Property transfer agreements. Agreement for the gratuitous use of property sample Agreement on the transfer of property into ownership sample

Gr. , passport: series, number, issued, residing at:, hereinafter referred to as " Lender", On the one hand, and in the person acting on the basis, hereinafter referred to as" Borrower", On the other hand, hereinafter referred to as the" Parties ", have entered into this agreement, hereinafter" Contract", About the following:

1. THE SUBJECT OF THE AGREEMENT

1.1. Under this Agreement, the Lender undertakes to provide the Borrower for free temporary use, and the Borrower undertakes to accept the property specified in Appendix No. 1 to this Agreement, hereinafter referred to as the “Property”, and promptly return it in good condition, taking into account normal wear and tear.

1.2. The property belongs to the Lender on the right of ownership, which is confirmed.

1.3. The Lender guarantees that before the signing of this Agreement, the property transferred to anyone else has not been sold, donated, mortgaged, not encumbered with the rights of third parties, and is not in dispute or under arrest (prohibition).

1.4. The borrower will use the property in accordance with its purpose for entrepreneurial activity.

2. RIGHTS AND OBLIGATIONS OF THE PARTIES

2.1. The lender undertakes:

2.1.1. Within days after signing this Agreement, transfer the property specified in clause 1.1 of this Agreement to the Borrower. The transfer of property is confirmed by an acceptance certificate signed by both Parties.

2.1.2. Provide property in good condition, allowing it to be used in accordance with its intended purpose.

2.2. The borrower undertakes:

2.2.1. Maintain the property in good condition in compliance with the rules for its operation and bear all the costs of its maintenance, including paying taxes related to its use.

2.2.2. Immediately warn the Lender if the property is found to be unsuitable or of poor quality and stop using it. The Borrower who did not warn the Lender about the specified circumstances or who continued to use the property without waiting for the Lender's response is not entitled to refer to these circumstances in the event of a dispute.

2.2.3. If the property is out of order due to improper use by the Borrower, repair the property at your own expense.

2.2.4. Do not transfer property for rent, for free use to other persons, do not transfer your rights and obligations under this Agreement to third parties, do not pledge property.

2.2.5. Use the property as follows:.

2.3. The property specified in clause 1.1 of this Agreement is transferred for free temporary use with all its accessories and related documents (instructions for use, technical passport).

3. RESPONSIBILITY OF THE PARTIES

3.1. If the property under this Agreement was transferred without its accessories and documents related to it, without which it cannot be used for its intended purpose or its use significantly loses its value for the Borrower, the latter has the right to demand the provision of such accessories and documents to him or termination of the Agreement and compensation for the actual damage suffered.

3.2. The Party that has not fulfilled or improperly fulfilled its obligations under this Agreement is obliged to reimburse the other Party for the losses caused by such non-performance, unless otherwise provided by the current legislation and this Agreement.

3.3. The borrower shall indemnify for losses if they have arisen as a result of his guilty actions or inaction.

3.4. The lender is responsible for the defects of the property, which he deliberately or by gross negligence did not stipulate when concluding this Agreement.

3.5. The Lender is liable for harm caused to a third party as a result of the use of the property, unless he proves that the harm was caused due to intent or gross negligence of the Borrower or his employee.

3.6. For non-fulfillment or improper fulfillment of other obligations under this Agreement, the Parties shall bear responsibility established by the current legislation Russian Federation.

4. RISK OF ACCIDENTAL DEATH OR ACCIDENTAL DAMAGE TO PROPERTY

4.1. The Lender bears the risk of accidental loss or accidental damage to property, except for the cases specified in clause 4.2 of this Agreement.

4.2. The Borrower bears the risk of accidental loss or accidental damage to property if the property is lost or damaged due to the fact that he used it not in accordance with this Agreement or the purpose of the property or transferred it to a third party without the consent of the Lender. The borrower also bears the risk of accidental loss or accidental damage to property if, taking into account the actual circumstances, he could have prevented its loss or damage by donating his property, but chose to keep his property.

5. TERM OF THE CONTRACT. AMENDMENT AND TERMINATION OF THE AGREEMENT

5.1. This Agreement comes into effect from the moment of its signing by both Parties and is valid until "" 2020.

5.2. The Agreement may be changed or terminated early by written agreement of the Parties, as well as in other cases provided for by the current legislation of the Russian Federation or this Agreement.

5.3. The Borrower has the right to demand termination of this Agreement:

• upon detection of deficiencies that make the normal use of property impossible or burdensome, the presence of which he did not know and could not have known at the time of the conclusion of the Agreement;
• if the property, due to circumstances for which he is not responsible, turns out to be in a condition unsuitable for use;
• if at the conclusion of the Agreement the Lender did not warn him about the rights of third parties to the property;
• if the Lender fails to fulfill the obligation to transfer the property or its accessories and related documents.

5.4. The Lender has the right to demand termination of this Agreement in cases where the Borrower:

• uses the property not in accordance with the Agreement or the purpose of the property;
• does not fulfill the duties of maintaining property in good condition or maintaining it;
• significantly worsens the condition of the property;
• transferred the property to a third party without the Lender's consent.

5.5. This Agreement is terminated on the grounds established by the current legislation of the Russian Federation.

6. FORCE MAJEURE

6.1. Neither of the Parties to this Agreement shall be liable to the other Party for failure to fulfill obligations due to circumstances that have arisen against the will and wishes of the Parties and which cannot be foreseen or prevented (force majeure), including declared or actual war, civil unrest, epidemics, blockade, earthquakes , floods, fires and other natural disasters, as well as prohibitive actions of the authorities and acts of state bodies. A document issued by the relevant competent authority is sufficient confirmation of the existence and duration of force majeure.

6.2. A Party that does not fulfill its obligation due to force majeure must immediately notify the other Party of the occurrence of these circumstances and their impact on the fulfillment of obligations under the Agreement.

7. DISPUTE RESOLUTION

7.1. All disputes and disagreements that may arise between the Parties on issues that have not been resolved in the text of the Agreement will be resolved through negotiations on the basis of the current legislation of the Russian Federation.

7.2. In case of non-settlement in the negotiation process, disputes are resolved in court in the manner prescribed by the current legislation of the Russian Federation.

8. FINAL PROVISIONS

8.1. In all other respects that are not provided for by the terms of this Agreement, the Parties are guided by the current legislation of the Russian Federation.

8.2. This Agreement is drawn up in 2 copies having the same legal force, one copy for each of the Parties.

Appendix # 1. Characteristics of property transferred for free use.

9. LEGAL ADDRESSES AND PAYMENT DETAILS OF THE PARTIES

Lender Registration: Postal address: Passport series: Number: Issued by: By: Phone:

Borrower Yur. address: Postal address: INN: KPP: Bank: Settlement / account: Correspondent / account: BIK:

10. SIGNATURES OF THE PARTIES

Lender _________________

Borrower _________________

INTRODUCTION

The topic of this term paper devoted to
agreements on the transfer of property (thing) to temporary ownership and
use. Civil law refers such contracts to property.
Such relevance is carried out on the basis of the object and content of the legal
relationship generated by the contract. Property is the contract on
the basis of which there is a property-legal connection (property
relation); it ensures the movement of material goods (exchange of goods).
The overwhelming majority of contracts in civil law are property contracts. V
this term paper discusses only some of them, namely:

- rent contracts, life contract
dependent maintenance;

Lease agreements

- contracts of lease of residential premises, rental.

