the tenant were confirmed during the court proceedings in the appellate instance, the ruling of the court of first instance was canceled and the claim was satisfied.

6. The agreement of the parties that the terms of the lease agreement apply to their actual relations prior to its conclusion does not mean that the parties' direct obligation to fulfill the terms of the lease agreement arose before the conclusion of the agreement.

The landlord applied to the arbitration court with a claim against the tenant to collect rent arrears, the cost of cleaning the area adjacent to the rented building, as well as a penalty for late payment
Objecting to the claimed claim, the defendant referred to the fact that the plaintiff's claims relate to the period before the conclusion of the lease agreement, and therefore cannot be satisfied.
When making the decision, the court was guided by paragraph 3 of Article 425 of the Civil Code of the Russian Federation, according to which the parties have the right to establish that the terms of the contract they have concluded apply to their relations that arose before the conclusion of the contract.
The plaintiff and the defendant entered into a lease agreement for the building, according to which the tenant undertook to pay the monthly rent, as well as reimburse the landlord for the costs of cleaning the area adjacent to the leased building. A penalty is provided for late payment.
This building was transferred to the defendant under the acceptance certificate prior to the conclusion of the lease agreement and was actually used by him during this time.
In the contract, the parties established that its terms apply to relations that have arisen from the date they signed the building acceptance certificate.
Taking into account the above, the court of first instance recognized the claim to be satisfied in full.
The appellate court canceled the decision regarding the collection of the contractual penalty, and left it unchanged regarding the collection of rent and cleaning costs for the period of actual use of the building by the defendant. The court proceeded from the following.
In accordance with paragraph 1 of Article 425 of the Civil Code of the Russian Federation, the agreement enters into force and becomes binding on the parties from the moment of its conclusion.
The parties' reaching an agreement on the application of the terms of the tenant's obligation to pay rent and reimburse the landlord for cleaning the area adjacent to the leased building to their relationship, which had developed before the conclusion of the contract, indicates only the tenant's consent to pay for the actual use of the building and the costs incurred by the landlord in this period on the terms stipulated by the lease agreement, and does not mean that the respondent had an immediate obligation to fulfill them before the conclusion of the agreement itself.
In this regard, the court of first instance had no grounds to admit that the defendant had violated contractual obligations during the period when only actual relations took place between the parties, and to satisfy the claim for the recovery of contractual forfeit for the period preceding the conclusion of the contract.

7. A claim to evict the tenant in connection with the termination of the lease in accordance with paragraph 2 of Article 610 of the Civil Code of the Russian Federation cannot be refused on the grounds that the lessor did not send the tenant a second warning about the termination of the contract after the initial claim of the lessor was left without consideration in connection with the latter's premature appeal to the court.

The Property Management Committee (lessor) filed a claim against the joint-stock company (lessee) to vacate the non-residential premises occupied by the latter.
The claim was based on the provisions of clause 2 of Article 610 of the Civil Code of the Russian Federation, according to which each of the parties to a lease agreement concluded for an indefinite period has the right to withdraw from the contract at any time in compliance with the procedure established by this clause.
By the decision of the court of first instance, upheld by the decision of the court of appeal, the claim was satisfied.
The defendant (tenant) in the cassation appeal raised the issue of canceling judicial acts, citing the plaintiff's failure to comply with the requirements of paragraph 2 of Article 610 of the Civil Code of the Russian Federation on the procedure for terminating lease agreements concluded for an indefinite period.
In accordance with paragraph 2 of Article 610 of the Code, if the lease of immovable property is concluded for an indefinite period, each of the parties has the right to withdraw from the contract at any time, notifying the other party about this three months in advance.
As follows from the materials of the case, the municipal property management committee sent a warning to the joint-stock company about the termination of the lease agreement, which had been renewed earlier for an indefinite period. The tenant refused to voluntarily vacate the premises.
Initially, the lessor applied to the court with a claim to evict the tenant before the expiration of the three-month period provided for in paragraph 2 of Article 610 of the Code, in connection with which the said claim was left without consideration by the court.
The present claim of the lessor, brought against the lessee after the expiration of the three-month period, was upheld.
According to the defendant, set out in the cassation appeal, in such a situation the lessor was obliged to send the tenant a new warning about the termination of the lease.
The court of cassation did not agree with the arguments of the tenant, stating that in this case, leaving the claim without consideration does not invalidate the warning sent by the landlord in accordance with paragraph 2 of Article 610 of the Civil Code of the Russian Federation.
The judicial acts of the first instance and the appellate instance were left unchanged.

8. If the lessor handed over to the lessee the property without documents, the absence of which precludes the operation of the leased object, the rent shall not be subject to collection.

The landlord has applied to the arbitration court with a claim against the tenant for the collection of rent arrears and interest for the use of others in cash.
Before making a decision on the case, the defendant filed a counterclaim to terminate the lease on the basis of subparagraph 1 of article 620 of the Civil Code of the Russian Federation, according to which, at the request of the lessee, the lease can be terminated early by the court in the event that the lessor does not provide the property for use by the lessee or creates obstacles to the use of the property in accordance with the terms of the contract or the purpose of the property.
Article 611 of the Code stipulates that the lessor is obliged to provide the lessee with the property in a condition that complies with the terms of the lease agreement and the purpose of the property. In this case, the property is rented out together with all its accessories and related documents (technical passport, quality certificate, etc.), unless otherwise provided by the contract.
The arbitration court, when considering the case, established that a helicopter lease agreement had been concluded between the parties.
The helicopter was handed over to the lessee.
However, in fact, the lessee did not use and could not use the helicopter, since it was transferred by the lessor without a registration certificate and airworthiness certificates (certificates of airworthiness of aircraft for flights), the presence of which is required by Articles 33, 36 of the Air Code of the Russian Federation. In the absence of these documents, aircraft are not allowed to operate.
The lessee has repeatedly asked the lessor to hand over the documents necessary for the operation of the helicopter.
Thus, the lessor did not properly fulfill the obligation, since he transferred the property to the lessee in violation of the requirements established by Article 611 of the Civil Code of the Russian Federation.
In this regard, the court recognized the requirement to terminate the lease on the basis of paragraph 1 of Article 620 of the Code as legitimate.
Since the lessee, due to violations of contractual obligations committed by the lessor, could not use the leased property (helicopter) in accordance with its purpose, the claim for the collection of the rent from the lessee was denied.

9. The lessee to whom the leased property has not been transferred may not reclaim it from a third party in whose use it is actually located.

The tenant applied to the arbitration court with a claim to reclaim the non-residential premises leased to him from the person occupying the premises.
In support of the claim, the plaintiff referred to the fact that he, as a tenant, is the title owner of the said premises and, by virtue of Articles 301, 305 of the Civil Code of the Russian Federation, has the right to claim it from someone else's illegal possession of third parties.
The first instance court agreed with the arguments of the plaintiff and granted the claim.
The appellate court overturned the decision and dismissed the claim on the following grounds.
The lease agreement of the disputed non-residential premises was concluded with the plaintiff by the property management committee.
In accordance with Article 606 of the Code, under a lease agreement, the lessor undertakes to provide the lessee with the property for a fee for temporary possession and use or for temporary use.
Thus, the transfer of the property to the lessee is the responsibility of the lessor.
Having established that the transfer by the lessor of the premises to the tenant did not take place and the latter did not take possession of it, the court concluded that the tenant did not become the legal owner of the disputed property and, therefore, did not have the right to use proprietary methods of protection from the actions of third parties. His rights could be protected in accordance with paragraph 3 of Article 611 of the Civil Code of the Russian Federation, according to which, if the lessor did not provide the rented property to the lessee within the period specified in the lease agreement, and in the case when such a period is not specified in the agreement, within a reasonable time, the lessee has the right to claim this property from him in accordance with Article 398 of the Code and demand compensation for losses caused by the delay in performance, or demand the termination of the contract and compensation for losses caused by its non-performance.
In such circumstances, the claim of the plaintiff, presented directly to the third party occupying the disputed non-residential premises, was not subject to satisfaction.

10. A landlord who has not fulfilled the obligation to transfer leased non-residential premises at the time of the conclusion of the contract or another period established by the contract has the right to demand from the tenant the payment of the rent only after the actual transfer of non-residential premises to the latter.

The lessor applied to the arbitration court with a claim against the lessee for the collection of rent under a lease agreement for non-residential premises and penalties for late payment.
Opposing the claim, the defendant referred to the fact that only part of the premises that were leased under the contract had been transferred to him. Since the lessor did not fulfill the obligation to transfer the property, there was no obligation to pay the rent.
The arbitral tribunal recognized the claim as subject to satisfaction in part, proceeding from the following.
By virtue of Articles 606, 611, 614 of the Civil Code of the Russian Federation, the obligation of the lessor in relation to the lessee is to provide the latter with the property for use, and the obligation of the lessee to make payments for the use of this property.
Thus, under the lease agreement, there is a reciprocal fulfillment of obligations.
In accordance with paragraph 2 of Article 328 of the Code, if the obligated party fails to fulfill the obligation stipulated by the contract, or if there are circumstances that clearly indicate that such performance will not be performed within the specified time, the party on which the counter performance lies has the right to suspend the performance of its obligation, or refuse to fulfill this obligation. If the performance of the obligation stipulated by the contract has not been made in full, the party on which the counter performance lies has the right to suspend the performance of its obligation or refuse to perform in the part corresponding to the non-performance.
The parties entered into a lease agreement for non-residential premises.
By the time the property was handed over to the lessee, part of the premises leased to him had not been released from the property by the lessor, and therefore the lessee accepted only vacant spaces under the act.
The plaintiff presented for collection a rent debt, calculated from the moment of the conclusion of the contract in accordance with the amount of rent established in the contract.
However, according to the calculation, which is an appendix to the contract, the amount of the rent specified in the contract is determined based on the rent rate per 1 square meter of the rented area.
Taking into account the foregoing, as well as the fact that the transfer of all premises did not take place at the time of the conclusion of the contract by the parties, the court concluded that the lessor has the right to demand from the tenant to pay rent from the moment of the transfer only for the premises actually transferred to the latter for use, in connection with than satisfied the claim in part.

11. When applying clause 3 of Article 614 of the Civil Code of the Russian Federation, the courts must proceed from the fact that during the year the condition of the contract should remain unchanged, providing for a fixed amount of rent or the procedure (mechanism) for calculating it.

The lessee appealed to the arbitration court with a claim against the lessor to invalidate the terms of the lease agreement, which provides for a quarterly increase by the lessor of the amount of rent by indexing it taking into account inflation, since this condition contradicts the peremptory norm of paragraph 3 of Article 614 of the Civil Code of the Russian Federation, which establishes the possibility of changing the amount of rent no more than once a year.
The court of first instance satisfied the claim, stating that paragraph 3 of Article 614 of the Civil Code of the Russian Federation contains a peremptory norm regarding the frequency of changes in the amount of rent, in connection with which the parties cannot change or establish in the contract a condition different from that provided for by this rule. Therefore, the condition of the agreement providing for the possibility of quarterly changes in the amount of the rent is null and void by virtue of Article 168 of the Code as inconsistent with the law (paragraph 3 of Article 614 of the Civil Code of the Russian Federation).
The cassation court overturned the decision and dismissed the claim on the following grounds.
The controversial condition of the agreement, the rent is not set in a fixed amount, but is determinable, that is, subject to calculation for each due date.
Thus, the parties agreed on a condition on the amount of rent, setting the method for calculating it.
The actual change in the amount of rent as a result of the adjustment for the indexation percentage is not a change in accordance with paragraph 3 of Article 614 of the Code of the terms of the agreement on the amount of rent, but represents the fulfillment of this condition.
In such circumstances, the claim is not subject to satisfaction.
In another case, the lessee applied to the arbitration court with a claim to invalidate the supplementary agreement to the lease agreement, in which the rent rate was determined by the parties in an amount equivalent to a certain amount in foreign currency.
In support of the stated claim, the plaintiff referred to the fact that such a determination of the amount of rent contradicts Article 140 of the Civil Code of the Russian Federation, according to which the legal tender is the ruble, and paragraph 3 of Article 614 of the Code, since, in the plaintiff's opinion, it entails a more frequent change in the amount of rent ...
The arbitration court dismissed the claim.
When making the decision, the court was guided by paragraph 2 of Article 317 of the Civil Code of the Russian Federation, according to which a monetary obligation may provide that it is payable in rubles in an amount equivalent to a certain amount in foreign currency or in conventional monetary units.
Since such a determination of the amount of the monetary obligation does not mean that the direct fulfillment of the monetary obligation is made in foreign currency, the plaintiff's argument about the violation of Article 140 of the Code is unfounded.
By virtue of paragraph 3 of Article 614 of the Civil Code of the Russian Federation, unless otherwise provided by the contract, the amount of rent can be changed by agreement of the parties within the time frames provided for by the contract, but not more often than once a year.
In this case, setting the rent rate in an amount equivalent to a certain amount in foreign currency means establishing a mechanism for calculating it.
This determination of the amount of rent is intended to eliminate the adverse effects of inflation. A change in the exchange rate of a foreign currency does not mean a change in the amount of rent in accordance with paragraph 3 of Article 614 of the Civil Code of the Russian Federation.

12. The imposition of utility bills on the tenant cannot be regarded as a form of rent.

The joint-stock company (lessor) applied to the arbitration court with a claim against the limited liability company (lessee) to recognize the building lease as not concluded and to evict the defendant from the occupied building.
By the decision of the court of first instance, upheld by the decision of the appellate instance, the claim was satisfied.
In the cassation appeal, the defendant referred to the existence of a lease agreement for the disputed building and asked to recognize this agreement as concluded.
Having examined the contract and the circumstances of the dispute, the court of cassation established that disagreements arose over the wording of the terms of the contract on the amount of rent.
By virtue of paragraph 1 of Article 654 of the Civil Code of the Russian Federation, a lease agreement for a building or structure must provide for the amount of rent. In the absence of a condition on the amount of rent agreed by the parties in writing, the lease agreement for a building or structure shall be deemed not concluded.
The defendant believed that this requirement of the law was complied with by the parties, since, in accordance with clause 2.4 of the agreement, the tenant is obliged to pay utilities and other targeted services as rent in a timely manner.
However, such a wording cannot be considered as setting the form and amount of the rent, since the landlord does not actually receive a counter-grant for the leased building. The payment by the tenant of the utilities does not in itself mean that the lease contract is paid.
According to paragraph 1 of Article 654 of the Civil Code of the Russian Federation, the rules for determining the price provided for in paragraph 3 of Article 424 of the Code are not applied to the lease of a building or structure.
Taking into account this provision of the law, the court of cassation indicated that the controversial agreement could not be considered concluded and, therefore, the decision of the court of first instance was justified.

13. Early release of the leased premises (until the termination of the lease agreement in accordance with the established procedure) is not the basis for the termination of the tenant's obligation to pay rent.