In addition, in term paper
the features of lease and lease agreements involving
public law entities.

The relevance of this topic is difficult
overestimate. The treaties have been known for centuries, they are intended
ensure stability in key areas of society, stability,
stability and certainty of property and personal non-property relations.
They implement the most important beginning of human life - the decision of life
questions on the basis of consent, dialogue, mutually agreed will.

The purpose of this course work is to consider and
study these contracts, identify the features and subtleties of their conclusion.

Coursework consists of an Introduction, five
chapters, Conclusions, List of used literature.

ChapterI... Concept
annuity agreement

An annuity contract is an agreement by virtue of
which one party (the recipient of the rent) transfers to the other party (the payer
rent) into the ownership of the property, and the payer of the rent undertakes in exchange for
the property received is periodically paid to the recipient in the form of
a certain amount of money or the provision of funds for its maintenance in
in another form (Article 583 of the Civil Code of the Russian Federation).

An annuity agreement is:

- real;

- compensated;

- bilateral.

Subjects. By the recipient
annuities can only be citizens, with the exception of permanent annuity recipients,
which can also be non-profit organizations, if this does not contradict
the law and the purposes of their activities. Restrictions on the subject composition of payers
no rent has been established.

The form. Any contract
rent is subject to notarization, and the contract providing
alienation of immovable property against payment of rent, is also subject to
state registration.

Essential terms and conditions. V
depending on the term of the contract, a constant annuity is distinguished (the obligation to pay
annuity - indefinite) and life annuity (obligation to pay annuity - for a period
life of a citizen). The rights of the recipient of permanent annuity are transferred, transferred by
inheritance or by way of succession to persons who could be recipients
rent, unless otherwise provided by law or contract.

The subject of the annuity contract is as
movable (including money) and immovable property. As a variety
life annuity allocate a contract for life maintenance of a citizen with
dependent, the subject of which can only be real estate.

Life annuity cannot be
less than one minimum wage per month. Lifetime total cost
maintenance with dependents cannot be less than two minimum wages per month. For constant
annuity there are no requirements for its minimum size.

With a life annuity set in
the benefit of several citizens, their shares in the right to receive rent are considered
equal, unless otherwise provided by the contract. In the event of the death of one of
of annuity recipients, his share of the right to receive annuity passes to survivors
to its recipients of rent, unless otherwise provided by the contract.

Unless otherwise provided by the contract,
periodicity of payment of permanent annuity - at the end of each calendar
quarter, life annuity - at the end of each calendar month.

An essential condition of the contract,
providing for the transfer of movable property against payment of rent, is
condition stating the obligation of the annuity payer to provide security
fulfillment of its obligations or insure the risk in favor of the rent recipient
responsibility for non-performance or improper performance of these
obligations.

When transferring land for payment of rent
land plot or other immovable property, the recipient of the rent in security
the obligation of the annuity payer acquires the right of pledge over this property.

The obligation of the annuity recipient is
alienation to the payer of rent of property intended for payment of rent.
The property can be alienated for compensation, and then the relationship of the parties to the transfer
and payment, the rules for buying and selling are applied, and in the case when such
property is transferred free of charge, the rules on the donation contract insofar as
this does not contradict the essence of the treaty.

Risk of accidental death or accident
damage to property transferred free of charge against payment of permanent annuity,
is borne by the annuity payer. With a lifetime annuity, the payer bears the specified risk
regardless of the method of alienation of property. Obligation of the annuity payer
is the payment of annuity. By general rule the rent is paid in money, but
the contract of permanent annuity may provide for payment by
the provision of things, the performance of work or the provision of services corresponding to
the value of the monetary amount of the annuity. With lifelong dependent maintenance,
on the contrary, the main form of payment is the provision of housing needs,
food and clothing, and if the state of health of a citizen requires it, also
caring for him. Lifetime content may be replaced by payment of periodic
payments.

The annuity payer has the right to alienate, rent
as a pledge or otherwise encumber real estate, but in the contract
life-long dependent - only with the prior consent of the recipient
rent.

Termination. Contract
permanent annuity can be terminated by redemption by the annuity payer at
on their own initiative (Art.592 of the Civil Code of the Russian Federation) or at the request of the recipient of the rent (Art.
593).

The life annuity contract terminates from
the death of the annuity recipient (the last annuity recipient, if any
several). In the event of a material violation of the contract of life annuity
the payer of the annuity, the recipient of the annuity has the right to demand the redemption from the payer
annuity, and if this is a dependent life support contract, then return
real estate transferred against the payment of annuity or annuity redemption.

ChapterII... Lease contract
Lease concept

A lease is an agreement by virtue of
which the lessor undertakes to provide the tenant with the property for a payment in
temporary possession and use or temporary use (Article 606 of the Civil Code of the Russian Federation).

The construction of the lease agreement allows
thus, effectively include property in civil circulation.

The lease is:

- consensual;

- compensated;

- bilateral;

- mutual.

Subjects. Landlord
can only be the owner of the leased property or a person
authorized by the owner. Change of the owner of the leased property is not
is the basis for the termination of the contract (here the real "right
followings "). Any competent person can be a tenant. Law
provides that in certain types of lease agreements, lessors may
be only entrepreneurs.

The form. Lease contract
can be concluded orally. Simple writing is required if
the term of the contract concluded by citizens does not exceed one year. The contract must
be concluded in writing (regardless of the term), if at least one of
parties is entity... The lease of real estate is subject to
state registration under the conditions determined by the rules on the lease agreement
buildings and structures and on the lease agreement of the enterprise.

If the lease has a clause about
redemption of the leased property, the contract is concluded in the form provided for
for a contract of sale of such property.

Essential conditions and
content. An essential condition of the lease is the item
which are individually - certain non-consumable things.

The lease term is important, which
can be defined in several ways:

1)
Term
is defined in the contract - in this case, early termination of the contract is possible
or by agreement of the parties, or by the court on the terms of early termination of the contract
at the request of one of the parties.

2)
If
the lease term is not defined in the contract, the contract is considered concluded for
indefinite period - in this case, either party has the right at any time without
an explanation of the reasons for canceling the contract by notifying the other party about it
in one month, and when renting real estate - in three months.

3)
If
after the expiration of the period established by the parties, the lessee continues to use
rented property in the absence of objections from the lessor,
the contract is considered renewed on the same terms for an indefinite period.

4)
The law
lease limits may be set. Parties can set in
the contract period is less than or equal to the limit. If the parties have set a deadline,
exceeding the limit, the contract is considered concluded for a period equal to
limiting. An indefinite contract is terminated upon expiration
deadline.