The joint-stock company (lessor) applied to the arbitration court with a claim against the limited liability company (lessee) to collect rent.
By the decision of the court of first instance, the claim was rejected with reference to the fact that the rent claimed by the plaintiff was charged for the period after the actual release of the leased premises by the defendant.
In an appeal against the court's decision, the plaintiff asked to satisfy his claim to collect rent, since it was charged until the termination of the lease agreement in the prescribed manner.
During the consideration of the appeal, it was established that at one time the controversial lease agreement was renewed for an indefinite period in accordance with paragraph 2 of Article 621 of the Civil Code of the Russian Federation.
Such an agreement can be terminated at any time on the initiative of each of the parties with the obligatory warning of the other party three months in advance (paragraph 2 of Article 610 of the Code).
Taking into account the above circumstances, the appellate court noted that within three months from the date of such a warning, the contract remains in force for both parties. Therefore, the tenant's refusal to pay rent for the specified period is unjustified even if the premises are vacated by him ahead of schedule, that is, before the expiration of three months.
The controversial lease agreement and mutual obligations of the parties could be terminated otherwise than it follows from the rules of paragraph 2 of Article 610 of the Civil Code of the Russian Federation, if the parties came to an agreement on this. However, there is no such agreement between the parties and there is no evidence of the lessee's appeal to the lessor with a corresponding proposal in the case file.
There is also no evidence of the transfer of the premises by the lessee to the lessor until the termination of the contract, determined according to the rules of paragraph 2 of Article 610 of the Civil Code of the Russian Federation. The act of acceptance and transfer of the disputed premises was drawn up by the lessor with the participation of a representative of an uninterested person in connection with the tenant's refusal to sign the act, about which there is a corresponding mark in the act.
Taking into account the above, the court of appeal concluded that the lessor's claim to collect rent before the termination of the contract was lawful, and satisfied the claim.

14. The lessor has the right to retain the equipment belonging to the lessee, which remained in the rented premises after the termination of the lease agreement, in order to secure the lessee's obligation to pay the rent for this premises.

The limited liability company filed a claim with the arbitration court against the joint-stock company for the return of property from someone else's illegal possession.
As follows from the materials of the case, a lease agreement was concluded between the parties, in pursuance of which the defendant (landlord) handed over to the plaintiff a non-residential premises (ventilation and pneumatic transport workshop) for a period of five years. In this room the tenant has placed equipment that belongs to him on the right of ownership.
At the end of the lease term, the plaintiff did not release the premises from his equipment, thereby violating the requirement of Article 622 of the Civil Code of the Russian Federation, according to which, upon termination of the lease agreement, the lessee is obliged to return the property to the lessor in the condition in which he received it.
Subsequently, the plaintiff attempted to remove his property, but the defendant obstructed and held the equipment.
In a letter sent to the plaintiff, the defendant indicated that he was holding the property belonging to the plaintiff on the basis of paragraph 1 of Article 359 of the Civil Code of the Russian Federation in connection with the latter's failure to fulfill the obligation to pay the rent in full and, after paying off the debt, the plaintiff would return his property.
By a decision of the court of first instance, the claim was denied with reference to paragraph 1 of Article 359 of the Code, according to which any party to the contract has the right to retain a thing if it has the right to demand payment or other actions related to this thing.
In the appeal, the plaintiff asked to cancel the decision and satisfy the claim, since he does not have any obligations to the defendant related to the disputed equipment. In addition, this equipment was not transferred to the lessor, but was used by the tenant himself during the lease period.
The appellate court upheld the decision on the following grounds.
The plaintiff's arguments about the unlawfulness of the retention of his equipment due to his lack of any obligations to the defendant in relation to this equipment are untenable, since by virtue of paragraph 2 of clause 1 of Article 359 of the Civil Code of the Russian Federation, in relations between entrepreneurs, the retention of a thing may also provide for obligations not related to payment for this thing or reimbursement of costs for it.
However, the right to retain the debtor's thing arises for the creditor only if the disputed thing is in his possession on a legal basis. The possibility of retention cannot be a consequence of the seizure of the debtor's property against his will.
In this case, the disputed equipment turned out to be in the possession of the lessor at the will of the lessee in the absence of any illegal acts on the part of the lessor. The basis for the receipt of equipment in the possession of the owner of the premises is the tenant leaving this equipment in this premises after the expiration of the lease term, that is, after the loss of the right to the corresponding premises. Since such possession of equipment cannot be recognized as illegal, it allows its retention under the rules of paragraph 1 of Article 359 of the Civil Code of the Russian Federation.
Taking into account the stated requirements of the plaintiff (owner of the equipment) for the return of property from someone else's illegal possession are not subject to satisfaction.

15. If the lessor has consented to the sublease and at the same time did not stipulate its deadline, the lessee has the right to renew the sublease agreement within the lease term without obtaining additional permission from the lessor.

The joint-stock company (sub-lessee) filed a claim with the State Property Management Committee (lessor) for the obligation to conclude a lease agreement for non-residential premises.
In support of the stated claim, the plaintiff referred to the fact that he occupied the said premises on the basis of a sublease agreement, which ceased to be effective by virtue of paragraph 1 of Article 618 of the Civil Code of the Russian Federation in connection with the early termination of the lease agreement. As provided by this provision, in this case, the subleaseholder has the right to conclude a lease agreement with him for the property that was in his use in accordance with the sublease agreement, within the remaining sublease period, on terms consistent with the terms of the terminated lease agreement.
A tenant was involved in the case as a third party.
By the decision of the court of first instance, upheld by the decision of the appellate instance, the claim was rejected.
In this case, the courts proceeded from the fact that the term of the sublease agreement concluded between the plaintiff (sublease) and a third party (lessee) with the consent of the defendant (lessor) had expired during the period of the lease agreement. The third party entered into a second sublease agreement with the plaintiff without seeking the lessor's consent, and this agreement was concluded for the entire remaining lease term.
In the cassation appeal, the plaintiff, considering the second sublease agreement not contradicting the law, asked to cancel the judicial acts of the first and appeal instances and to satisfy the claim.
The cassation court, having studied the case materials and agreeing with the position of the plaintiff, canceled the contested judicial acts and satisfied the claim on the following grounds.
As can be seen from the materials of the case, the defendant (landlord) and a third party (tenant) entered into a lease agreement for non-residential premises for a period of five years. Subsequently, with the consent of the lessor, the lessee subleased one of the premises to the plaintiff.
The case contains a letter from the lessor, from which it appears that he, while allowing the lessee to conclude a sublease agreement with the plaintiff, did not make any reservations regarding the term of the sublease.
Initially, the sublease agreement was concluded for a period of one year. After this period, the parties entered into a second agreement for two years, that is, for the entire remaining lease term.
By agreement of the parties, the lease was terminated ahead of schedule - one and a half years before the expiration of its term. The tenant vacated the occupied premises.
Taking into account the above circumstances, the court of cassation indicated that the lessor's consent to sublease extends from the moment the consent was given until the expiration of the lease term stipulated by the contract. Therefore, the second sublease agreement is valid and the subtenant, in connection with the early termination of the lease agreement, the subtenant had the right to present the lessor with a corresponding claim on the basis of paragraph 1 of Article 618 of the Civil Code of the Russian Federation.
Since, when determining the term of the second sublease agreement, the parties did not go beyond the lease term established by the lease agreement, the claim of the plaintiff (sublease) to compel the defendant (lessor) to conclude a lease with him for the entire remaining sublease period is legitimate.

16. The transfer by the tenant of the lease right to another person can only be carried out in the ways provided for in paragraph 2 of Article 615 of the Civil Code of the Russian Federation, that is, by way of re-leasing, making as a contribution to the authorized capital of a business company or partnership, making as a share contribution to a production cooperative.

The joint-stock company, on the basis of clause 3 of Article 20 of the Federal Law "On State Registration of Rights to Real Estate and Transactions with It", filed a claim with the Arbitration Court against the Committee for Registration of Rights to Real Estate and Transactions with it for invalidating the decision to refuse to register the transaction assignment of the right to lease concluded by the plaintiff (assignee) with the previous tenant in accordance with Article 382 of the Civil Code of the Russian Federation.
At the same time, the plaintiff drew attention to the fact that before the assignment of rights by the former tenant (assignor), the rent was paid for the entire lease period, and the costs of maintaining and repairing the leased property were imposed by the lease agreement on the lessor (paragraph 2 of Article 616 of the Civil Code of the Russian Federation). Consequently, according to the plaintiff, the “pure” lease right, not encumbered by any obligations, was transferred to him by way of assignment.
The defendant in the response to the claim asked the court to refuse the plaintiff to satisfy his claim, believing that in the case under consideration, when transferring the lease rights, the requirements of paragraph 2 of Article 615 of the Civil Code of the Russian Federation were violated, and therefore the refusal to register corresponds to the provisions of paragraph 1 of Article 20 of the said Law.
By the decision of the arbitration court, the claim was rejected on the following grounds.
The right to lease as the right to use the property that is the object of the lease is always accompanied by certain obligations due to the very fact of use. These obligations follow from the law (Articles 615, 616, 622 of the Civil Code of the Russian Federation) or the contract and relate to the procedure and conditions for using the property, its maintenance, as well as return after the termination of the lease.
In particular, the lessee is obliged to use the leased property in accordance with the terms of the lease agreement, and if such terms are not specified in the agreement, then in accordance with the purpose of the property. Otherwise, the lessor has the right to demand termination of the contract and compensation for damages (paragraphs 1 and 3 of Article 615 of the Civil Code of the Russian Federation).
In addition, the lessee is obliged to maintain the property in good condition (paragraph 2 of Article 616 of the Code). This obligation is also retained in the case when, according to the contract, the implementation of maintenance and the cost of maintaining the property is entrusted to the lessor (as in the situation under consideration).
Taking into account the foregoing, the court noted that paragraph 2 of Article 615 of the Civil Code of the Russian Federation establishes special rules for the transfer of the lease right by the tenant to another person, defining as the forms of such transfer we re-lease, a contribution to the authorized capital of a business company or partnership, a share contribution to a production cooperative.
Since the lease right was not transferred to the plaintiff on any of the above grounds, the defendant's refusal to register this transaction corresponds to paragraph four of clause 1 of article 20 of the Federal Law "On state registration of rights to real estate and transactions with it."

17. In case of re-lease, the sublease agreement remains in force.

A limited liability company (lessee) applied to an arbitration court with a claim against a non-governmental institution (sub-lessee) for eviction from the premises.
A cooperative is involved in the case as a third party who does not declare independent claims.
By the decision of the arbitration court, upheld by the decision of the appellate instance, the claim was rejected.
As follows from the materials of the case, in 1995 the property management committee (the lessor) entered into an agreement with the joint-stock company (the former tenant) for the lease of non-residential premises for a period of 25 years.
The joint-stock company, with the consent of the lessor, in 1998 subleased one of the leased premises for a period of five years to an institution (the defendant in this case).
In 1999, the property management committee, joint-stock company and limited liability company (plaintiff) signed a contract, according to which the joint-stock company transferred its rights and obligations under a lease agreement in transfer to a limited liability company, and the latter undertook to carry out overhaul and renovation of the entire building at their own expense.
The new tenant (plaintiff) believed that from the moment the mentioned contract was concluded, the sublease agreement with a non-governmental institution had been terminated, since the rights and obligations of the tenant were transferred by the former tenant (subleaseholder) by way of re-lease.
According to the plaintiff, the provisions of paragraph 1 of Article 617 of the Civil Code of the Russian Federation on the maintenance of the lease agreement in the event of transfer of rights to the leased object to another person are not applicable to the sublease agreement, since in this norm it comes on the transfer to the new rightholder of real rights, and in the situation under consideration, by way of re-leasing, the right of obligation that belonged to the previous tenant was transferred to the plaintiff.
Referring to the absence in the law of a special provision on maintaining the sublease agreement in force in the event of the transfer of the lease right to another tenant, the plaintiff believed that the sublease right belonging to the defendant had ceased and the disputed property was free of encumbrances, therefore, with the consent of the lessor (committee), he entered into a sublease agreement with the cooperative (a third party in this case) and sued the institution for eviction in order to fulfill the requirements of Article 611 of the Civil Code of the Russian Federation to transfer the premises to a new subtenant.
Refusing to satisfy the claim, the court indicated that by virtue of paragraph 2 of Article 615 of the Code, the rules on lease agreements apply to sublease agreements, unless otherwise provided by law or other legal acts.
Consequently, the provisions of Article 617 of the Civil Code of the Russian Federation on the preservation of the lease agreement in force when the parties change, apply to sublease agreements.
Since the defendant occupies the disputed premises on the basis of a sublease agreement concluded in 1998 with the consent of the lessor for a period of five years, there were no grounds for his eviction.

18. The term of the lease agreement, which granted the tenant the right to lease, does not contradict paragraph 2 of Article 615 of the Civil Code of the Russian Federation.

The joint-stock company, on the basis of clause 3 of Article 20 of the Federal Law "On State Registration of Rights to Real Estate and Transactions with It", filed a lawsuit with the arbitration court against the Committee for Registration of Rights to Real Estate and Transactions with it for invalidating the decision to refuse to register the transaction lease concluded by the plaintiff (new tenant) with the former tenant in accordance with paragraph 2 of Article 615 of the Civil Code of the Russian Federation.
The defendant, in response to the claim, asked the court to refuse the plaintiff to satisfy his claim, believing that the lease transaction is null and void as concluded without the consent of the lessor (owner of the property) and, therefore, the refusal to register it complies with the provisions of paragraph 1 of Article 20 of the said Law.
The court attracted the lessor to participate in the case as a third party.
After examining the circumstances of the dispute, the court of first instance came to the conclusion that the defendant's refusal to register the plaintiff's lease rights is legitimate, since the consent of the lessor of the disputed premises was not obtained to conclude a lease transaction in violation of the requirements of paragraph 2 of Article 615 of the Civil Code of the Russian Federation.
At the same time, the court indicated that the term of the lease agreement concluded between the owner of the premises (lessor) and the former tenant, in accordance with which the tenant was assigned the right to sublet the leased premises and transfer rights and obligations in lease without obtaining additional permission from the lessor, does not correspond to paragraph 2 of article 615 of the Civil Code of the Russian Federation.
This norm of the law, which requires obtaining the consent of the lessor when making transactions with rental rights, is mandatory, and therefore cannot be changed by the contract. According to the court, within the meaning of paragraph 2 of Article 615 of the Code, the lessor's consent is required in relation to each sublease, re-lease and other transactions referred to in this paragraph. This rule cannot be changed by agreement of the parties by expressing the "general" consent by the lessor in the lease agreement for the lessee to make such transactions.
From the materials of the case, it appears that the lessor objected to the re-lease by the joint-stock company of the rights and obligations of the tenant, which is confirmed by letters submitted by a third party, the receipt of which the plaintiff did not deny.
Considering the above, the court dismissed the claim.
The court of appeal, which checked the legality of the adopted judicial act on the complaint of the plaintiff, canceled the decision of the court of first instance and satisfied the claim.
In its ruling, the appellate court noted that paragraph 2 of Article 615 of the Civil Code of the Russian Federation does not establish the procedure and form for the lessor giving consent to the lessee for sublease, re-lease and other transactions mentioned in this paragraph.
Consequently, at the will of the parties to the lease agreement, the lessor's consent can be expressed in the agreement itself, which frees the lessee from the obligation to obtain such consent for each specific transaction.

19. The requirements of civil legislation on the registration of a lease agreement also apply to a sublease agreement.

The lessee has applied to the arbitration court with a claim against the sub-lessee for the collection in accordance with the sublease agreement for the penalty for the delay in the payment of the rent.
The court of first instance recognized the sublease agreement signed by the parties as not concluded due to the lack of its state registration, in connection with which the claim for the recovery of the forfeit stipulated by this agreement was rejected.
Appealing against the court decision in the appellate instance, the plaintiff referred to the fact that the sublease agreement is a derivative of the lease agreement, does not have independence, is concluded for a period not exceeding the term of the lease agreement, does not additionally encumber the property rights of the property owner, and therefore is not subject to state registration.
The appellate court considered the applicant's arguments and found them unfounded, indicating that in accordance with paragraph three of clause 2 of Article 615 of the Civil Code of the Russian Federation, the rules on lease agreements apply to sublease agreements, unless otherwise provided by law or other legal acts.
The Civil Code of the Russian Federation and the Federal Law "On State Registration of Rights to Real Estate and Transactions with It" do not contain provisions that exclude the application of the state registration requirement for sublease agreements.
Consequently, the conclusion of the court of first instance that the sublease agreement of non-residential premises signed by the parties by virtue of paragraph 2 of Article 609, paragraph 2 of Article 651 of the Code was subject to state registration and could be considered concluded from the moment of such registration, is legitimate.
Considering the above, the court of appeal upheld the decision of the court unchanged.

20. The provisions of paragraph 2 of Article 621 of the Civil Code of the Russian Federation concerning the renewal of a lease agreement for an indefinite period are applied to a sublease agreement subject to the rules of paragraph 2 of paragraph 2 of Article 615 of the Code, according to which the term of a sublease agreement is in any case limited by the lease term.

The lessee has applied to the arbitration court with a claim against the sub-lessee for the obligation of the su-lessee to vacate the non-residential premises due to the expiration of the term specified in the sublease agreement.
The defendant, objecting to the stated requirement, referred to the fact that the sublease agreement is, by virtue of paragraph 2 of Article 621 of the Civil Code of the Russian Federation, renewed for an indefinite period. Since the plaintiff did not warn him in accordance with Article 610 of the Code to withdraw from the contract, the claim cannot be satisfied.
The arbitration court, resolving the dispute, proceeded from the following.
Between the plaintiff and the defendant, with the consent of the lessor, a sublease agreement was concluded, the term of which was shorter than the term specified in the lease agreement.
After the expiration of the sublease agreement, the defendant continued to use the rented premises in the absence of objections from the plaintiff.
According to the third paragraph of clause 2 of Article 615 of the Civil Code of the Russian Federation, the rules on lease agreements are applied to sublease agreements, unless otherwise provided by law or other legal acts.
Since the law does not provide otherwise, the sublease agreement between the plaintiff and the defendant by virtue of paragraph 2 of Article 621 of the Code is renewed for an indefinite period. In this case, each of the parties has the right to refuse it in the manner prescribed by article 610 of the Civil Code of the Russian Federation.
However, according to the second paragraph of clause 2 of Article 615 of the Code, a sublease agreement cannot be concluded for a period exceeding the term of the lease agreement.
The contract, according to which the plaintiff was provided with the lease of the premises, ceased to be valid due to the expiration of its term.
Consequently, the sublease agreement, which is a derivative of the lease, despite its renewal for an indefinite period, also terminated.
In such circumstances, it was not required to send a warning about cancellation of the sublease agreement in accordance with Article 610 of the Code.
Since the defendant has no other legal grounds for occupying the disputed premises, the arbitration court ordered him to vacate this premises.

21. The indication in the act of acceptance and transfer of the rented premises on the emergency state of the central heating system does not in itself mean imposing on the lessee the burden of incurring the costs of eliminating the consequences of the accident and major repairs caused by an urgent need.

The Property Management Committee (lessor), on the basis of clause 3 of part one of Article 619 of the Civil Code of the Russian Federation, filed a lawsuit against the limited liability company to terminate the lease agreement due to failure to pay the rent in due time and to evict the defendant from the occupied non-residential premises.
By a decision of the court of first instance, the claim was rejected on the grounds that the defendant (tenant) had overhauled the central heating system of the rented premises and, in accordance with paragraph 1 of Article 616 of the Civil Code of the Russian Federation, counted its cost against the rent.
By the decision of the appellate instance this decision canceled and the lessor's claim was satisfied with the reference to the fact that in the situation under consideration the lessee had no right to set off the cost of capital repairs against the rent.
In this case, the court of appeal indicated the following.
According to the terms of the contract, the lessor is obliged to carry out major overhauls of the rented non-residential premises together with overhaul of the entire building, but the scheduled overhaul of the disputed structure has not yet come. The tenant undertook the obligation to overhaul the leased object in case of urgent need, since, knowing about the shortcomings of the leased premises, in particular about the emergency state of the central heating system, he accepted this premises under the acceptance certificate (on the emergency state of the central heating system a note was made in the said act). Thus, the lessee has deprived himself of the right to charge the costs of major repairs, caused by an urgent need, to the lessor.
The cassation court, having checked the case materials in connection with the defendant's complaint, found that the defendant, opposing the stated claims, referred to the capital repairs of the central heating system by him in connection with an urgent need (accident) and the refusal of the lessor to carry out such repairs.
According to article 611 of the Civil Code of the Russian Federation, the lessor is obliged to provide the lessee with the property in a condition that complies with the terms of the lease agreement and the purpose of the property. However, as can be seen from the room handover certificate, the central heating system at the time of handover was in an emergency condition.
Assessing this circumstance, the court of cassation noted that the reference in the acceptance certificate to the emergency state of the central heating system does not in itself mean that the tenant has assumed the obligation to eliminate the consequences of possible accidents and, if necessary, carry out major repairs at his own expense.
The materials of the case confirm and the plaintiff does not dispute the fact of the failure of the central heating system. Inspection certificates drawn up with the participation of representatives of the heat supply organization and the lessor confirm the need for its overhaul.
The lessee has repeatedly asked the lessor to take urgent measures to eliminate the consequences of the accident and to overhaul the central heating system, as evidenced by the statements and telegrams in the case.
Since the landlord did not take appropriate measures, the tenant was forced to carry out major repairs at his own expense, having entered into an agreement with the contractor.
In such circumstances, the court of first instance reasonably concluded that the defendant was entitled in accordance with paragraph 1 of Article 616 of the Civil Code of the Russian Federation to set off the cost of capital repairs of the central heating system caused by an urgent need against the rent.
Taking into account the above, and also considering that the defendant did not have any other rent arrears, the cassation court canceled the appeal ruling and upheld the decision of the first instance court to refuse to satisfy the plaintiff's claim.

22. An agreement concluded between the lessor and the lessee that establishes the procedure for the lessee's participation in the costs of consumed electricity cannot be qualified as an energy supply agreement.

The joint-stock company (lessee) filed a claim with an arbitration court to invalidate the agreement, which defines the procedure for participation in the costs of consumed electricity, as not complying with the norms of the Civil Code of the Russian Federation regulating energy supply.
The court of first instance qualified the contested contract as an energy supply contract, declared it an invalid (void) transaction as contrary to Article 545 of the Code, since no permission was obtained from the energy supplying organization to connect the sub-subscriber.
The appellate court canceled the decision, dismissed the claim, proceeding from the following.
According to article 539 of the Civil Code of the Russian Federation, the parties to the power supply contract are the power supply organization and the subscriber (consumer) having an energy receiving device connected to the networks of the power supply organization.
The defendant, as a subscriber, received electricity to supply a building belonging to him on the basis of an agreement with an energy supplying organization.
The plaintiff has entered into a lease agreement for non-residential premises in a building owned by the defendant. In addition, the parties entered into a separate agreement, in which they determined the procedure for the tenant's participation in the costs of consumed electricity, having agreed on the amount and cost of electricity required by the tenant.
The parties called this agreement an agreement for the supply (vacation) and consumption of electricity for a fee, indicating the basis for its conclusion a lease agreement and calling themselves the lessor and the lessee.
Thus, the plaintiff used the electricity received by the defendant in connection with the lease of the premises. At the same time, the defendant was not an energy supplying organization.
Therefore, the conclusion of the court of first instance that the agreement, called the contract for the supply (supply) and consumption of electricity for a fee, is a contract for energy supply, is unfounded.
The contested agreement actually established the procedure for determining the plaintiff's expenses for electricity in the premises he leased and was part of the lease agreement.
There were no grounds for recognizing this agreement as invalid as contrary to the law.

23. When the owner of the leased property changes, regardless of whether the issue of renewal of the lease agreement was raised, the former owner loses, and the new one acquires the right to receive income from the lease of the property.

The limited liability company (new owner) filed a claim with the arbitration court against the joint-stock company (the former owner) to recover, on the basis of Article 1107 of the Civil Code of the Russian Federation, the income that the defendant had extracted from the property from the moment of transfer of ownership of it to the plaintiff.
The lessee of the disputed property is involved in the case as a third party who does not declare independent claims on the subject of the dispute.
The court of first instance dismissed the claim, citing the existence of a contractual relationship between the defendant and a third party. The court proceeded from the following.
The premises that the tenant occupied on the basis of a lease agreement with the defendant were purchased by the plaintiff.
The tenant was not notified of the change of ownership by either the new or the previous owner.
The plaintiff, having become the owner of the disputed property, did not raise the issue of replacing the lessor under the lease agreement for this property.
Taking into account the above, and also that the lease agreement between the defendant and a third party was not terminated or invalidated in accordance with the procedure established by law, the court concluded that the tenant lawfully paid the rent to the lessor under the agreement.
The appellate court found the arguments of the first instance court unfounded, canceled the decision, and satisfied the claim on the following grounds.
By virtue of article 617 of the Civil Code of the Russian Federation, the transfer of ownership of the leased property to another person is not a basis for changing or terminating the lease agreement. At the same time, regardless of whether the issue of renewal of the lease agreement was raised, the previous owner loses, and the new one acquires the right to receive income from the lease of property.
Since the plaintiff became the owner of the premises, and the defendant continued to receive the rent, the plaintiff's claims based on Article 1107 of the Code were subject to satisfaction.

24. The transfer of ownership of the leased property to another person in itself is not a basis for judicial amendments to the terms of the lease agreement concluded by the former owner with the lessee (except for changes in the agreement of information about the lessor).

The joint-stock company (the new owner of the property) applied to the arbitration court with a claim against the limited liability company (lessee) to amend the lease agreement regarding the name of the lessor and the lease term.
In support of the right to bring this claim, the plaintiff referred to the acquisition of a building in which several non-residential premises are occupied by the defendant on the basis of a lease concluded with the previous owner, and also submitted documents confirming the state registration of ownership.
The new owner of the building proposed to the tenant to amend the lease in terms of the name of the lessor, as well as the terms of the lease. Since the tenant refused to amend the contract, the joint-stock company filed a corresponding claim with the arbitration court.
By virtue of Articles 450, 451 of the Code, at the request of one of the parties, the contract can be changed by a court decision only in case of a significant violation of the contract by the other party, in other cases provided for by the Code, other laws or the contract, as well as in connection with a significant change in circumstances, of which the parties proceeded at the conclusion of the contract.
The arbitration court dismissed the claim, referring to Article 617 of the Civil Code of the Russian Federation, according to which the transfer of ownership (economic management, operational management) to the leased property to another person is not a basis for changing or terminating the lease agreement.
The appellate court canceled the decision regarding the rejection of the claim to change the name of the lessor in the agreement, this requirement was recognized as subject to satisfaction on the following grounds.
By virtue of Article 608 of the Civil Code of the Russian Federation, the lessor under the lease agreement is the owner of the property.
Thus, in connection with the change of the owner of the property leased by the defendant, the previous lessor ceased to be a party to the lease agreement with the defendant, therefore the plaintiff's demand for a replacement in the lessor's agreement is legitimate.

25. The grounds for early termination of the lease agreement at the request of the lessor, established in the agreement in accordance with part two of Article 619 of the Civil Code of the Russian Federation, may not be associated with any violations on the part of the lessee.

Branch railroad(the lessor), on the basis of part two of Article 619 of the Civil Code of the Russian Federation, applied to an arbitration court with a claim against a limited liability company for early termination of the lease agreement.
In support of the claim, the lessor referred to the provision of the lease agreement, according to which he has the right to demand early termination of the contract if there is a production need to operate the leased platform.
The defendant objected to the stated requirement, considering the corresponding condition of the agreement to be null and void, since, in his opinion, by virtue of part two of Article 619 of the Civil Code of the Russian Federation, other grounds for early termination of the lease agreement at the request of the lessor, in addition to those provided for in part one of this article, should be related to what - or violations of the contract by the tenant. In other words, such termination is possible only as a result of illegal actions (inaction) on the part of the tenant. Since the grounds given by the plaintiff do not meet the specified criterion, it is unreasonably included in the contract with reference to the second part of Article 619 of the Code and cannot lead to termination of the contract before the expiration of the lease term.
The lessee believed that this condition could be provided for in the contract only as a basis for the lessor's refusal to perform the contract out of court (paragraph 3 of Article 450 of the Civil Code of the Russian Federation), but the parties did not express such a will when concluding the contract.
The court disagreed with the arguments of the defendant and satisfied the claim, noting the following.
Part one of Article 619 of the Civil Code of the Russian Federation provides for a number of grounds for early termination of a lease agreement at the request of the lessor. All these grounds relate to certain violations of the contract by the tenant.
According to the second part of Article 619 of the Code, the lease agreement may establish other grounds for early termination of the agreement at the request of the lessor in accordance with paragraph 2 of Article 450 of the Civil Code of the Russian Federation.
However, the fact that the first part of this article as the grounds for termination of the contract provides exclusively for violations of the terms of the contract by the tenant does not mean that other grounds for termination included by the parties in the contract should also be related to violations of its terms.
It should be borne in mind that part two of Article 619 of the Civil Code of the Russian Federation refers to the entire paragraph 2 of Article 450 of the Code, and not only to subparagraph 1 of this paragraph. Therefore, the parties have the right to negotiate any basis for early termination of the contract in court at the request of the lessor, both related and not related to any violation.
As it follows from the evidence presented by the plaintiff, the need for the railway department to use the leased apron is due to the increase in the intensity of electric train traffic due to the increase in passenger traffic on the suburban direction, about which the lessor notified the lessee within the time period specified in the contract (three months in advance).
Thus, guided by the relevant condition of the contract, the plaintiff (lessor) had the right to demand early termination of the lease agreement.

26. The lease agreement may provide for the possibility of early termination of the agreement at the request of the lessor in the event of a single failure to pay the rent by the lessee within the period specified in the agreement.