An important condition of the contract is the condition of the rent.
The rent can be set by the parties in various forms: monetary,
in kind, by providing the tenant with certain services, etc. If
the rent is set in non-cash form, the contract is mixed. V
general rules on the lease there is no indication that in the absence of
the terms of the rent, the contract is not concluded, therefore,
rent in this case is collected at the rates usually applied when
lease of similar property (the same applies to the procedure, conditions and terms
payment).

Judicial practice has developed a provision according to which early
vacating the rented premises (until the termination in the prescribed manner
validity of the lease agreement) is not the basis for the termination of the obligation
the tenant to pay the rent.

In most cases, except for the right to use, the tenant
acquires the right to own the leased property - the real right, which is the basis
for real protection (including against the owner) and the right to follow; he,
in addition, it becomes the owner of the fruits and other objectified results
lawful use of the leased property.

Obligation of the landlord is the transfer
property to the tenant in a condition that complies with the terms of the contract and
the purpose of the property. The property is transferred with all accessories and
related documents. If you do not provide property and (or) it
accessories and documents, the lessee has the right to claim the property or
documents, or demand termination of the contract and compensation for losses caused by
delayed delivery. Judicial practice has established that the landlord,
who has not fulfilled the obligation to transfer the leased property to
the period established by the contract, has the right to demand from the tenant the payment of the lease
payments only after the actual transfer of the property to the latter.

Obligation of the tenant is timely
payment of the rent and return at the end of the lease agreement
property in the condition in which it was received, taking into account the normal
wear and tear or in a condition stipulated by the contract. If you do not return or
untimely return of property, the lessor has the right to demand the payment
rent for the time of delay and compensation for damages.

The rights and obligations of the parties to own, use and
disposal of leased property:

a) The lessee is obliged to use the leased property in
in accordance with the terms of the contract or the purpose of the property, otherwise
the lessor has the right to demand termination of the contract and compensation for damages.

b) The lessee has the right to dispose of the leased property
only with the consent of the landlord. The acts of the order include: provision
property in sublease (sublease) or a loan, transfer of rights and obligations for
agreement to another person (we transfer), the pledge of rental rights, their transfer to the charter
capital, etc. Except for re-lease liable to the landlord
the tenant remains.

c) The tenant can improve the leased
property. Separable improvements are the property of the tenant, upon completion
of the contract, he takes them with him. For production inseparable improvements
the consent of the landlord is required. If consent has been obtained, at the end of the contract
the tenant is reimbursed for the costs of the inseparable improvements. If consent
there was no landlord, the costs are non-refundable.

d) The lessee is obliged to maintain the leased property in
good condition. Unless otherwise provided by the contract, the lessee bears
the cost of maintaining the property and makes current repairs, and the lessor
produces at its own expense overhaul.

Termination. In addition to cases of cancellation of the contract concluded for
indefinite period, termination of the contract is possible:

1)
V
due to the expiration of the contract. In this case, the tenant, in a proper manner
fulfilling his duties, has, other things being equal, preferential
before other persons the right to conclude a lease agreement for a new term,
by notifying the landlord. This right does not arise if the landlord does not
intends to conclude a lease agreement with anyone for a new term. However, if
the lessor, within a year after the end of the contract, will conclude a lease with
by another person, the tenant has the right to demand the transfer of rights and obligations
under the concluded agreement and compensation for damages or only compensation for damages.

2)
By
at the request of one of the parties, the contract can be terminated in court
in case of a significant violation of one of the parties of its obligations (in particular, if
the tenant fails to pay rent more than two times in a row, or the landlord fails to
makes major repairs). In this case, the lessor has the right to demand
early termination of the contract only after sending the tenant a written
warnings.

3)
V
the contract may be terminated by the tenant in court even if
the leased property will be in an unusable condition according to
circumstances for which the lessee is not responsible (accidental death or
damage to property, if the risk of accidental loss remains with the owner).

Features of certain types of lease agreements.

1) Under a vehicle lease agreement, the lessor
provides the lessee with a vehicle for temporary possession for a fee and
use with the provision of its own services for its management and for its
technical operation (rental of a vehicle with a crew) or without
provision of these services (rental of a vehicle without a crew).

Form of contract- always simple written. The agreement is not
subject to state registration even if rented
vehicle classified as real estate by law (air and sea
court). Lease renewal clauses for an indefinite period and
the tenant's pre-emptive right to conclude a lease agreement for a new term
do not apply.

Obviously, when renting with a crew, the renter will be
largely by the nominal owner - the actual impact on the work and state
the vehicle will be provided by its crew (that is, in fact
lessor) This explains the peculiarities of the distribution of risks under the contract.
So, when renting with a crew, liability for damage caused by a transport
means, is borne by the owner-lessor, and in case of rental without crew -
tenant.

2) Under a lease agreement for a building or structure, the lessor
undertakes to transfer to the tenant for a fee in temporary possession and use, or
for temporary use a building or structure or non-residential premises in them with
granting the right to that part of the land plot, which is occupied by this
real estate and is necessary for its use.

The contract is concluded only in writing by
drawing up one document signed by the parties. Failure to comply with this
varieties of simple written form entails the invalidity of the contract.
The contract is subject to state registration, if only it is concluded for a period
not less than one year, in which case it is considered a prisoner from the moment
state registration.

The transfer of the rented property to the lessee includes
factual and formal moment. Actual transfer means providing
the tenant of a building or structure in possession and (or) use (admitting it to
rented premises). The formal point is to sign both
by the parties of the deed of transfer. Return of the rented property upon completion
the contract is carried out in the same manner (the tenant vacates the premises and
signing of the deed of transfer).

The contract must certainly provide for an agreed
the parties the amount of the rent, otherwise the contract will be considered not concluded.

The right to use that part of the land plot that
occupied by rented real estate and necessary for its use, transferred
the tenant of real estate automatically, even without special mention of it
in the terms of the lease agreement, and the established rent includes and
payment for the use of a land plot, unless it is separately agreed upon.

If the landlord is only the owner of the buildings and
structures, but not the land on which his property is located, rent
real estate, as a general rule, is allowed without the consent of the owner of the land.

The contract is concluded in writing by drawing up
one document signed by the parties. Failure to comply with this form entails invalidity
contract. The contract, regardless of its term, is subject to state
registration and is considered concluded from the moment of such registration.

Transfer of the enterprise to the lessee, in addition to the transfer of material
values ​​may include the assignment of the right of claim, the transfer of debt, etc.
The lessor's rights obtained by him on the basis of
licenses to engage in certain activities.

The enterprise as a property complex has a target
character, and this implies greater freedom of the owner in determining the composition
enterprises as property complex... Enterprise tenant rights
much broader than the rights of the lessee of other property. If the contract does not contain a direct
prohibition, the tenant can dispose of all
property that is part of the enterprise, with the exception of land and other
natural resources... A significant limitation of this right: actions of the tenant
cannot lead to a decrease in the value of the entire enterprise. On same conditions
the lessee has the right to carry out reconstruction, expansion, technical
re-equipment of the enterprise and, accordingly, is entitled to compensation
the cost of inseparable improvements to the rented property, regardless of
the landlord's permission to make such improvements.

The rules on the responsibility of the renter and the lessor to
the creditor, about the creditor's rights themselves under the obligations included in the
businesses are almost identical to the rules set for the sale
enterprise, except that the creditor has not been empowered to claim
recognition of the lease as invalid in whole or in part.

5)
By
under the financial lease (leasing) agreement, the lessor undertakes to purchase in
property the property specified by the lessee from the seller specified by him and
provide the tenant with this property for a fee in temporary possession and
use for business purposes.

The risk of accidental loss of the rented property passes to
the tenant from the moment the property is transferred to him, unless otherwise provided
agreement.

The tenant has the rights and responsibilities of the buyer
rented property, except for the obligation to pay the purchase price. V
in particular, the lessee has the right to directly present to the seller
requirements for the quality and completeness of property, etc.

ChapterIII... Contract
rolled

Rental agreement - an agreement by virtue of which the lessor,
renting out property as a permanent
business activity, undertakes to provide the tenant with movable
property for a fee for temporary possession and use.

Subjects. A rental agreement is a special type of rental agreement.
Special regulation is based on the special character of the lessor.
The landlord is an entrepreneur for whom renting out property
is the main way to generate entrepreneurial income. From
this, firstly, it follows that the lessor in the contract may be legal
persons registered as commercial organizations, and
individuals registered as an entrepreneur, including
united in a non-subject organization - a simple partnership.
The activities of such a landlord are professional and specialized.
character. Secondly, the property that is the subject of the rental agreement,
presented in the form of non-consumable movable things that have such
physical and consumer qualities that allow them to be transferred to
multiple use by different tenants (durable items).
Thirdly, such an agreement is of a short-term nature, since it satisfies
short-term needs of the tenant for the rented property.

Property provided under a contract
rental, used for consumer purposes, unless otherwise provided
contract or does not follow from the essence of obligations (clause 1 of article 626 of the Civil Code).

The rental agreement is distinguished by: firstly, special
lessor status; secondly, the special subject of the contract. By the lessor under the contract
rental can only be a commercial organization, professionally
engaged in the rental of property, that is, a legal entity for which the delivery
property for rent is a permanent goal of his business
activities. One-time lease transactions of movable property are not allowed
attributed to rental contracts.

Item. Subject
only movable property can serve as a rental agreement. Movable property,
which can be rented is very diverse: household electrical appliances,
clothing, musical instruments, cars, furniture, sports equipment
etc. Lease transactions (including short-term) with any real estate, even
carried out by professional commercial organizations for trade
real estate transactions, under no circumstances can be attributed to
rental contracts.

As a general rule, property
provided under a rental agreement must be used for consumer purposes.
However, at the same time, the law stipulates that otherwise may be provided for by an agreement
or flow from the essence of the obligation. This means that the subject of the contract
rental, subject to the appropriate conditions in the contract, can be used and
for business purposes (for example, the use of high-precision
measuring equipment for the implementation of temporary control over
production processes carried out by the tenant). The essence
obligations under which the lessee is an individual entrepreneur on a daily basis
renting scales to carry out their own trading activities,
predetermines the commercial purpose and nature of the use of the rental item.

Thus, along with household
(consumer) rental, the legislator also allows non-household rental.
As a result, it is also legitimate to conclude that, in addition to citizens who make up
the main contingent of tenants under a rental agreement, in this capacity also
legal entities and individual entrepreneurs can act.

The peculiarity of the rental agreement is concluded and
in that it belongs by law to the category of public contracts (clause 3 of article 626
GK). Therefore, a commercial organization - the lessor has no right to refuse
to any person from among those who applied to her in the conclusion of a rental agreement or
give any of them a preference for the conclusion of the contract.
The landlord must establish the same conditions for all tenants
rental agreement, including rent. Benefits for individuals
categories of tenants are allowed only in cases specified in the law and other
legal acts.

The form. Rental agreement
must be concluded in writing. Traditionally, in the field of regulation of relations on
property rentals use various forms defined by the lessors,
and standard (standard) forms of contracts. Therefore, often the rental agreement
possesses the signs of an accession agreement (article 428 of the Civil Code).

Essential conditions and
content. The term of the rental agreement cannot exceed one year (clause 1
Art. 627 GK). Moreover, according to paragraph 2 of Art. 627 GK to the rental agreement not
the rules for renewing the lease for an indefinite period apply and
the tenant's pre-emptive right to renew the lease.

Despite the fact that the rental agreement
is an urgent transaction, the lessee has the right to cancel the rental agreement in
any time by giving the lessor a written notice of his intention at least
in ten days (clause 3 of article 627). The lessee who has returned the property ahead of schedule,
have the right to demand from the lessor the return of the relevant part to him
received rent, calculating it from the day following the day of the actual
return of property (clause 2 of article 630 of the Civil Code). The landlord may require
early termination of the rental agreement only on the grounds provided for
to terminate a lease concluded for a specified period (Art.619
GK), taking into account the special rules on the rental agreement.

General duty of any landlord
provide the tenant with the property in a condition that meets the conditions
of the contract and the purpose of the property, supplemented in the contract of household rental next to
additional obligations arising from the public nature of this contract.

So, the lessor under a rental agreement
must, in the presence of the tenant, check the condition of the leased
property, familiarize the tenant with the rules of its operation or transfer
along with the property, instructions on the rules for its use (Article 628 of the Civil Code). If
during the term of the contract, the rented property will show
disadvantages fully or partially preventing further use
property, then the lessor is obliged within ten days from the date of application
the lessee about the shortcomings (if a shorter period is not established by the contract
rental) free of charge to eliminate the defects of the property on the spot or to make
replacement of this property with other similar property located in
proper condition. If the defects of the rented property appear
as a result of violation by the tenant of the rules for the operation and maintenance of property,
the tenant pays the landlord for the cost of repairing and transporting the property
(Article 629 of the Civil Code).

The lessor is responsible for
the implementation of major and current repairs of property leased on
rental agreement (clause 1 of article 631).

The tenant's obligation to pay rent
payments can only be made in a fixed amount paid periodically
or at a time (clause 1 of article 630 of the Civil Code). Other forms of rent used in
household rental cannot.

If the tenant is allowed to be in arrears
for rent, it is subject to collection in an indisputable manner on
the executive inscription of the notary (clause 3 of article 630 of the Civil Code). V the specified order
only the rent arrears are subject to collection. Requirements about
penalties, interest for delay in making rent payments, as well as any other
claims for damages addressed to the lessee are subject to
satisfaction only in court.

Tenant ownership and use rights
the subject of rental is significantly narrower than in a simple lease agreement. According to
the norm of clause 2 of Art. 631 CC sublease of property provided to the lessee
under a rental agreement, transferring to them their rights and obligations under this agreement
to another person, the provision of this property for free use, a pledge
rental rights and making them as a property contribution to economic
partnerships and societies or share contributions to production cooperatives are not
allowed.

In cases where the tenant on
the consumer rental contract is a citizen-consumer, his rights are protected
See also the norms of the Law of the Russian Federation "On Protection of Consumer Rights": on special guarantees
quality and safety of property (Articles 4, 7); about increased responsibility
lessor for damage caused by the defects of the rented
property, including the possibility of compensation for moral damage (Articles 13-15),
etc.