The Property Management Committee (lessor), on the basis of part two of Article 619 of the Civil Code of the Russian Federation, applied to the arbitration court with a claim against the cooperative to terminate the lease agreement and evict the defendant from the occupied premises.
In support of the claims, the committee referred to the terms of the agreement, according to which the lessor has the right to demand early termination of the lease agreement in the event of a single violation by the tenant of the term for making the lease payment established by the agreement.
The defendant asked the court to refuse the claim, considering that the said condition of the agreement contradicts the provisions of paragraph 3 of the first part of Article 619 of the Civil Code of the Russian Federation.
By a court decision, the claims were denied on the following grounds.
By virtue of clause 3 of the first part of Article 619 of the Code, at the request of the lessor, the lease agreement may be terminated ahead of schedule by the court in the event that the lessee fails to pay the rent more than two times in a row after the expiry of the payment deadline established by the agreement.
Since such a ground for termination of the contract as a delay in the payment of rent is provided for in part one of Article 619 of the Civil Code of the Russian Federation, the condition of the contract to which the plaintiff referred to substantiate his claim did not correspond to part two of this article, since it did not establish another basis for terminating the contract.
Taking into account the fact that Article 619 of the Civil Code of the Russian Federation does not allow changes in the provisions of its first part by agreement of the parties, the plaintiff's claims were not subject to satisfaction.
The plaintiff in the appeal insisted that controversial condition included in the agreement in full compliance with the requirements of the second part of Article 619 of the Code. By virtue of clause 3 of part one of this article, the ground for terminating the contract is failure to pay rent more than two times in a row. A one-time violation by the tenant of the terms of payment of the rent established by the agreement is another reason for the termination of the lease agreement.
The appellate court upheld the position of the plaintiff, additionally noting that the ground provided for in part one of Article 619 of the Code includes not only such an element as "late payment", but also two more elements: "more than two times" and "in a row". From this point of view, in the situation under consideration, the parties determined in the agreement a different basis for its termination than is provided for in paragraph 3 of part one of Article 619 of the Civil Code of the Russian Federation.
The decision of the court of first instance was canceled, the claims were satisfied.

27. The lease agreement may provide grounds for the lessor's refusal to execute the agreement and its termination out of court, including those related to the lessee's violation of one or another term of the agreement (paragraph 3 of Article 450 of the Civil Code of the Russian Federation).

A limited liability company (lessor) applied to an arbitration court with a claim against the joint-stock company (lessee) for eviction from the occupied non-residential premises in connection with the termination of the lease agreement.
The defendant considered the plaintiff's claim unlawful, since the lease agreement, not being terminated in court, continues to operate.
During the trial, it was established that when concluding a lease agreement on the initiative of the lessor, a condition was included in the agreement providing for the grounds for the lessor's refusal to execute the agreement in accordance with paragraph 3 of Article 450 of the Civil Code of the Russian Federation. As such a basis, a one-time failure to pay the rent by the tenant within the period established by the contract was determined.
According to the defendant, this condition of the contract is null and void, since, within the meaning of Article 619 and paragraph 2 of Article 450 of the Code, certain violations of the contract by one of the parties may be grounds only for terminating the contract in court at the request of the other party, but not for the latter's refusal to execution of the contract out of court.
The court did not agree with the position of the tenant, noting that such a conclusion does not follow either from the cited norms of the law, or from the provisions of paragraph 3 of Article 450 of the Civil Code of the Russian Federation.
The fact of the violation, with which the contract binds the right of the lessor to refuse to fulfill the contract, is proved by the case materials and is not contested by the defendant. By virtue of paragraph 3 of Article 450 of the Code, in this case, the contract is considered terminated, a corresponding court decision is not required.
Since the tenant did not voluntarily vacate the occupied non-residential premises, the landlord had the right to go to court with a claim to evict him in connection with the termination of the lease.
Taking into account the above, the court satisfied the claim.

28. The lease agreement may be terminated due to the payment of the lease payment not in full, if the court recognizes this violation as significant.

The landlord filed a claim with the arbitration court against the tenant for the collection of rent arrears, a penalty for late payment and termination of the lease in connection with its material breach by the tenant.
By the decision of the court of first instance, the defendant was charged with rent arrears and a penalty, the claim for termination of the lease agreement was denied on the following grounds.
The court found that there had previously been disagreements between the parties over the amount of rent to be transferred. The defendant made the lease payments on time, but in a smaller amount, in connection with which the debt presented for collection was formed.
The first part of Article 619 of the Civil Code of the Russian Federation provides for the grounds for early termination of the lease agreement at the request of the lessor. According to the second part of the named article, other grounds for this in accordance with paragraph 2 of Article 450 of the Code may be established by a lease agreement.
Since the parties in the contract did not stipulate the possibility of its early termination in case of failure to pay the rent in full, and in part one of Article 619 of the Civil Code of the Russian Federation, such a basis for early termination of the contract is not contained, the arbitration court, having collected the rent arrears and the penalty for late payment, in he refused a claim for termination of the lease agreement.
The court of appeal overturned the decision of the first instance court regarding the refusal to terminate the lease agreement, indicating that the existence of Article 619 of the Civil Code of the Russian Federation, which establishes special rules for early termination of the agreement, does not exclude the possibility of early termination of the lease agreement on the basis of Article 450 of the Code.
According to paragraph 2 of Article 450 of the Civil Code of the Russian Federation, at the request of one of the parties, the contract can be terminated by a court decision in case of a significant violation of the contract by the other party. A violation of the contract by one of the parties is recognized as significant, which entails for the other party such damage that it is largely deprived of what it had the right to count on when concluding the contract.
After assessing the circumstances of the case and concluding that the violation committed by the defendant was significant, the court terminated the lease.

29. If the basis for termination of the lease agreement is the failure of the lessee to fulfill the obligations imposed on him, the lessor, prior to filing a claim for early termination of the agreement, is obliged to send the lessee a written warning about the need to fulfill his obligation within a reasonable time (part three of Article 619 of the Civil Code of the Russian Federation), as well as proposal to terminate the contract (paragraph 2 of Article 452 of the Code).

The Property Management Committee (the lessor) applied to the arbitration court with a claim against the joint-stock company to terminate the lease agreement and evict the defendant from the occupied non-residential premises.
This requirement was stated on the basis of clause 3 of part one of Article 619 of the Civil Code of the Russian Federation in connection with the defendant's failure to fulfill the obligation to pay rent.
By the definition of the arbitration court, the claim was left without consideration with reference to paragraph 5 of Article 87 of the Arbitration Procedure Code of the Russian Federation (hereinafter referred to as the Arbitration Procedure Code of the Russian Federation).
At the same time, the court indicated that the plaintiff did not fully comply with the requirements of the law in terms of the pre-trial procedure for resolving a dispute on early termination of the lease at the request of the lessor.
By virtue of part three of Article 619 of the Code, the lessor has the right to demand early termination of the contract only after the lessee has sent a written warning about the need to fulfill his obligation within a reasonable time.
As it follows from the materials submitted by the plaintiff, the committee sent a warning to the society, in which the question of the need to pay off the rent arrears was raised.
However, within the meaning of part three of Article 619 of the Civil Code of the Russian Federation, this warning in itself is not a proposal to amend or terminate the lease agreement. The lessor has the right to demand termination of the said agreement only if the lessee does not eliminate the corresponding violations within a reasonable time.
Since part three of Article 619 of the Code does not regulate the procedure for terminating a lease agreement, the general rule contained in paragraph 2 of Article 452 of the Civil Code of the Russian Federation applies in lease relations. According to this provision, a requirement to amend or terminate a contract can be declared by a party to the court only after the other party has received a refusal to offer to amend or terminate the contract, or if a response is not received within the time period specified in the proposal or established by law or contract, and in its absence, within thirty days. term.
In this regard, the court drew the plaintiff's attention to the fact that the warning sent to the defendant raised the question only of the need to pay off the rent arrears. The notice did not contain a proposal to terminate the contract in case of failure to fulfill this obligation within a reasonable time.
Since the plaintiff, when sending the warning, did not comply with the provisions of paragraph 2 of Article 452 of the Civil Code of the Russian Federation, the claim was subject to be left without consideration.

30. A prerequisite satisfaction of the lessor's claim for early termination of the lease agreement on the basis of Article 619 of the Civil Code of the Russian Federation is the establishment in the course of court proceedings that the lessee received a written warning from the lessor about the need to fulfill the contractual obligation.

The lessor applied to the arbitration court with a claim for early termination of the lease agreement for non-residential premises, referring to the second part of Article 619 of the Civil Code of the Russian Federation, according to which the lease agreement may establish grounds for early termination of the agreement at the request of the lessor in accordance with paragraph 2 of Article 450 of the Code.
Clause 5 of the lease agreement provides that the sublease of the leased premises without the written permission of the lessor is the basis for its early termination.
When checking the tenant's use of the premises, carried out by the lessor, it was established that an outside organization was in it, which is reflected in the acts submitted to the court.
Opposing the stated requirement, the defendant, without disputing the fact of subletting the premises he leased to a third party without the appropriate permission of the lessor, referred to non-compliance with the procedure for pre-trial settlement of the dispute established by part 3 of Article 619 of the Civil Code of the Russian Federation, indicating that he had not received a written warning from the lessor on the need to eliminate, within a reasonable time, the violation of a contractual obligation.
According to part three of Article 619 of the Civil Code of the Russian Federation, the lessor has the right to demand early termination of the contract only after the lessee has sent a written warning about the need to fulfill his obligation within a reasonable time.
The court found the defendant's argument justified, indicating that, within the meaning of part three of Article 619 of the Code, such a written warning must be received by the tenant in order for him to be able to fulfill the contractual obligation within a reasonable time.
As it was established in the course of the trial, the plaintiff, for his part, did not take appropriate measures to ensure that the defendant (tenant) received an appropriate written warning (delivery against receipt, delivery by registered mail or with acknowledgment of receipt).
There was also no other evidence of the defendant's receipt of the warning in the case file.
Taking into account the above, the court recognized the procedure for pre-trial settlement of the dispute as unobserved and, guided by paragraph 5 of Article 87 of the Arbitration Procedure Code of the Russian Federation, left the claim without consideration.

31. A lease agreement concluded in accordance with paragraph 1 of Article 621 of the Civil Code of the Russian Federation for a new term is a new lease agreement.

The joint-stock company and the owner of the building entered into a lease agreement for non-residential premises.
When concluding a lease agreement for a new term, disagreements arose between the parties over the amount of the rent.
The landlord, believing that the dispute arose about the change in the contract, referred the said disagreements to the arbitration court for resolution.
By the decision of the court of first instance, upheld by the decision of the appellate instance, the claim was rejected on the basis of paragraph two of clause 1 of Article 621 of the Civil Code of the Russian Federation, according to which, when concluding a lease for a new term, the terms of the contract can be changed by agreement of the parties.
The cassation court canceled the judicial acts and remitted the case for new consideration to the first instance court on the following grounds.
According to Article 610 of the Code, a lease agreement is concluded for a period determined by the agreement.
The lessor notified the lessee of the expiration of the lease agreement and of the need, if the defendant intends to use the property in the future, to conclude a lease agreement for a new term, which indicates the termination of the previously valid lease agreement due to the expiration of its term.
Within the meaning of Article 621 of the Civil Code of the Russian Federation, the conclusion of a lease agreement for a new term is the conclusion of a new agreement.
The claim was brought in connection with the refusal of the defendant to sign a lease for a new term due to the changes made by the lessor in terms of the amount of rent.
Thus, a pre-contractual dispute arose between the parties.
Article 22 of the Arbitration Procedural Code of the Russian Federation establishes that disputes resolved by an arbitration court include disputes about disagreements under an agreement, the conclusion of which is provided for by law or the transfer of disagreements on which the parties have agreed to the resolution of the arbitration court.
The correspondence in the case indicates that the parties discussed the issue of the possible transfer of the arisen disagreements to the arbitration court.
Taking into account the above, the court of cassation referred the case to the court of first instance, pointing out the need to clarify the issue of whether the parties agreed on such a transfer.

32. When concluding a lease agreement for a new term in accordance with paragraph 1 of Article 621 of the Civil Code of the Russian Federation, the parties are not bound by the terms of the previously valid agreement.

The Property Management Committee (the lessor) applied to the arbitration court with a claim against the lessee to collect the rent debt.
Objecting to the stated claim, the defendant referred to the fact that the amount presented for recovery from him was the difference between the rent set in the previously valid lease agreement and the rent determined when concluding a lease agreement for a new term. According to the defendant, a change in the amount of rent when concluding a lease agreement for a new term contradicts paragraph 3 of Article 614 of the Civil Code of the Russian Federation, according to which a change in rent is allowed no more than once a year.
The arbitration court found the defendant's arguments unfounded on the following grounds.
In accordance with article 621 of the Civil Code of the Russian Federation, the conclusion of a lease agreement for a new term is essentially the conclusion of a new agreement. Therefore, the parties are not bound by the terms of the previous lease.
The norm of paragraph 3 of Article 614 of the Code regulates the procedure for revising the rent during the period of the lease agreement, and therefore is not subject to application when concluding an agreement for a new term.
According to the second paragraph of clause 1 of Article 621 of the Civil Code of the Russian Federation, when concluding a lease agreement for a new term, the terms of the agreement can be changed by agreement of the parties.
The lessor's proposed draft lease agreement for a new term, providing for an increased rent, was signed by the tenant without any comments.
Considering the above, the court recognized the plaintiff's claim to recover the debt, calculated on the basis of the amount of the rent specified in the new lease agreement, legitimate.

33. Notifying the lessee before the expiration of the lease agreement about its termination and about the lessor's refusal to renew the lease relations does not in itself deprive the lessee of the opportunity to use the preemptive right to conclude a lease agreement for a new term.

The joint-stock company applied to the arbitration court with a claim against the Property Management Committee and an individual entrepreneur to transfer the rights and obligations under the lease agreement concluded between the defendants.
In support of his claim, the plaintiff referred to the fact that, in accordance with paragraph 1 of clause 1 of Article 621 of the Civil Code of the Russian Federation, he, as a bona fide tenant, upon the expiration of the contract, has, all other things being equal, the preferential right over other persons to conclude a lease for a new term.
The court of first instance, resolving the dispute, was guided by paragraph 1 of Article 621 of the Civil Code of the Russian Federation, according to which the lessee is obliged to notify the lessor in writing of the desire to conclude such an agreement within the period specified in the lease agreement, and if such a period is not specified in the agreement, within a reasonable time before the expiration contract.
In the lease agreement between the property management committee and the joint stock company, it was established that the lessee must notify the lessor of his intention to conclude a lease for a new term at least one month before the end of the lease term.
Since evidence of compliance by the plaintiff with the requirements of Article 621 of the Code and the agreement on written notification of the lessor of the intention to conclude a lease for a new term has not been presented, the court concluded that the plaintiff had lost the preemptive right to conclude a lease for a new term, and therefore recognized the stated requirement for the transfer of rights and obligations under a lease agreement concluded by the defendants that is not subject to satisfaction.
Appealing to the appellate instance the decision taken on the merits of the dispute, the plaintiff referred to the fact that he was deprived of the opportunity to notify the lessor of his intention to conclude a contract for a new term, since the latter, prior to the expiration of the contract, had been notified of the refusal to renew the lease.
The appellate court ruled that this argument of the applicant was unfounded, stating that the notification sent by the lessor only indicated an intention to terminate the previous lease in connection with the expiration of the term specified in it. This circumstance did not prevent the plaintiff from exercising his right to conclude a lease agreement for a new term in accordance with Article 621 of the Civil Code of the Russian Federation.