ChapterIV... LEASE CONTRACT
RESIDENTIAL SPACE

Under a commercial
renting a dwelling, one party is the owner of the dwelling, or
the person authorized by him (landlord) - undertakes to provide the other party
(to the tenant) dwelling for a fee to own and use for living
in it (clause 1 of article 671 of the Civil Code of the Russian Federation).

Renting a living space,
referred to in the legal literature as a commercial lease, settled
Chapter 35 of the Civil Code of the Russian Federation.

Living quarters that
used by their owners for the residence of citizens on a commercial basis
rent, form a housing stock for commercial use, which by virtue of Art.
19 ZhK RF can be formed not only in a private, but also in
state and municipal housing stock.

As a rule, there are
the following features of a commercial lease agreement. This contract can be
concluded with any person and, unlike a social employment contract, does not require
preliminary recognition of a citizen as poor and in need of housing
premises; the employer and members of his family are not considered as
co-tenants under the contract, unless otherwise provided by their agreement. Conclusion
commercial employment contract is not preceded by a binding social employment contract
the decision by the owner of the living quarters to provide a specific
living space to a particular person; as opposed to a social contract
the area of ​​the residential premises provided for commercial lease is determined by
agreement of the parties and is not standardized.

Other features
of the said contract consists in the fact that it, in contrast to social employment
is urgent. Commercial lease is for up to 5 years, including
number and when there is no indication of the term in the contract. It is also possible
short-term rent up to 1 year.

Commercial rent - always
paid contract, while socially rented dwellings for
the poor are provided free of charge.

The reason for the occurrence
relations on the use of commercial housing is not a complicated legal
composition, as in social employment, and a commercial employment contract, conclusion
which is carried out in accordance with the principle of freedom of contract.

Object (subject) of the contract
commercial lease according to the Civil Code - an isolated dwelling suitable for
permanent residence. Well-being is not an obligatory feature of the subject
commercial lease agreements. It can be an apartment, a residential building, a part of an apartment
or a residential building (i.e. a room). Connecting room or common property
an apartment building cannot be an object of a commercial lease agreement.

Rights and obligations
the lessor under a commercial lease agreement are generally similar to the rights and
obligations of the landlord under the social employment contract. However, otherwise
distribution of duties, unlike a social contract of employment, can
stipulated by the agreement of the parties by a specific contract of employment. In order to protect
the rights of employers as a weaker party to the agreement of the Civil Code of the Russian Federation provides for them
preemptive right to conclude a lease agreement for a residential premises for a new one
term. At the same time, certain powers were also granted to the lessor, who
may offer the employer to conclude an agreement on the same or different conditions.

Tenant under the contract
commercial lease has the right to move into the occupied premises with others
citizens. Unlike the social employment contract, the Civil Code of the Russian Federation does not name
occupying persons by family members of the employer. Move in with a tenant or to
any citizens who must be
specified in the commercial lease.

Moving in is possible with
subject to the requirements of the norm total area per each
resident; the exception is moving into the dwelling
minor children of any persons permanently residing in the dwelling.

Renting a living space
under a commercial lease agreement is allowed with the consent of the landlord and citizens,
permanently living with the tenant, and requires compliance with the condition of
the norm of the total area per person.

Unlike Housing
of the Civil Code of the Russian Federation does not establish requirements for the form of a sublease agreement, which
allows its conclusion in any form, incl. oral.

Legal regulation
residence of temporary residents in a residential area provided under a contract
commercial employment, similar to the relevant regulations contained in
ZhK RF. Unlike the Housing Code of the Russian Federation, the Civil Code provides for the only
the basis for changing the commercial lease contract by replacing the original
the employer by another adult who permanently resides with the employer.
Such replacement is possible at the request of the employer and citizens permanently residing
with the tenant, and with the consent of the landlord.

The employer's right to
commercial lease agreement for the conversion and reconstruction of residential premises
conditional only on obtaining the consent of the lessor. Purpose of value reorganization
does not have. However, taking into account the fact that citizens permanently residing with
the tenant, have equal rights with him to use the living quarters, for
the implementation of the reconstruction and reconstruction requires obtaining and their consent
too. The Civil Code of the Russian Federation and the Housing Code of the Russian Federation in the regulation of this competence of the employer do not allow
only terminological inconsistency, since the definition of reconstruction,
contained in the Urban Planning Code, allows to characterize the corresponding
work as belonging to the jurisdiction of the lessor, not the employer.

The employer's rights
short-term commercial lease agreement is significantly narrowed. As a rule, by
such an agreement, the tenant does not have the right to instill in the rented dwelling new
citizens, and persons who moved in with the employer do not have an equal right with him
use of the living quarters. The tenant is forbidden to move into the dwelling
temporary tenants and sub-tenants, and after the expiration of the contract
short-term employment, he does not have the right to demand the conclusion of a contract for a new term.
The short-term employer cannot be replaced by another
an employer from among citizens living with him.

In fact the employer
dwelling under a short-term lease agreement can use
the living quarters provided solely for the purpose of residence, and
has the right to rebuild it with the consent of the lessor.

Termination of an agreement. Foundations
termination of contracts of social and commercial employment largely coincide.
The commercial lease contract can be terminated both on the initiative of the employer,
and at the initiative of the landlord.

As well as under the contract
social hiring, an employer under a commercial lease agreement has the right, with the consent
citizens living with him at any time to terminate the concluded contract, but in
Unlike the Housing Civil Code, the employer is obliged to warn
the lessor's intention to terminate the contract 3 months in advance. This requirement is more common
associated with the protection of the lessor from losses in the form of unearned rental income
premises for rent.

At the request of the lessor
a commercial employment contract can also be terminated only in court
order and on an exhaustive list of reasons. One of the grounds for termination
commercial lease agreement at the request of the lessor - non-payment by the tenant
housing fees.

Another reason
termination of the contract at the request of the lessor is destruction or damage
residential premises by the tenant or other citizens, for whose actions he
responds, however, its regulation, in contrast to the contract of social employment
somewhat different.

Unauthorized reorganization
residential premises by the tenant may lead to termination of the contract
commercial employment only if it led to the destruction or
damage to living quarters.

At the request of the lessor
the commercial lease contract is terminated with the employer also if
the employer or other citizens for whose actions he is responsible use
living quarters not for their intended purpose, as well as systematically (i.e. repeatedly)
violate the rights and interests of neighbors.

Of the Civil Code of the Russian Federation in contrast to the LCD of the Russian Federation
proceeds from the fact that in this case, just a warning is not enough
the employer on the need to eliminate violations. The guilty employer may
be given a period (up to 1 year) to eliminate violations, as well as postponed
execution of the decision for the same period. If the identified violations continue,
the commercial lease contract is terminated. Another difference from LCD is
the fact that the termination of the commercial lease on this basis
allowed only at the request of the lessor, but not at the request
interested parties (neighbors, etc.).

The Civil Code of the Russian Federation provides for a number of
cases when the requirement to terminate the lease of residential premises in
judicially can be declared by both the tenant and the landlord. Among them
include the accident rate of housing, its other unsuitability for permanent residence.

Consequence of termination
the contract of commercial tenancy of residential premises is the eviction of the tenant and
all citizens living in a residential building at the time of termination of the contract, without
providing another living space.

ChapterV. Peculiarities
lease and lease agreements for residential premises with the participation of public law
entities

Public law
entities are recognized: the Russian Federation, constituent entities of the Russian Federation, state and municipal
formations that can participate in economic (property)
relationship. At the same time, the peculiarities of the status of such entities should be taken into account,
possessing public power, and in some cases being political
sovereigns who themselves determine the rule of law, including cases and limits
own participation in civil relations. On the other side,
it is necessary to fully respect the interests of the participants in property turnover as
legally equal owners (or other legal owners) of the property,
are in private law, and not in public law relations with each
friend. These circumstances determine the peculiarities of their participation in
lease and lease agreements:

- since the law
establishes the principle of special (target) legal capacity of unitary
enterprises (Article 49 of the Civil Code), the actions of the enterprise by order of the assigned
property of the owner should be determined primarily by the tasks of his
statutory activities and the purpose provided for the implementation
these tasks of the property. Therefore, in cases where long-term transmission
use of property directly involved in the production process
enterprise, leads to the impossibility of using the property of the owner for
intended purpose, the corresponding transactions are invalid according to
the grounds provided for by Art. 168 of the Civil Code, regardless of whether they were committed with
the consent of the owner (the body authorized by him) or independently by the enterprises;

State or
the municipality has the right to act as a lessor of its own property
in the event that it is not transferred to the legal entities established by them on the right
economic management or operational management or physical or
legal entities on a different proprietary right (in relation to, in particular, land
property). In this case, public entities exercise their powers
owners either directly through their bodies, or by giving special
assignment to other subjects of civil law according to the rules of paragraph 3 of Art. 125 CC.
The owner's powers in relation to federal property are realized
federal executive body - Ministry of Property of Russia (formerly
respectively - the State Property Committee of Russia, the Ministry of State Property of Russia).

In case of change
the owner of a residential building or apartment for a new owner is required
the terms of the tenancy agreements entered into by the previous owner. it
the rule applies to tenants of residential premises in houses
state and municipal housing stock, and in relation to
tenants in the homes of private owners. For example, in accordance with the Law on
housing policy (Article 9) in the transition of state or municipal
enterprises, institutions in a different form of ownership housing stock located in
their economic management or operational management (departmental fund),
must be transferred to their successors with the preservation of all housing rights of citizens
(including rights under the lease agreement).

CONCLUSION

Thus, currently contract
annuities continues to retain its significance as an additional and
an alternative source of funds, primarily for the maintenance of citizens.
The features of the legal structure of the annuity agreement do not allow us to talk about
benefitting from their property, since a prerequisite is
the transfer by the annuity recipient of his property into the ownership of the annuity payer.

Causes of occurrence lease agreement
can be different, ranging from the reluctance of the landlord to part with his
property, etc. In some countries, renting is a tradition that ensures
optimal use of land, forests and other lands. Rental agreement
is a separate type of lease agreement and is public.

Historically rental of living quarters
is a type of lease. As with renting, renting out a living space
- realization by the owner of the premises of his right to dispose of his property, and
the tenant's rights are an encumbrance on the dwelling that the legislator
does not even provide for the subsidiary application of the rules on the contract to it
lease.

Introduction …………………………………………………………………………………………… .1

Chapter I The concept of rent contracts, life contract
content

with
dependent ………………………………………………………………………………………… ..2

Chapter II Lease agreements ……………………………………………………………………… ..5

Chapter III Treaty
rolled products ………………………………………………………………………… 13

Chapter IV Residential lease contracts
premises …………………………………………… 18

Chapter V Features of lease and lease agreements with
participation of public law entities ……………………………………………………………………………… 23

BIBLIOGRAPHY

1.
Textbook "Civil Law" S.S
Alekseev, 2007.

2. Commentary to the Civil Code of the Russian Federation / ed. THOSE. Abova, A. Yu. Kabalkin,
2005.

3. “Hiring a living space” by E.S. Getman ("EZh-Lawyer", 2006,
№7)

5.JK RF (adopted on 22.12.2004)

Textbook "Civil Law" S.S. Alekseev, 2007.

Commentary to the Civil Code of the Russian Federation. /
ed. THOSE. Abova, A. Yu. Kabalkin.

“Renting a living space” by E.S. Hetman

("EZh - Lawyer",
2006, №7)

Commentary to the Civil Code of the Russian Federation / ed. THOSE. Abova, A. Yu.
Kabalkina, 2005.

Property transfer agreements

Possessing any property by right of ownership, a citizen is free to dispose of it at his own discretion. And besides the usual use - he can sell it, rent it out or draw up a donation agreement. However, there is another option for transferring property to another person, namely, transferring property for free use.

And if everything is more than clear about donation, then free use often raises questions about what exactly is meant by this. In our article, we will tell you what is the difference between gratuitous use and donation, what such a transfer is, and also tell you how to draw up a contract for the transfer of property for gratuitous use correctly.

The transfer of property for gratuitous use implies the transfer of the property described in the contract (be it real estate or other property) to another person for a certain period with the possibility of using the object of the contract. At the same time, no fee is charged for its use, and after the expiration of the document, the property must be returned in the same form, or otherwise provided for by the contract.

The transfer of property itself in this case will be a loan. If the transfer is not gratuitous, then the agreement will already be a lease, hire or loan agreement. Unlike donation, property is transferred temporarily, and not on a permanent basis with the transfer of property rights to another person.

Information!

A distinctive feature of the transfer of property for free use is that the borrower can use the object of the contract. Such documents are concluded not only for the purpose of making a profit, when companies cannot or consider it unprofitable to sell or donate an object, but also in many other life situations that are not related to business.

What can be transferred under this agreement?

According to the current legislation of the Russian Federation, the subject of the contract may be:

• Land plots, including isolated natural objects;
• Enterprises or property complexes;
• Buildings, houses and structures;
• Apartments or a certain share of residential property;
• Cars, motorcycles and other vehicles;
• Other property that is not consumable. That is, the use of which will not lead to the destruction of the very subject of the contract.

Exceptions can be those land plots or any other objects that, according to the law, cannot be transferred for use. In most cases, this applies to protected natural and architectural monuments.

Attention!

When transferring property, the lender is obliged to provide the subject of the contract with all the necessary details, accessories or other things that are necessary for its use. The transfer is made along with accompanying documents (technical passports, instructions, various warranty coupons and others Required documents). However, if the parties wish, it is possible to register the transfer in the agreement without accompanying papers.

Rights and obligations of the parties - what to look for?

Each of the parties to the contract, when transferring property for free use, has its own obligations, which you need to know and, if necessary, stipulate in detail, making adjustments to the contract.

Obligations of the lender

The lender is obliged to indicate all the shortcomings when drawing up the contract, because the provision of the object of the contract in proper condition (according to the conditions described in the document) is one of his main responsibilities. It is he who will be responsible for the shortcomings that he deliberately concealed from the borrower, especially if, due to the concealment of these shortcomings, losses were incurred or even harm was caused to someone else's health. In such cases, the borrower will have the right not only to terminate the contract, but also to demand compensation for damage. In addition, the lender has the right to eliminate the deficiencies himself free of charge, if there were no significant losses during use.