34. The preferential right to conclude a lease agreement for a new term belongs only to the lessee under the agreement.

An individual entrepreneur applied to an arbitration court with a claim to compel the property management committee to conclude a lease agreement for non-residential premises.
At the same time, the plaintiff referred to the fact that he actually uses the disputed premises, pays for utilities and pays rent, therefore he has the preferential right to conclude a lease agreement.
The basis for the appeal to the court was the conclusion by the defendant of an agreement for the lease of the said premises with a joint-stock company.
According to paragraph 1 of Article 621 of the Civil Code of the Russian Federation, unless otherwise provided by law or by the lease agreement, a tenant who has properly performed his duties, upon the expiration of the term of the agreement, has, all other things being equal, the preferential right over other persons to conclude a lease agreement for a new term.
The arbitral tribunal found that the committee intended to conclude a lease agreement with the entrepreneur and prepared a draft agreement and calculation of the rent, but the essential terms of the agreement were not agreed by the parties.
Since the entrepreneur was not a party to the lease agreement, the arguments about his preemptive right to renew the lease agreement are unfounded.
In view of the above, the court dismissed the claim.
This decision was upheld by all courts.

35. The tenant's preemptive right to conclude a lease agreement for a new term can be exercised by him only in the event that the lessor transfers the disputed property to a third party for lease.

The tenant filed a claim with the arbitration court against the lessor for the transfer of the rights and obligations under the non-residential premises lease agreement concluded by the latter with another person.
In support of the stated claim, the plaintiff referred to the transfer of the disputed premises for use to a third party, while by virtue of paragraph 1 of Article 621 of the Civil Code of the Russian Federation, he, as a tenant who properly fulfilled his contractual obligations, has a pre-emptive right to conclude a lease agreement for a new term.
When making the decision, the court proceeded from the fact that, in accordance with paragraph 1 of Article 621 of the Code, unless otherwise provided by law or the lease agreement, a tenant who properly performed his duties, upon the expiration of the term of the agreement, has, all other things being equal, the right of priority over other persons to conclusion of a lease agreement for a new term. If the lessor refused the tenant to conclude a contract for a new term, but within a year from the date of the expiration of the contract with him entered into a lease with another person, the tenant has the right, at his choice, to demand in court the transfer of the rights and obligations under the concluded contract and compensation for losses, caused by the refusal to renew the lease with him, or only compensation for such losses.
According to the evidence presented in the case, the disputed non-residential premises are subject to transfer by the defendant to a third party in free use in connection with the implementation of joint activities by them.
Therefore, the court recognized the plaintiff's link to Article 621 of the Civil Code of the Russian Federation as unfounded, and the claim not subject to satisfaction.

36. In the event that the place of fulfillment of the obligation to transfer movable property by the lessee to the lessor after the termination of the lease agreement is not specified in the lease agreement, the property shall be transferred in the place where it was received by the lessee.

The lessor applied to the arbitration court with a claim against the lessee to collect rent for the period of delay in returning the rented car in accordance with Article 622 of the Civil Code of the Russian Federation.
The court of first instance, having established that the car rental agreement had been terminated ahead of schedule, satisfied the claim. At the same time, the court proceeded from the fact that, according to Article 622 of the Code, if the tenant did not return the leased property or returned it untimely, the lessor has the right to demand that the rent be paid for the entire period of delay.
The appellate court overturned this decision and dismissed the claim on the following grounds.
In accordance with paragraph 3 of Article 405 of the Civil Code of the Russian Federation, the debtor is not considered overdue until the obligation can be fulfilled due to the creditor's delay. The creditor is considered overdue if he refused to accept the proper performance proposed by the debtor or did not perform the actions provided for by law, other legal acts or an agreement or arising from the customs of business turnover or from the essence of the obligation, before the commission of which the debtor could not fulfill his obligation (Article 406 of the Civil Code of the Russian Federation ).
Since the parties did not stipulate the place of return of the leased property in the lease agreement, the court applied paragraph six of Article 316 of the Civil Code of the Russian Federation, according to which the performance must be made at the location of the legal entity that is the debtor.
The materials of the case confirmed the fact that the rented car was parked by the lessee and remained there until it was handed over to the lessor. In addition, the lessee has repeatedly sent notices to the lessor about his readiness to return the car.
The court of cassation overturned the decision of the appellate instance and upheld the decision of the first instance court, indicating that paragraph 6 of Article 316 of the Civil Code of the Russian Federation in this case was applied by the court incorrectly. This rule applies to cases where the transfer of property is the main obligation of the debtor under the contract.
In this case, the obligation of the lessee, which arose after the termination of the lease agreement, consists not in the actual transfer, but in the return of the property to the lessor.
Therefore, being guided by the first paragraph of Article 316 of the Code, it should be recognized that from the essence of this obligation it follows that the return must take place in the place where this property was received by the lessee.
In this regard, the lessee was obliged to hand over the car to the lessor in the place where it was received.

37. The lessor shall not have the right to demand from the lessee the rent for the period of delay in the return of the property due to the termination of the contract if the lessor himself avoided accepting the leased property.

The lessor applied to the arbitration court with a claim to recover the rent from the lessee on the basis of part two of Article 622 of the Civil Code of the Russian Federation for the use of non-residential premises from the moment of termination of the lease agreement until the signing of the acceptance certificate.
The court of first instance, having established the fact of delay in returning the property to the lessor, satisfied the claim.
The appellate court canceled the decision and dismissed the claim on the following grounds.
The disputed non-residential premises were provided for use by the defendant on the basis of a lease agreement, which had expired.
In accordance with article 622 of the Civil Code of the Russian Federation, if the lessee did not return the leased property or did not return it on time, the lessor has the right to demand that the rent be paid for the entire period of delay.
In the contract, the parties agreed that after the expiration of its validity period, the tenant is obliged to return the non-residential premises according to the deed of transfer signed by the parties.
According to the evidence presented, the defendant, by the end of the contract, vacated the premises and repeatedly notified the lessor of its readiness to transfer it with the execution of an act, as provided for by the contract. However, the act was not completed in a timely manner.
By virtue of Article 309 of the Code, obligations must be performed properly in accordance with the terms of the obligation and the requirements of the law.
Since the untimely return of the property to the lessor by the lessee was caused by the latter's evasion of acceptance of this property, the court declared the claim not subject to satisfaction.

38. Collection of rent for the actual use of the leased property after the expiration of the contract is made in the amount determined by this contract.

The Property Management Committee applied to the arbitration court with a claim to recover from the joint-stock company the rent arrears calculated from the moment of termination of the contract until the premises were vacated.
Opposing the claim, the defendant referred to the fact that, in accordance with paragraph 3 of Article 453 of the Civil Code of the Russian Federation, the obligations of the parties are considered terminated from the moment of termination of the contract, therefore, when determining the amount of lease to be collected, the lessor cannot be guided by its terms.
This agreement provided for a rent, the amount of which was significantly higher than the rental rate usually applied when renting similar property, which, in particular, was the reason that prompted the joint-stock company to terminate the lease relationship ahead of schedule.
The rent for the disputed period, calculated according to the method approved by the city administration, is listed before the initiation of the case.
The court satisfied the claim, referring to the second part of Article 622 of the Civil Code of the Russian Federation, according to which a tenant who untimely returned the property is obliged to pay rent for the entire period of delay. Thus, by virtue of the law, the termination of the lease does not in itself entail the termination of the obligation to pay rent, it will be terminated by the proper fulfillment by the tenant of the obligation to return the property to the lessor.
Since in this case the joint-stock company untimely fulfilled the obligation to return the premises, the rent established by the contract is subject to collection from it for the entire time of delay.

39. The lessor has the right to demand from the lessee the payment of interest for the use of other people's funds in the event of a delay in the payment of the rent and for the period from the moment of termination of the lease agreement until the return of the property to the lessor.

The trading and production company filed a lawsuit against the limited liability company in an arbitration court to collect rent arrears and interest for the use of other people's funds.
During the trial, it was established that after the termination of the lease agreement, the defendant (lessee) returned the property provided under the agreement to the lessor with a significant delay. The rent demanded by the plaintiff (lessor) is charged for the period from the moment of termination of the lease agreement until the return of the rented property.
The claim was partially satisfied by the decision of the court of first instance. On the basis of part two of Article 622 of the Civil Code of the Russian Federation, the defendant was charged rent for the entire period of delay in returning the property.
The claim to collect interest for the use of other people's funds was denied with reference to the fact that Article 622 of the Code does not provide for any other type of liability for the late return of the leased property, except for compensation for losses caused to the lessor.
By virtue of this provision, in the event that the rent charged for the period of delay in returning the rented property does not cover the losses caused to the lessor, he may demand compensation.
In the cassation appeal, the plaintiff asked the court's decision regarding the refusal of the claim for the recovery of interest to cancel and the claim to satisfy in full, considering that the interest for the use of other people's funds can be collected in appropriate cases for any monetary claim, regardless of the basis for its occurrence.
The cassation court agreed with the arguments of the plaintiff (lessor), drawing attention to the following.
Article 395 of the Civil Code of the Russian Federation establishes a general rule according to which for the use of other people's funds due to their unlawful withholding, evasion of their return, other delay in their payment, or unjustified receipt or savings at the expense of another person, interest on the amount of these funds must be paid.
Based on the content of the cited norm and other provisions of Article 395 of the Code, this article shall be applied to any monetary obligation, regardless of what kind of legal relationship it arose within.
The lessee's obligation to pay rent for the period of delay in returning the rented property is monetary.
In addition, the court noted that the norm of part two of Article 622 of the Civil Code of the Russian Federation cannot be interpreted in such a way that the lessor in relations with the tenant who does not return the property after the termination of the lease agreement would be put in a worse position than in relations with the tenant using the property. on the basis of a valid contract.
Considering the above, the court of cassation changed the decision of the first instance court and satisfied the lessor's claim in full.

40. The court, taking into account the lease term and the value of the leased property, recognized the lease as a major transaction for the lessor, since as a result of its execution, his production activities were actually terminated.

The joint-stock company (lessor) applied to the arbitration court with a claim against the limited liability company (lessee) to invalidate the lease agreement as concluded in violation of the requirements of Article 79 of the Federal Law "On joint stock companies".
The court established that, under the contested agreement, the production premises with expensive equipment located in them were leased for a period of 15 years. The cost of the disputed property at the time of the conclusion of the contract was 80 percent of the cost of the fixed assets of the joint-stock company.
Thus, the property that the joint-stock company needed to carry out its main production activities was leased out. Only minor auxiliary services, not related to the main profile of its activities, remained in the use of the company.
Considering that as a result of this transaction, the plaintiff's production activities, which gave his main income, were actually terminated, the court recognized the contested transaction for the plaintiff as major. In this regard, it had to be concluded in accordance with the procedure established by Article 79 of the Federal Law "On Joint Stock Companies".
The argument of the defendant to approve the contested transaction in connection with the acceptance of the rent by the plaintiff was recognized by the court as unfounded.
Since the transaction essentially deprived the plaintiff of the main item of income for a long time, his acceptance of rent in an amount disproportionately lower than the income received by the joint-stock company from production activities, in itself, could not serve as an approval of such a transaction.
In connection with the failure to comply with the requirements of Article 79 of the Federal Law "On Joint Stock Companies" in the course of the contested transaction, the court satisfied the claim.

(Erdelevsky A.M.)

(Prepared for the ConsultantPlus system, 2007)

Prepared for the ConsultantPlus system

COMMENTARY ON REVIEW OF RESOLUTION PRACTICE

RENTAL DISPUTES

(INFORMATION LETTER OF THE PRESIDIUM OF YOU RF

The material was prepared using legal acts

A. M. ERDELEVSKY

INTRODUCTION

As statistics show, disputes related to lease, especially lease of real estate, continue to occupy a significant place in the practice of Russian arbitration courts. Very essential to ensure a uniform approach of arbitration courts to resolving such disputes, it has a Review of the practice of resolving disputes related to lease (hereinafter referred to as the Review), brought to the attention of the arbitration courts by an information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 66 dated January 11, 2002. However, the substantiation made in this Review the conclusions are often incomplete or lacking in clarity, and the conclusions themselves in some cases appear to be controversial or contradictory. Meanwhile, for the correct application with the help of the Survey of the legal norms governing rental relations, it is necessary to have an accurate understanding of the internal logic of individual provisions of the Survey, their relationship with the provisions of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code) and other regulations used in the Survey. The following commentary will help the reader to achieve this goal.

Commentary on paragraph 1.

The essence of this dispute was reduced to the qualification of the contract for the compensated use of a part of the roof of the building. As follows from clause 1 of the Review, the court did not recognize such an agreement as a lease agreement and, as a result, did not consider it possible to apply the rule of clause 1 of Art. 621 of the Civil Code that if the lessor refused the tenant to conclude a contract for a new term, but within a year from the date of expiration of the contract with him entered into a lease with another person, the tenant has the right, at his choice, to demand in court the transfer of rights and obligations under the concluded the contract and compensation for losses caused by the refusal to renew the lease agreement with him, or only compensation for such losses.

The essence of the position of the court is that the structural elements of the building, which include the roof of the building, are not independent real estate objects (that is, they are not separate individually defined non-consumable things) and therefore cannot be leased.

Of course, this position should be taken into account, and if the user wants to acquire an indisputable pre-emptive right to conclude an agreement on the use of a thing or part of it for a new period, such a right of the user should be provided for in the agreement. In this case, the owner of the thing will be obliged to conclude a contract for a new period not on the basis of paragraph 1 of Art. 621 of the Civil Code, and on the basis of the relevant clause of the contract on the use of the thing and general provisions about obligations and contracts.

At the same time, it should be noted that at present the position of the court does not seem to be quite consistent with the approach of the Russian legislator to the subject of the lease agreement. This conclusion can be made as a result of the analysis of some norms of the new Housing Code of the Russian Federation (hereinafter referred to as the Housing Code). So, according to paragraph 1 of Art. 36 LCD, common property in an apartment building includes premises that are not part of apartments and are intended to serve more than one room in this building, including inter-apartment staircases, staircases, elevators, elevators and other shafts, corridors, technical floors, attics, basements in which there are engineering communications, other equipment serving more than one room in this house (technical basements), as well as roofs that enclose the load-bearing and non-load-bearing structures of this house, mechanical, electrical, sanitary and other equipment located in this house for outside or inside the premises and serving more than one premises, the land plot on which this house is located, with elements of landscaping and improvement and other objects intended for the maintenance, operation and improvement of this house, located on the specified land plot. Thus, the roof is part of the common property. apartment building as a separate object.

According to paragraph 4 of Art. 36 LCD objects of common property in an apartment building can be transferred for use to other persons if this does not violate the rights and legitimate interests of citizens and legal entities... Since this rule does not provide for any exceptions for individual objects of common property, the roof can be the subject of a contract for both paid and free use. From subparagraph 12 of paragraph 2 of Art. 145 and subparagraph 3 of clause 2 of Art. 152 ZhK it follows that parts of the common property in an apartment building can be the subject of a lease agreement. It seems that from these norms of the ZhK it follows that at present the Russian legislator does not exclude the possibility of specifying the roof of a building as the subject of a lease agreement, if the requirement of paragraph 3 of Art. 607 of the Civil Code on the certainty of the subject of the lease. In the case of a roof, this means that when a part of the roof is handed over for use, its boundaries must be clearly indicated in the contract.

Commentary to paragraph 2.