It is especially worth remembering that it is the lender who will be responsible for the fact that the object of the contract has caused harm to a third party. In such situations, the only right thing to do is go to court to prove intent or gross negligence of the borrower. That is, the fact that the latter did not fulfill the terms of the contract and used the property either deliberately to cause harm, or not for its intended purpose.

Obligations of the Borrower

The borrower, in turn, must use the transferred property in strict accordance with the contract. If specific conditions of use are not attached, then the property is usually used for its intended purpose. In addition, the task of preserving the object of the contract and keeping it in good condition also becomes the direct responsibility of the borrower. The maintenance includes the regular implementation of the required procedures (in the case of real estate, this can be a major overhaul), as well as the full payment of all costs of such a plan. However, regarding the payment of maintenance, the parties may indicate other conditions in the contract as a separate clause. For example, for the lender to make the payments himself.

The borrower has the right to make improvements. Moreover, if they are separable, they remain his property. If improvements are inseparable (for example, repairs in an apartment), then when they are made without the knowledge of the lender, they will be the property of the actual owner (lender). In this case, improvements will not be subject to compensation. For this reason, it is strongly recommended to discuss possible improvements with the property owner, indicating the likely details and, which is also desirable, entering them into the contract.

For how long is it issued and how is it completed?

Under the loan agreement, the standard provides for the establishment of a certain period for which the property is provided. However, the parties can conclude an agreement on the transfer of property for free use without specifying the date of return, that is, the document will be drawn up for an indefinite period. Termination of the contract can be made by agreement of the parties in this case, if there were no violations of the terms of the contract.

When the term set in the contract comes to an end, both the lender and the borrower can renew the contract on the same terms. To do this, the borrower simply needs to continue using the property under the same conditions, making sure that the lender agrees to the extension.

Termination of the contract unilaterally can be made if:

• The lender did not transfer the object of the contract (including partial transfer, that is, without the agreed necessary things for the use of the property);
• The lender concealed the fact that the property had defects, especially if they interfere with the use of the object;
• The lender has not notified the borrower that other persons are entitled to this property;
• The borrower uses the property not according to the terms of the contract or not for its intended purpose (if the terms of use were not in the document);
• The borrower did not maintain the property received for use in proper form and did not engage in the maintenance necessary for the object of the contract;
• The borrower transferred the property to a third party without the lender's consent.

Information!

It is also noteworthy that in the event of the death of the borrower, the contract for gratuitous use is terminated. The same applies to the liquidation of a legal entity that receives an object for use. If the lender dies, then the contract continues to operate, the rights and obligations are retained, they are simply transferred to the lender's heir. The same applies to legal entities that have been liquidated; in this case, the rights will be transferred to the legal successor of the organization.

How to draw up a contract for gratuitous transfer of property?

A properly drafted donation contract for use usually consists of eight points:

• Name, contact details and other personal data of each of the parties to the contract. For legal entities, these will be full (without abbreviations) names of enterprises, as well as data of representatives (including their positions, as well as indicating powers of attorney that give the right to conclude an agreement);
• Detailed description of the property that will be the subject of the contract... All the necessary data must be entered, they must be sufficient to identify it. In addition to the description, it is necessary to indicate the existing shortcomings, equipment and, which is also desirable, drawn up inspection reports;
• Purposes and possible ways of using this property by the borrower, with clarifications and fairly clear wording;
• A listing of the obligations of each of the parties that they will have to comply with according to the contract being drawn up. In addition to the general requirements for each of the parties, it should be indicated in what state the borrower should both receive the object and return it. The period for which the property is provided is also prescribed in this paragraph;
• Information about the value of the object of the contract, which must be documented. As evidence can be: receipts of purchase, paper from the appraisal office, as well as various certificates of value;
• Description of the costs that will need to be borne by the borrower to maintain the proper condition of the property. Not only the possible costs themselves should be indicated, but also a list of actions that will need to be performed (payment utilities, purchase of spare parts or Supplies) in the allotted time;
• Responsibility borne by both parties to the concluded agreement. This paragraph is devoted for the most part to the risks that may occur. That is, cases of damage to both property and third parties, as well as the possibility of early termination of the contract, along with a description of this process;
• Some additional conditions, which were agreed by the parties in advance.

Agreements for the transfer of property for use imply a temporary transfer of the rights of use and (or) possession from the owner to another person or persons. Legislation knows three main types of contracts of the corresponding category: lease, lease and loan.

Lease contract

Lease contract is one of the most common contracts in civil law.

In accordance with paragraph 1 of Art. 606 of the Civil Code of the Russian Federation under a lease (property lease) agreement, the lessor (landlord) undertakes to provide the tenant (tenant) property for a fee for temporary possession and use or for temporary use.

The lease agreement is reimbursable, consensual, bilateral.

Parties to the contract - landlord and tenant. As a general rule, both the lessor and the lessee can be any subjects of civil law, both individuals and legal entities, and among the latter - commercial and non-profit organizations, as well as the state, national-state, administrative-territorial and municipal formations ... Only in some types of leases should special entities act as the lessor or lessee. The lessor is the owner of the property or persons entitled to it. Subjects of the nature of economic management can transfer immovable property, and subjects of operational law - movable and immovable property - for rent with the consent of the owner. The disposal of the property of the institution is carried out by the owner of the property of the institution. Renting out property is one of the ways of exercising the ownership right belonging to the lessor, namely, the power to dispose of the property, which is part of it. As for the owners of other property rights, any person who is not the owner of the respective property should have the authority to hand over this property.

An essential condition the lease is the subject of the contract. As subject of the contract leases can be:

• - land;
• - other isolated natural objects;
• - enterprises;
• - other property complexes;
• - buildings, structures;
• - equipment, vehicles;
• - other things that do not lose their natural properties in the process of their use (non-consumable things).

Thus, 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.

In accordance with para. 1 tbsp. 606 of the Civil Code of the Russian Federation 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. According to paragraph 3 of Art. 607 of the Civil Code of the Russian Federation, the contract must contain data that allow to determine definitely the property to be transferred to the lessee. If such data is not specified, the condition on the object is considered inconsistent, and the contract is not concluded.

Based on these norms, it can be concluded that the subject of the lease is a certain property transferred to the lessee.

Scientific discussion

In the legal literature, there is also an opinion that the subject of a lease agreement is property determined by individual characteristics. At the same time, there is another position in the literature, according to which a lease agreement has a complex subject, which includes both the actions of the obliged parties, including the transfer and acceptance of property (an object of the first kind), and the property itself (an object of the second kind). A similar opinion is expressed by M.I.Braginsky and V.V. Vitryansky.

Taking into account the above, when agreeing on the subject of lease, it is recommended to indicate in the contract:

The rights and obligations of the parties provided for in Art. 606 of the Civil Code of the Russian Federation; - data that make it possible to definitely establish the property (leased object) in respect of which these rights and obligations are established (Article 607 of the Civil Code of the Russian Federation).