Before proceeding to the legal analysis of this paragraph of the Review, it is advisable to pay attention to the financial side of the relationship between the parties, as far as it is possible to understand it from the insufficiently set out circumstances of the case. So, the lessor and the lessee entered into a lease agreement for a river motor ship for a period of four years with the right to purchase the leased property. According to the terms of the agreement, the total cost of the lease was USD 520 thousand, the lease payments were payable by the lessee annually for four years within the terms established by the agreement, and after the last lease payment was made, the ship became the lessee's ownership. As can be understood from the analyzed paragraph of the Review, by the time the decision was made by the court of first instance, the following situation had developed between the parties: the four-year lease term expired, the tenant paid only 355 out of 520 thousand dollars, therefore, the total debt should have amounted to 165 thousand dollars ...

What did the plaintiff (landlord) require? He demanded to recover from the defendant (lessee) the amount of rent arrears and return the ship. The court of first instance satisfied the claim in full, collecting the amount of debt from the lessee in favor of the lessor and obliging the lessee to return the ship to the lessor. In terms of debt collection, the court obviously proceeded from the terms of the contract, which provided for the lessee's obligation to pay the corresponding rent, and in terms of reclaiming the ship, the court proceeded from the rule of Art. 622 of the Civil Code, according to which, upon termination of the lease agreement, the lessee is obliged to return the leased property to the lessor.

The decision seems to be quite legitimate - after all, the tenant really did not pay part of the lease payments, which means he must pay them; in addition, due to incomplete payment of lease payments, he never acquired ownership of the ship, therefore, the lessor, as the owner, has the right to demand the return of his property. And at the same time, the decision, at least at first glance, is striking in its obvious injustice. How is it that, as a result of such a decision, the lessor, who, by concluding the contract, was ready to part with him if the lessee paid 520 thousand dollars, will now receive these 520 thousand and at the same time retain his ownership of the ship?

The appellate court apparently tried to help restore justice by resorting to paragraph 3 of Art. 609, art. 624 and clause 2 of Art. 489 of the Civil Code, using the following logical structure: according to clause 3 of Art. 609 of the Civil Code, a property lease agreement, which provides for the subsequent transfer of ownership of this property to the lessee (Article 624 of the Civil Code), is concluded in the form provided for a sale and purchase agreement, therefore, as the court of appeal considered, clause 2 is applicable to the relations of the parties Art. 489 of the Civil Code, according to which, when selling goods on credit with the condition of payment by installments, the buyer does not make the next payment for the goods sold by installments and transferred to him within the period established by the contract, the seller has the right, unless otherwise provided by the contract, to refuse to execute the contract and demand the return of the goods sold, except in cases where the amount of payments received from the buyer exceeds half of the price of the goods. Since in this case the lessee paid the lessor 355 thousand dollars out of the required 520 thousand dollars, that is, more than half of the cost of the ship, the court of first instance had no grounds for obliging the defendant to return this property to the plaintiff. Guided by this logic, the court of appeal overturned the decision of the first instance court in this part, refusing to return the river ship. If the decision of the appellate instance remained in force, only the amount of the debt would be subject to collection from the lessee, and the ship would remain with him. This seems quite fair.

However, the ruling of the appellate instance suffered from an obvious defect, in connection with which, based on the results of the consideration of the cassation appeal, the ruling of the appellate instance was canceled and the decision of the first instance court was upheld. The cassation court correctly indicated that paragraph 3 of Art. 609 of the Civil Code indicates only the need, when concluding a lease agreement, which provides for the subsequent transfer of ownership of the leased property to the lessee, to be guided by the rules on the form of the sale and purchase agreement of the corresponding property, in connection with which the relations of the parties related to the redemption of the leased property are not the rules governing the purchase and sale of goods on credit with the condition of payment by installments may be applied. The court of cassation also correctly noted that in this case the expiration of the lease term did not mean the ship was transferred into the ownership of the lessee, since the lease payments were not paid in full, therefore, by the time the plaintiff made the relevant claim, the defendant did not have any rights to the disputed property: ownership was not acquired, and the lease was terminated due to the expiration of its term.

So, the formally legal decision of the court of first instance and the ruling of the cassation instance leave a feeling of obvious injustice, and the fair ruling of the appellate instance raises serious doubts about its motivation. Was it possible to make a decision in this case that would be both legal and fair? It appears that such a solution can be proposed.

First of all, it should be noted that the application of clause 2 of Art. 489 of the Civil Code by analogy with the law (clause 1 of Art. 6 of the Civil Code) in the case under consideration is hardly possible. First, the legislator in paragraph 3 of Art. 609 of the Civil Code directly indicated in what part it is possible to apply the rules on the sale of goods on credit with the condition of payment by installments to the lease agreement with the right to purchase. Secondly, these are different contracts and it cannot be ruled out that the lessor, concluding an agreement on the sale of the ship on credit, and not on lease terms with the option to purchase, would not have determined the price of the ship and the terms of the installment plan in a different way.

Let us turn to the few provisions of the Civil Code on a lease with the right to purchase. In paragraph 3 of Art. 609 of the Civil Code, such an agreement is called a property lease agreement, which provides for the subsequent transfer of ownership of this property to the lessee. In paragraph 1 of Art. 624 of the Civil Code stipulates that the law or the lease agreement (as was the case in the case under consideration) may provide that the leased property becomes the property of the lessee upon the expiration of the lease term or before its expiration, provided that the lessee pays the entire redemption price stipulated by the agreement. Thus, a specific feature of a lease with an option to purchase, as compared to a conventional lease, is that it contains a purchase price clause, which is an essential condition of such an agreement. At the same time, one of the conditions of the lease is a condition on the amount of rent, but this condition is general rule does not belong to the essential terms of the lease.

Clause 1 of Art. 614 of the Civil Code defines rent as payment for the use of property, therefore, payments under an ordinary lease agreement have the legal status of rent with all the ensuing consequences, in particular in the form of the tenant's obligation to pay rent in a timely manner, as provided for in the specified norm. With regard to a lease with an option to purchase, payments under such an agreement have a dual status - rent and purchase price. The redemption price is paid by the lessee not for the use of the leased property, but for the acquisition of ownership rights to it. Therefore, the establishment of the total value of the lease payments as the redemption price in the lease with the right to redemption means that the parties have agreed only on the total amount, which includes the payment for the use of the property (rent) and the payment for the acquisition of property into ownership (redemption price).

Meanwhile, the only obligation of the tenant is to pay the rent. The introduction of the redemption price as payment for the acquisition of property into ownership is not the responsibility of the lessee, but his right, the exercise of which is a condition for the emergence of his right of ownership of the leased property not a right, but a duty of the buyer). If the lessee, for some reason, could not or did not want to use this right, then the only consequence of this would be the impossibility of acquiring ownership of the leased property. The risk of the absence in the lease with the right of purchase of an exact delineation and determination of the size of the rent itself and the purchase price is borne by the party whose claims or objections are related to the need to prove these circumstances. Therefore, in the case referred to in the commented paragraph of the Review, not the entire amount stipulated by the contract was subject to recovery, but only the rent in the exact sense of the word. Since such a rent was not specified in the contract, it was subject to determination according to the rules of paragraph 3 of Art. 424 of the Civil Code, that is, the rent was subject to collection in the amount that is paid under comparable circumstances when concluding a regular lease agreement (that is, a lease without the right to buy out) similar property for a similar period.

Commentary on paragraph 3.

The commented point of the Review is related to the application of the Civil Code norms on the calculation of terms in conjunction with the norms on state registration of the lease of buildings and structures. Such an agreement, by virtue of paragraph 2 of Art. 651 Civil Code, is subject to state registration only if the contract is valid for at least one year. The lessor considered that the agreement concluded for a period from 06/01/2000 to 05/31/2001 is an agreement concluded for a period of less than a year and, therefore, does not need state registration to conclude it, and the lessee considered the specified agreement to be concluded for exactly one year and , respectively, requiring state registration.

The conclusion of the court in this case is correct, since the start and end dates of the contract were determined in this case by calendar dates, and not by the expiration of a period of time (Article 190 of the Civil Code). It should be noted that if the contract was concluded, for example, for a period of one year, indicating the start date of its course on 06/01/2000, then in this case the one-year period would begin to run on the next day after this date, that is, from 06/02/2000 and would expire on the corresponding date of the beginning of the month and day of the last year of the term, that is, 01.06.2001 (Article 191, Clause 1 of Article 192 of the Civil Code). Similarly, the term of the contract concluded for one year with the indication of the start date of 05/31/2000 as the start date would begin its course from 06/01/2000 and would expire on 05/31/2001 (Article 191, Clause 1 of Article 192 of the Civil Code).

Commentary to paragraph 4.

If at the time of the conclusion of the agreement there was no approved plan for the reconstruction of the building (which, obviously, took place in this case), that is, neither of the parties knew whether the reconstruction would begin or not, then the lease agreement can be considered as a transaction made under a canceling condition (clause 2 of article 157 of the Civil Code). In this case, the lease agreement is concluded for an indefinite period and is terminated both in connection with the onset of the canceling condition, and in connection with the refusal of either of the parties from the agreement in compliance with the rules of paragraph 2 of Art. 610 GK. However, if at the time of the conclusion of the contract there already existed an approved reconstruction plan, including the date of its commencement, then in this case the lease would have to be considered concluded for a certain period, while the date of the end of the lease would be the date of the start of reconstruction indicated in the approved plan.

Commentary to paragraph 5.

With regard to the commented point of the Review, one should, firstly, pay attention to the fact that paragraph 2 of Art. 610 of the Civil Code establishes the rules not for termination, but for the termination of a lease agreement concluded for an indefinite period, while Art. 619 of the Civil Code (in conjunction with clause 2 of Art. 450 of the Civil Code) determines the grounds and procedure for early termination of the lease agreement. Secondly, it should be noted that the rule of paragraph 2 of Art. 452 of the Civil Code, which provides for the obligation of the party wishing to terminate the contract, to first contact the other party with a proposal to terminate the contract, is not applicable to the case when the termination of the contract is related to the grounds specified in Art. 619 CC. In this case, a special rule of Art. 619 of the Civil Code, according to which the lessor has the right to demand early termination of the contract only after sending the tenant a written warning about the need to fulfill his obligation within a reasonable time.

Some doubts about the correctness of the court's approach to the decision of the considered case are associated with the application of Art. 619 GK to a lease agreement concluded for an indefinite period. The fact is that this rule establishes the grounds for early termination of the lease agreement. This formulation assumes that we are talking about the termination of a lease, the term of which is determined. If the contract is concluded for an indefinite period, then each of the parties has the right to cancel the contract at any time, notifying the other party about this one month in advance, and when renting real estate three months in advance, an appeal to the court in this case is not required (clause 2 article 610 of the Civil Code). Therefore, it seems, to refer to the rules of Art. 619 of the Civil Code, it is necessary that a lease agreement concluded for an indefinite period turns into a fixed-term lease agreement through compliance with the rules of paragraph 2 of Art. 610 of the Civil Code, since after the tenant has been sent a warning about cancellation of the contract, its term becomes certain (respectively, one or three months from the moment the tenant receives the warning). After that, if the need to terminate the contract in court is nevertheless urgent, the tenant can resort to the rules of Art. 619 CC. However, taking into account the terms established by law for the consideration of cases by arbitration courts and courts of general jurisdiction (which are not always strictly observed, especially by courts of general jurisdiction), the contract by the time the case is considered by the court will already be terminated on the basis of paragraph 2 of Art. 610 of the Civil Code, in connection with which the proceedings on the case will be subject to termination.

Commentary to paragraph 6.

The ruling of the court of appeal is, without a doubt, absolutely correct. Recovery of a forfeit is a form of civil liability for improper performance of obligations. To collect a forfeit, the party must improperly fulfill its obligations under the contract. Prior to the conclusion of the contract, the tenant did not have an obligation to pay rent and other payments, so there could not have been a fact of improper performance by the tenant of this nonexistent obligation.

The extension of the terms of the agreement to previously established relations does not mean the creation of a fiction of facts and relations that did not exist before the conclusion of the agreement. With regard to the case under consideration, this means that relations regarding the use of property did exist before the conclusion of the contract, therefore the terms of the contract can be extended to them, while there was no relationship of responsibility for improper performance of an obligation between the parties (due to the absence of the obligation itself), in this connection, there is no object (relationship) itself, to which the terms of the concluded contract could be applied with retroactive effect.

Commentary to paragraph 7.

As noted in the comments to the previous paragraphs of the Review, paragraph 2 of Art. 610 of the Civil Code determines the procedure for termination, at the initiative of either of the parties, of a lease agreement concluded for an indefinite period. The contract is terminated from the moment of expiration of the term stipulated in this norm without a court decision on this matter. The eviction claim is related to the termination of the lease only insofar as, until the termination of the agreement, the tenant retains the right to use the leased premises and, therefore, cannot be evicted. Therefore, no procedural actions of the parties or the court can eliminate the civil law consequences of the warning of the party to a lease agreement concluded for an indefinite period of its termination.

It seems incorrect only if the court leaves the claim for eviction without consideration. The grounds for leaving a claim without consideration are defined in Art. 148 APK. Obviously, from the grounds specified in this norm, the court had in mind the grounds established in paragraph 2 of Art. 148 of the APC (the plaintiff did not comply with the claim or other pre-trial procedure for resolving a dispute with the defendant, if this is provided for by federal law or contract). However, this rule is inapplicable in this case, since the law does not provide for compliance with any pre-trial procedure for filing a claim for eviction, and the termination of the lease, as explained above, does not require going to court at all. Therefore, the court had to refuse the claim due to the plaintiff's lack of the right to demand the eviction of the defendant before the termination of the lease agreement, which would not prevent the tenant from again applying to the court with the same claim in connection with the onset of a new circumstance - the expiration of the period established by paragraph 2 of Art. 610 GK.

Commentary on paragraph 8.

This paragraph of the Review does not require comments, since the circumstances of the case are presented with sufficient completeness, and the reasoning part of the court's decision and the conclusions drawn by it do not leave ambiguities or doubts about the case considered and the correctness of the decision.

Commentary to paragraph 9.

This paragraph of the Review, like the previous one, hardly requires detailed comments. The lessee, to whom the leased item was not transferred, did not really acquire the title owner's status and therefore could not use the proprietary methods of protection provided for in Art. Art. 301, 304, 305 Civil Code. One should only pay attention to the fact that the tenant did not have the opportunity to reclaim the subject of the lease from the lessor, since the latter was no longer the owner of the leased property - it was in the possession of a third party. Therefore, the tenant could resort to only one method of civil legal protection - to demand termination of the contract and compensation for losses caused by its failure to perform, although it is very difficult to prove the amount of losses and their causal relationship with non-fulfillment of an obligation in such cases.

Commentary on paragraph 10.

In dismissing the claim, the court relied on the provision of Art. 328 of the Civil Code on the counter performance of obligations. According to paragraph 1 of Art. 328, the counter is the fulfillment of an obligation by one of the parties, which, in accordance with the contract, is conditional on the fulfillment of its obligations by the other party. Although the decision adopted by the court in the operative part is not in doubt, its reasoning part does not allow us to fully agree with it regarding the reference to Art. 328 CC. Article 328 of the Civil Code shall be applied in cases where there are obligations of each of the parties to the agreement and this agreement (and not by law) the performance of one of the obligations is due to the performance of the other. In the case under consideration, a somewhat different situation took place. According to paragraph 1 of Art. 614 of the Civil Code, rent is understood as payment for the use of property. Until the property is transferred, use of it cannot occur, therefore, until the transfer of the property to the tenant, the obligation to pay rent simply does not arise (no use - there can be no payment for use). Since the obligation to pay rent during the specified period does not yet exist, there is no need to suspend or waive it.

Commentary on paragraph 11.

Both cases referred to in the commented paragraph of the Review are related to the application of paragraph 3 of Art. 614 GK. This norm, due to its ambiguity, deserves special attention. It establishes that, unless otherwise provided by the contract, the amount of the rent can be changed by agreement of the parties within the terms provided for by the contract, but not more often than once a year. The norm is presented very poorly. It is not clear from its text what kind of agreement it is talking about - an agreement that is one of the parts of the lease agreement to be concluded, according to which the change in rent during the term of the agreement can occur no more than once a year, or about an agreement to change the size of the lease fees, concluded as an amendment to an existing contract. As can be seen from the commented paragraph of the Review, the arbitral tribunal made a choice in favor of the first version of interpretation. It follows that the parties, concluding a lease agreement, which provides for a fixed amount of rent or the procedure for calculating it, are not entitled to provide in advance for a change in this amount or order more often than once a year, that is, we are talking about prohibiting more frequent changes in the amount of rent. in the contract without changing the contract itself. However, by mutual agreement, the parties can change the already concluded agreement, including in terms of the amount of rent, as often as they like.

Another ambiguity in paragraph 3 of Art. 614 of the Civil Code is that it is not entirely clear from its text what the words "unless otherwise provided by the contract" refer to - to the possibility of changing the rent during the period of the contract, in principle, or to the rule about the possibility of changing the amount of rent no more than once in year. Since the second version of the interpretation would completely weaken the limitation of the frequency of changes in the amount of rent established in the analyzed norm, such an interpretation should be rejected and the first version of interpretation should be settled. However, in the first version, the noted phrase turns out to be redundant, since if the parties in the lease provided for the amount of rent and did not say anything about its change during the term of the contract, then this amount of rent will remain unchanged throughout the entire period without special instructions on this in the contract.

Commentary on paragraph 12.

The case cited in the commented paragraph of the Review is not as clear-cut as it might seem. The same applies to the court rulings issued in this case. The noted ambiguity is due to the fact that it is not clear from the Survey what form of payment for utility services was discussed. If the tenant paid only for the utilities actually consumed by him, then such payment really cannot be considered a counter-provision for the rented building. In this situation, the landlord does not receive anything in return for the subject of the lease, therefore the conclusion of the court that the lease was not concluded is correct.

But another situation is also possible - some utilities can be paid according to the standard, that is, regardless of whether the actual use of the corresponding services occurs. In this situation, the assumption by the tenant of the obligation to pay for such services releases the lessor from the obligation to pay for them (after all, the lessor would bear such expenses even if he did not lease the building and did not use it himself). Therefore, with this option of paying for utilities, the tenant is interested in renting out the premises that he actually does not use, at least in order not to bear the costs of paying for utilities. Thus, the exemption by the lessee of the lessor from payment of expenses that the lessor would have to make regardless of the actual use of the corresponding services creates an element of compensation in the lease, therefore such an agreement must be recognized as concluded.

Commentary on paragraph 13.

According to Art. 622 of the Civil Code (this rule is not mentioned in the commented paragraph of the Review), the lessee is obliged to return the leased property to the lessor upon termination of the lease agreement, and the lessor, accordingly, is obliged to accept this property. The essence of the lease agreement implies the inadmissibility of the tenant's early fulfillment of the obligation to return the property (Article 315 of the Civil Code), since the admission of the possibility of early return of the property on the basis of the unilateral expression of the will of the lessor would mean the possibility of early termination (termination) of the lease agreement without observing the rules on preliminary warning provided for in paragraph . 2 tbsp. 610 of the Civil Code, and beyond the scope of the list of grounds for early termination of the contract at the request of the lessee (Article 620 of the Civil Code). Indeed, after the lawful return of the leased property, the grounds for further collection of rent (since it is a payment for the use of the property) are lost, therefore the lease agreement as a whole is terminated.

It follows that the lessor is not obliged to accept the leased property before the termination of the lease agreement, and the lessee is not entitled to require the lessor to accept this property. Thus, the lease payments are payable for the entire period of the lease agreement, even if the lessee has stopped the actual use of the leased property.

Commentary on paragraph 14.

With regard to this paragraph of the Review, attention should be paid to the following. First, the court's decision would be exactly the opposite if both sides did not act as entrepreneurs. Secondly, the court's decision would also be exactly the opposite if the tenant tried to remove the equipment on time, that is, immediately after the expiration of the lease term, and the landlord would prevent him from doing so.

Commentary on paragraph 15.

With regard to the commented point of the Review, attention should be paid to the following. The essence of the dispute was whether the lessee's consent to subletting the premises extended only to the sublease agreement (with the corresponding sublease period), before the conclusion of which the lessee had sought consent from the lessor, or for the entire duration of the lease agreement.

The fact is that in paragraph 2 of Art. 615 of the Civil Code laconically states that the lessee has the right, with the consent of the lessor, to sublet the leased property. However, the duration and scope of this consent depends on how it is sought and given.

If the lease agreement itself or in a separate agreement between the lessor and the lessee indicates that the lessee has the right to sublease the property without obtaining the additional consent of the lessor before concluding separate sublease agreements, such a condition has the meaning of the consent given in advance by the lessor to the lessee to conclude sublease agreements with any person for any conditions (including for any period within the term of the lease agreement) - the so-called "general" consent.

If the lessee asks the lessor for consent to conclude a sublease agreement with a certain person, without notifying the lessor about the validity period and other terms of the agreement, and the lessor gives such consent, without making any reservations regarding the term or other terms of the sublease agreement, then such consent gives the tenant the right to sublease the property only to the specified person within the entire duration of the lease agreement (obviously, in the commentary paragraph of the Review, the court considered that this kind of consent was given).

Finally, if the lessee asks the lessor for consent to conclude a sublease agreement with a specific person, attaching a draft sublease agreement to the request, then the consent given by the lessor applies only to those conditions (including the sublease period) that were specified in the project.

See also paragraph 18 of the Review.

Commentary on paragraph 16.

The essence of the issue in the case under consideration is that the lease right can never be transferred in its pure form, since this right is always encumbered with certain obligations (refrain from using property contrary to its purpose, maintain property in good condition) and cannot be transferred separately from them. Thus, the assignment of the lease right is possible only with the simultaneous transfer of the debt (the tenant's obligations), that is, in the re-lease procedure, which is allowed only with the consent of the lessor (clause 2 of article 615 of the Civil Code). Since no such consent was obtained, the court's conclusions are correct.

Commentary on paragraph 17.

The essence of the problem with which the case given in paragraph 17 of the Review is connected is as follows. In paragraph 2 of Art. 615 established that the rules on lease agreements apply to sublease agreements, unless otherwise provided by law or other legal acts. In this case, the question was whether the rule on the lease agreement established in Art. 617 of the Civil Code, which is called "Preservation of the lease agreement in force when the parties change." This article establishes that the transfer of ownership (economic management, operational management, life-long inherited ownership) to the leased property to another person is not a basis for changing or terminating the lease agreement. It is clear that this rule is not literally applicable to the sublease agreement, since the party providing the property in the sublease agreement is not the owner or other owner of the property right (as is the case in the lease agreement), but the lessee, about whom in Art. 617 GK is not mentioned.

The court correctly applied the logical interpretation of this rule, taking into account its title. When using the rule of paragraph 2 of Art. 615 on the application of the rules on a lease agreement to a sublease agreement, one should proceed from the fact that these rules apply to a sublease agreement in accordance with its legal nature, including the subject composition of the parties inherent in this agreement.

Commentary on paragraph 18.

In this case, the court clearly expressed the opinion on the admissibility of the "general" consent of the lessor to re-lease, sublease property, etc. (Clause 2, Article 615 of the Civil Code). See also the commentary to paragraph 15 of the Review.

Commentary on paragraph 19.

As noted in clause 6 of the Review of the practice of resolving disputes related to the application of the Federal Law "On state registration of rights to real estate and transactions with it" (information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 16, 2001 N 59), registration of real estate generated by a lease agreement property encumbrance of the real estate rights of the lessor to immovable property by the rights of the lessee is made on the basis of Art. 26 of this Federal Law on State Registration only upon registration of the real estate lease agreement itself. Thus, by registering a lease agreement, the lease right is registered as an encumbrance on real estate. The fact that the right to lease is registered as a limitation (encumbrance) of rights to real estate also follows from Art. 1 of the same Federal Law, where it is stated that the restrictions (encumbrances) subject to state registration are understood as the existence of conditions, prohibitions established by law or authorized bodies in the manner prescribed by law, restricting the rightholder in the exercise of ownership or other property rights to a specific immovable property (easement , mortgage, trust, lease, seizure of property and others).

Therefore, the logic of the plaintiff's reasoning in the commented paragraph of the Review is correct in the sense that if the sublease right did not encumber the ownership or other property right to the subleased property, then there would be no sufficient grounds for the requirement for state registration of the sublease agreement. But the sublease right still burdens the ownership right, although not to the same extent as the lease right, since under certain conditions the subleaseholder acquires the right to claim directly against the owner. This follows, for example, from Art. 618 of the Civil Code, according to which, in the event of early termination of the lease agreement, the sub-lessee has the right to conclude a lease agreement with him for the property that was in his use in accordance with the sublease agreement, within the remaining sublease period on terms corresponding to the terms of the terminated lease agreement. Thus, the decision of the court of appeal is correct not only formally, but also in essence.

Commentary on paragraph 20.

This paragraph of the Review does not require detailed comments. Even in the case where the sublease agreement is concluded for an indefinite period, it is valid only as long as the lease is valid. If the lease is terminated, the sublease agreement is also considered terminated. If the lease agreement is terminated ahead of schedule, the subleaser has the right to demand the conclusion of a lease agreement with him, but not preserve the sublease agreement (Article 618 of the Civil Code).

Commentary on paragraph 21.

In this case, the subject of the dispute was the verification of the legality of the major repairs carried out by the tenant in connection with the emergency state of the central heating system, offsetting the cost of repairs at the expense of the rent (that is, at the expense of the lessor). The decisions of the courts of first and cassation instances on the recognition of this action of the lessee as legitimate are fully consistent with the law.

As a general rule, Art. 616 of the Civil Code, the lessor is obliged to carry out capital repairs of the leased property at his own expense. The imposition of this obligation on the tenant is possible only in cases provided for by law, other legal acts or the lease agreement. The act of acceptance and transfer is not part of the lease agreement, but is a document confirming the fulfillment by the lessee of the obligation to transfer the property to the lessee for use in good condition. Therefore, a mark in the act on the emergency state of the central heating system could in no way mean the lessee's consent to incur expenses for its elimination at his own expense. From this mark it only followed that the lessor and the lessee had jointly certified the fact of the faulty condition of the property being leased, that is, the fact of improper performance by the lessor of the obligation to transfer the property in good condition.

Overhaul must be carried out within the time period established by the contract, and if it is not specified in the contract or is caused by an urgent need (in this case, the urgent need for overhaul was due to an accident) - within a reasonable time. Violation by the lessor of the obligation to carry out major repairs gives the lessee the right of his choice: to make major repairs, provided for by the contract or caused by an urgent need, and to recover from the lessor the cost of repairs or set off it against the rent; demand a corresponding reduction in rent; demand termination of the contract and compensation for losses. In the case cited in the commented paragraph of the Review, the tenant quite rightly chose the first of the listed behaviors.

Commentary on paragraph 22.

The validity of the position of the court of appeal is beyond doubt. However, in connection with the case described in this paragraph of the Review, attention should be paid to the following. The court was faced with the question of determining the legal nature of the agreement concluded between the parties on the procedure for participation in the costs of paying for consumed electricity. As practice shows, often the parties to the agreement, due to legal ignorance, assign the concluded agreement and themselves names that do not correspond to the legal nature of this agreement.

In fact, neither the name of the contract, nor the name of the parties predetermine its legal nature. They create only the assumption that the contract is exactly the type of contract that follows from its name. However, this assumption is refuted if the content of the contract (its terms) indicates that this contract is a contract of a different type.

The type of contract is determined precisely by its content, and not by its name. This follows, in particular, from the rules for the interpretation of the contract, which are established in Art. 431 Civil Code. According to this article, when interpreting the terms of the contract, the court takes into account the literal meaning of the words and expressions contained therein. The literal meaning of the terms of the contract in case of its ambiguity is established by comparison with other terms and the meaning of the contract as a whole. Thus, the interpretation, that is, analysis in order to establish the meaning of the contract, is primarily subject to the terms (that is, the content) of the contract. The name of the contract can be meaningful only insofar as a condition not directly provided for in the contract can be derived from it.

For example, a contract named as a sales contract may consist of only one phrase: "The seller undertakes to transfer a certain thing to the buyer." It will follow from such an agreement that the seller undertakes to transfer this thing to the buyer for ownership (and not for paid or gratuitous use), since it is the transfer of property into ownership that is the legal purpose of the sale and purchase agreement. But if the contract, called the contract of purchase and sale, will consist of the phrase "the seller undertakes to transfer a certain thing to the buyer for temporary reimbursable use," such an agreement, despite its name, will turn out to be a lease agreement. However, if the conclusion of such an agreement was caused by a delusion of one of the parties to the agreement regarding its nature, such a party has the right to demand that such an agreement be declared invalid as a transaction made under the influence of error (Article 178 of the Civil Code).

Commentary on paragraph 23.

This point of the Review, despite the perfectly obvious correctness of the conclusions of the court of appeal, still requires clarification. In this case, the defendant tried to use some ambiguity in paragraph 1 of Art. 617 of the Civil Code, which bears the name "Preservation of the lease agreement in force in the event of a change in parties."

In paragraph 1 of Art. 617 indicates that the transfer of ownership (economic management, operational management, life-long inherited ownership) to the leased property to another person is not a basis for changing or terminating the lease agreement. Based on the text of paragraph 1 of Art. 617, the respondent apparently stated something like the following: “Yes, another person became the owner of the leased property. But, by virtue of paragraph 1 of Art. 617 of the Civil Code, this circumstance is not capable of entailing either a change or termination of the lease agreement. Consequently, the lease agreement remains in the form in which it existed earlier, that is, with my participation as a lessor under this agreement. "

What is the defendant's inaccuracy in this position? The fact is that a change in the parties to a contract is not a change in the contract itself. A change in a contract means only a change in its conditions, that is, a change in the content of a contractual obligation. This conclusion follows from the title of Art. 617 of the Civil Code, from which it follows that the concept of "changing the parties" is not covered by the concept of "changing the contract", and, for example, from paragraph 1 of Art. 453 of the Civil Code, from which it follows that a change in a contract means a change in the content of a contractual obligation (terms of a contract).

The fact that the change in the party to the lease, acting as the lessor, occurs automatically when the owner changes, is indicated by the rules of clause 1 of Art. 617 of the Civil Code on the preservation of the lease agreement in its original form when the parties change and Art. 608 Civil Code, according to which the right to lease property belongs to its owner. Thus, since the lease continues to exist, there is also a lessor with inherent rights, and this can only be a new owner of the property.

WITHOUT A DAY BUT A YEAR

A lot of time has passed since the Presidium of the Supreme Arbitration Court of the Russian Federation adopted Information Letter No. 66 "Review of the practice of resolving disputes related to rent" dated 11.01.2002. This clarification, designed to resolve differences in cases where this cannot be done on the basis of a literal reading of the law, on the contrary, only raised new questions.

Optimal term

As a general rule, a lease agreement for a building or structure is concluded in writing by drawing up one document signed by the parties (clause 1 of article 651 of the Civil Code of the Russian Federation). An exception to it is established by clause 2 of this article, according to which if this agreement is concluded for a period of one year or more, then, among other things, it is subject to state registration and is considered concluded only from the moment of such registration. Due to this, the participants in civil turnover, naturally, preferred to conclude lease agreements for buildings or structures for a period of less than a year.

To conclude such an agreement for the longest possible, in the absence of the need for state registration, the term in business practice is most widespread in the wording establishing its validity period from January 1 to December 31 of one year.

Likewise, it has become customary to set the term of the contract from any other date of any month of one year to the day preceding that date in the next year (for example, from February 1, 2000 to January 31, 2001). The term determined in this way by the courts as one year, as a rule, was not considered.

Wind of change

The situation changed dramatically with the appearance of the above Letter, paragraph 3 of which clarified that the term of the lease agreement for the building (structure), determined from the 1st day of any month of the current year to the 30th (31st) day of the previous month of the next year, in order to apply paragraph 2 of Art. 651 of the Civil Code of the Russian Federation should be recognized as equal to one year.

The adoption by the highest court of this clarification led to the fact that all previously concluded lease agreements for buildings and structures overnight were declared not concluded with all the ensuing legal consequences.

We also add here contracts that were concluded without taking into account the specified clarification later, when it did not yet become widely known among the participants in civil turnover.

Do not forget about contracts, the parties to which are not experienced in legal intricacies and do not even suspect the existence of this interpretation. The above is quite enough to realize the seriousness of the current situation.

Illegal deduction

Let's try to figure out what the VASRF Presidium was based on, supporting the conclusion of the lower court.

Unfortunately, the text of the real estate lease agreement itself, which caused the disagreement on this dispute, is not available to us. In view of this, it remains only to carefully study the text of the official interpretation once again.

It can be seen from this text that there is a discrepancy between the interpretation itself, which refers to the duration of the contract until the date specified in it, and its rationale, which contains the contract concluded on the date specified in it. This circumstance has already been pointed out in the literature.

So, I.M. Ashikhmin talks about the contradiction of this approach to the rules of the Russian language (Ashikhmin I.M.

In turn, A.V. Ёрш, based on the lexical meaning of the prepositions "by" and "to" indicates that "in the case of using the preposition" by "the last day of the period must be included in the term of the contract, and in the case of using the preposition" to "this day is not included in the term of the contract" (Yorsh A.V. Commentary to the Information Letter of the Supreme Arbitration Court of the Russian Federation of January 11, 2002 No. 66 "Review of the practice of resolving disputes related to lease" // Practice of resolving commercial disputes: analysis and comments of resolutions of the Plenum and reviews of the Presidium of the Supreme Arbitration Court of the Russian Federation. 1 / under the editorship of A.L. Novoselova, M.A. Rozhkova. M., 2007 // SPS "ConsultantPlus").

It is interesting (I.M. Ashikhmin also draws attention to this) that a year later the Presidium of the VASRF in its Decree No. 9523/02 of 14.01.2003 on case No. A41-K1-8587 / 02 determined the term of the contract from September 17, 2000. until September 16, 2001 as valid through September 15, 2001 inclusive, while emphasizing the fact that the preposition "before" was used in it to mean "not including the date following this preposition."

However, the court found a way out of the confusion with the prepositions "to" and "to" more than simple: they resort to using the wording "to (to)", thereby giving both prepositions the same meaning, the essence of which is that the agreement is valid on the date specified in it (see, for example, the resolution of the FAS VCO dated 20.02.2008 No. refused to the Presidium of the Supreme Arbitration Court of the Russian Federation for revision) and dated 20.08.2007 No. A10-5925 / 06-F02-5393 / 07).

It seems that the use of such a method is unacceptable, since it does not meet paragraph 1 of Art. 431 of the Civil Code of the Russian Federation, that is, the literal meaning of the prepositions "to" and "to", which carry completely different semantic loads, which the Presidium of the Supreme Arbitration Court of the Russian Federation rightly drew attention to in its aforementioned Resolution.

When assessing the interpretation supported by the highest court, one cannot ignore the issue of its compliance with the current legislation. Within the meaning of par. 1 clause 1 of article 192 of the Civil Code of the Russian Federation, the term, calculated in years, expires in the same month and date of the last year of the period as its beginning is determined, and in the absence of such a date - on the last day of this month (paragraph 3 of clause 3 of Art. 192 of the Civil Code of the Russian Federation). In view of this, one cannot but agree with the opinion of T.V. Bogacheva, who, considering paragraph 3 of the Letter, writes: “The conclusion of the Presidium of the Supreme Arbitration Court of the Russian Federation is not entirely accurate as it does not meet the rules of paragraph 1 of Art. 192 of the Civil Code on the end of a period calculated in years "(Civil law. Part two: Textbook / editor-in-chief V.P. Mozolin. M., 2004 // SPS" ConsultantPlus ").

On the contrary, A.M. The Erdelevsky conclusion of the court considers correct, since "the dates of the beginning and the end of the contract were determined in this case by calendar dates, and not by the expiration of a period of time (Article 190 of the Civil Code)" (Erdelevsky A.M. Commentary on the review of the practice of resolving disputes related to rent ( Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 11, 2002 No. 66) // Prepared for the ATP ConsultantPlus). This argument seems to be at least strange, since the determination of the term by means of calendar dates was aimed precisely at avoiding the establishment of a one-year term by deducting one day!

Of greatest interest is the wording of clause 3 of the Letter, according to which the term of the lease agreement for the building (structure), determined from the first day of any month of the current year to the 30th (31st) day of the previous month of the next year, is not itself equal to the year, namely for the purpose of applying paragraph 2 of Art. 651 of the Civil Code of the Russian Federation must be recognized as such.

Thus, there is an exemption from the general rules for calculating time limits in civil law Chapter 11 of the Civil Code of the Russian Federation for the purposes of applying paragraph 2 of Art. 651 of the Civil Code of the Russian Federation, that is, they should not be applied in relation to this norm! It seems that such exemptions should be recorded not in the official explanations of the current legislation, but at the legislative level, by making appropriate amendments to Chapter 11 of the Civil Code of the Russian Federation and (or) clause 2 of Art. 651 of the Civil Code of the Russian Federation.

Better to be safe

Be that as it may, but while the clarification under consideration in clause 3 of the Letter continues to operate, we have no choice but to conclude by pointing out certain features of its application in practice.

First of all, we note that the courts for some reason consider it possible to apply this exemption for land lease cases (paragraph 2 of Art. 26 of the RF LC), although in paragraph 2 of Art. 651 of the Civil Code of the Russian Federation refers only to the lease of buildings and structures! (see, for example, Resolution of the FAS DO dated 15.08.2008 No. F03-A59 / 08-1 / 2680, resolutions of the FAS PO dated 19.12.2007 No. A06-2373 / 2007-9 and dated 23.08.2007 No. A57-14055 / 06- 1).

The conclusion of an 11-month lease agreement for buildings and structures, which is very common today, cannot be called anything other than reinsurance. To avoid the need for state registration of such an agreement, it is enough to conclude it for a period that is less than a year by two calendar days (see, for example, Resolution of the FAS SKO dated May 18, 2005 No. F08-2044 / 2005, in which the court reasonably indicated that the land lease agreement the plot dated April 1, 2003 was concluded for a period not until March 31, 2004, but until March 30, 2004, that is, for a period of less than a year, therefore it is not subject to state registration).

Finally, we emphasize that this clarification is not interpreted restrictively by the courts, but is applied based on its general meaning. So, the term of the agreement may not be split into two calendar years, being established from January 1 to December 31 of any one year.

Despite the fact that the clarification provides a case when the term of the agreement falls at once for two calendar years, it also applies to the above term, i.e. a lease agreement for a building or structure concluded for such a period is also recognized as concluded for one year and is subject to state registration (see, for example, Resolutions of the FAS ZSO dated 10.04.2008 No. F04-2090 / 2008 (2575-A75-39) and dated 26.08. 2003 No. F04 / 3996-1167 / A46-2003, resolutions of the FAS SZO dated 25.09.2008 No. A05-11996 / 2007 and dated 06.04.2007 No. A13-5002 / 2006-04).

Similarly, the courts apply this clarification to the duration of contracts, the beginning of which does not fall on the first day of the month of one year, and the end of which does not fall on the corresponding date of the next year, which is not the 30th (31st) (Resolution of the FAS DO dated 08.09.2008 No. F03-A51 / 08-1 / 3636, Resolution of the FAS PO dated 28.01.2007 No. A12-2294 / 06-С14-5 / 41, Resolution of the FAS SZO dated 27.03.2007 No. A21-7304 / 2005). A similar procedure applies if the expiration date of such an agreement falls on the last day of the month, which is the 28th or 29th (see, for example, Resolution of the FAS PO dated 28.02.2005 No. A65-10279 / 04-СГ2-24 and Resolution FAS SZO dated 01.11.2004 No. A05-1245 / 04-30).

Evseev Evsei Fedorovich
lawyer, post-graduate student of the Modern Humanitarian Academy

[email protected]

Civil Code, N 14-FZ | Art. 614 of the Civil Code of the Russian Federation

Article 614 of the Civil Code of the Russian Federation. Rent (current edition)

1. The lessee is obliged to pay the payment for the use of the property (rent) in a timely manner.

The procedure, conditions and terms for making the rent are determined by the lease agreement. In the event that they are not determined by the contract, it is considered that the procedure, conditions and terms have been established, which are usually applied when renting similar property under comparable circumstances.

2. The rent is set for all leased property as a whole or separately for each of its component parts as:

1) payments determined in a fixed amount, made periodically or at a time;

2) the established share of products, fruits or income received as a result of the use of the leased property;

3) the provision of certain services by the lessee;

4) the transfer by the lessee to the lessor of the thing stipulated by the contract into ownership or lease;

5) imposing on the tenant the costs of improving the leased property stipulated by the contract.

The parties may provide in the lease agreement for a combination of the specified forms of rent or other forms of payment for the lease.

3. Unless otherwise provided by the contract, the amount of the rent may be changed by agreement of the parties within the time frames provided for by the contract, but not more often than once a year. The law may provide for other minimum terms for revising the amount of rent for certain types of lease, as well as for the lease of certain types of property.

4. Unless otherwise provided by law, the lessee shall have the right to demand a corresponding reduction in the rent if, due to circumstances for which he is not responsible, the conditions of use provided for by the lease agreement or the condition of the property have significantly deteriorated.

5. Unless otherwise provided by the lease agreement, in the event of a significant violation by the tenant of the terms of payment of the lease payment, the lessor shall have the right to demand from him an early payment of the lease payment within the period established by the lessor. In this case, the lessor does not have the right to demand early payment of the rent for more than two consecutive terms.

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1. Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 11, 2002 No. 66 "Review of the practice of resolving disputes related to rent" // The text of the letter was published in the "Bulletin of the Supreme Arbitration Court of the Russian Federation", 2002, No. 3.

2. Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 5, 1997 No. 14 "Review of the practice of resolving disputes related to the conclusion, amendment and termination of contracts" // The text of the review was published in the "Bulletin of the Supreme Arbitration Court of the Russian Federation", 1997, No. 7.

3. Information letter of the Supreme Arbitration Court of the Russian Federation dated July 25, 2000 No. 56 "Review of the practice of resolving disputes related to contracts for participation in construction." Clause 4 // The text of the letter was published in the newspaper "Economics and Life", August 2000, No. 34, in the Bulletin of the Supreme Arbitration Court of the Russian Federation, 2000, No. 9.

4. Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 15, 1999 No. 39 "Review of the practice of considering disputes related to the use of letter of credit and collection forms of settlements" // The text of the letter was published in the newspaper "Fiansovaya Rossiya" dated March 18-24, 1999 No. 10, in the newspaper "Economics and Life", No. 13, March 1999, in the journal "Regulations of the Central Accountant" dated March 25, 1999 No. 7, in the "Bulletin of the Supreme Arbitration Court of the Russian Federation", No. 4, 1999, in the "Departmental Supplement to Russian newspaper"Dated April 10, 1999

5. Letter of the Supreme Arbitration Court of the Russian Federation of July 29, 1998 No. 36 "On some issues of the application of the Law of the Russian Federation" On the use of cash registers in the implementation of cash settlements with the population // The text of the letter was published in the newspaper "Economy and Life", September 1998, No. 37, in the "Bulletin of the Supreme Arbitration Court of the Russian Federation", 1998, No. 9, in the journal "Normative acts for an accountant" dated October 1, 1998, No. 19.

6. Resolution of the Federal Arbitration Court of the Volgo-Vyatka District of December 7, 2001 No. А29-5260 / 01 А: bank accounts on behalf of individuals, as well as the transfer of goods (performance of work, provision of services) to the population in exchange for other goods (work, services). "

Literature

1. Andreeva, L. The form of the contract and the consequences of its non-compliance // Russian justice. - 1999. - No. 2. - P. 15.

2. Anokhin, V, Exchange agreement: issues of theory and practice of consideration of disputes / V. Anokhin, E. Neznamova // Economy and law. - 2002. -№11.

3. Invalid transactions: tax consequences // Accounting supplement to the newspaper "Economy and Life". - 2000 .-- June. - Release of AKDI BP No. 22.

4. Bogdanov, E.V. Specificity and social significance business contracts// Magazine Russian law... - 2002 .-- January. - No. 1.

5. Buzanov, V. The right to a firm as an object of civil turnover // Economy and law. - 2002. - No. 8.

6. Bryzgalin, A.V. Accountant and contract. Set of business contracts and document flow of enterprises with legal, arbitration and tax commentary / A.V. Bryzgalin, V.R. Bernik, A.N. Golovkin// Tax and finance law. - 2001. - No. 7, 8.

7. Grudtsyna, L.Yu. Simultaneous collection of contractual forfeit and interest for the use of other people's money: double responsibility? // Law and Economics. - 2003. -№ 5.

8.Dzyuba, I.A. Limits of the parties' possibilities to establish conditions in the agreement on limitation and release from liability // Law and Economics. - 2003. - No. 8.

9. Larina, N. How to avoid mistakes when drawing up a contract // Law and Economics. - 2003. - No. 11.

10. Kucher, A. Pre-contractual agreements in accordance with Russian legislation and some other legal systems // Economy and Law. - 2002. - No. 11.

11. Safonov, M.N. Intermediary agreements in the new Russian economic conditions // Journal of Russian law. - 2003. - No. 9.

12. Sarbash, S. Execution of a contractual obligation by a third party // Economy and law. - 2003. - No. 3.

13. Semenov, M. Written form of transactions in Russian civil law // Economy and law. - 2003. - No. 2.

14. Tsvetkov, I. Some Compliance Issues writing contracts // Economy and law. - 2003. - No. 2.