It should also be borne in mind that in accordance with Art. 608 of the Civil Code of the Russian Federation, the right to lease property belongs to its owner or a person authorized by the owner. However, Art. 608 of the Civil Code of the Russian Federation does not prohibit the conclusion of a lease agreement for a person who has not yet acquired ownership of the thing being leased.

There is a point of view that for the lease of movable property the amount of the rent is not an essential condition. 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 with a fund of similar property under comparable circumstances (see 1 article 614 of the Civil Code of the Russian Federation).

Arbitrage practice

However, if the agreement states that the rent for the use of the property is zero, this agreement is not a lease agreement, since it does not provide for compensation for the possession and use of the property, which, in accordance with Art. 606 of the Civil Code of the Russian Federation is one of the signs of lease relations. Since the tenant in this case is exempted from paying rent, the specified agreement in accordance with paragraph 1 of Art. 689 of the Civil Code of the Russian Federation can be recognized by the court as an agreement of gratuitous use (loan). In this case, the owner of the property is not entitled to be required to pay the rent from the user (see resolution of the Federal Tax Service of the Ural District of March 10, 2009 No. F09-1021 / 09-C6, resolution of the Federal Antimonopoly Service of the Ural District of February 7, 2006 No. F09-99 / 06-C6 ). Also, he will have no reason to demand that the contract be recognized as not concluded and the property returned due to the lack of state registration, since the legislation does not provide for the registration of the contract for gratuitous use (see the resolution of the FLS of the Ural District of 09/19/2005 Л ° Ф09-2996 / 05-СЗ).

If in the lease agreement and the act of acceptance and transfer, the parties did not indicate the data allowing to determine the leased object, the agreement will be considered non-concluded (clause 3 of article 607 of the Civil Code of the Russian Federation). In this case, the tenant in accordance with Art. 621 of the Civil Code of the Russian Federation will not be able to exercise the preemptive right to lease this property for a new period and demand the transfer of rights and obligations to itself but an agreement concluded with a third party.

Arbitrage practice

However, in accordance with clause 15 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 17, 2011 No. 73 "On certain issues of the practice of applying the rules of the Civil Code of the Russian Federation on a lease agreement", an agreement in which the property transferred for lease is not individualized (i.e. the condition on the object and subject of the contract) cannot be recognized as not concluded if it was actually performed by the parties. The actual performance of the contract may be evidenced, in particular, by the transfer of property to the lessee in the absence of any objections on his part.

If the parties have not indicated in the contract the individualizing characteristics of the property that is transferred to the lessee, then in accordance with paragraph 3 of Art. 607 of the Civil Code of the Russian Federation, the condition on the object is considered inconsistent, and the contract is not concluded, i.e. does not give rise to any rights and obligations for the parties (definition of the Supreme Arbitration Court of the Russian Federation of November 16, 2007 No. 12798/07, resolution of the FAS of the Ural District of February 1, 2010 No. F09-65 / 10-C6 in case No. A76-7191 / 2009-15- 271).

The lessor in this situation can reclaim the property from the lessee by filing a claim for reclaiming the property from someone else's illegal possession on the basis of Art. 301 of the Civil Code of the Russian Federation.

In addition, the lessor has the right to demand the return of property in accordance with the rules on unjust enrichment (Article 1102 of the Civil Code of the Russian Federation).

At the same time, it must be borne in mind that the lessor cannot base claims for the return of property under an unconcluded agreement on the norms of Art. 622 of the Civil Code of the Russian Federation.

Arbitrage practice

If the parties did not indicate the individualizing signs of the animal (inventory number, color, nickname, tag, stamp) in the lease agreement and in the act of acceptance and transfer, the condition on the object is considered inconsistent due to the lack of data that would definitely identify the leased property. In such a case, the contract is not concluded (clause 3 of Art. 607 of the Civil Code of the Russian Federation) and the tenant does not have ownership of the fruits, products and income from the use of the animal (see the resolution of the Eighteenth Arbitration Court of Appeal dated 20.01.2010 No. 18A11-10178 / 2009 , left unchanged by the Decree of the Federal Antimonopoly Service of the Urals District dated 21.04.2010 No. F09-2663 / 10-SZ).

In paragraph 1 of Art. 607 of the Civil Code of the Russian Federation explicitly states that only non-consumable things can be leased. These are things that do not lose their natural properties in the process of their use - do not lose their qualitative and quantitative characteristics and do not get destroyed. These items can be returned to the lessor but at the end of the lease in the same condition in which they were handed over, subject to normal wear and tear. Items such as food, animal feed, etc. lose their natural properties in the process of use, therefore they cannot be leased (see resolution of the Federal Antimonopoly Service of the Volgo-Vyatka District of August 26, 2002 No. A28-2588 / 02-133 / 17, resolution of the Federal Antimonopoly Service of the North Caucasus District of May 22, 2008 No. F08-2568 / 2008).

In order to establish whether a thing is consumed or not, it is necessary to determine its functional purpose. It can be established based on the name of the kind of things to which the given thing belongs.

The name of a thing allows you to determine the main purposes of its application based on generally accepted concepts, as well as to identify documents related to it that regulate the purpose and scope of its use (operating instructions, technical description, etc.), and standards (GOST, technical regulations, etc.) .NS.).

Example

Name " lathe"indicates the functional purpose of the thing - a means for cutting materials, and the name" birch firewood "- for the functional purpose - fuel. , from which it is made (wood), can also be used as a building material or fuel, that is, consumable things. On the contrary, the name "beef cattle" indicates the useful properties of the animal - consumption in the form of meat products, which excludes the possibility of leasing.

Consequently, in order to establish whether a thing is unused and whether it can be leased, it is necessary to determine its name, which reveals the functional purpose of the thing.

According to paragraph 3 of Art. 607 of the Civil Code of the Russian Federation, the lease agreement must contain data that make it possible to definitely establish the property to be transferred to the lessee as a lease object. Within the meaning of this provision, the property leased out must be individualized.

Arbitrage practice

The courts indicate that a thing is individually defined (individualized) if it is separated from other things, defined by generic characteristics, according to its inherent characteristics (see judicial practice, in which the courts draw a similar conclusion when considering disputes about the reclamation of property from someone else's illegal possession ( see the ruling of the Supreme Arbitration Court of the Russian Federation of 03.06.2010 No. VAS-7254/10, resolution of the Federal Antimonopoly Service of the North Caucasus District of 01.04.2010 in case No. A53-10179 / 2009, resolution of the FAS of the Volgo-Vyatka District of 12.09.2007 in case No. A82 -13666 / 2006-35).

In order to separate a thing from others, defined by generic characteristics, it is first necessary to identify these characteristics (i.e., the kind of things united by a common name and purpose), which is carried out by establishing the name of the thing. Only then can the individual attributes of a thing be determined.

On the basis of the foregoing, it can be concluded that the object of lease may not be any property, but only a thing that is both non-consumable and individually determined.

Therefore, in order to properly define the lease object in the contract, it is necessary:

• - indicate the name of the rental object (name of the kind of things to which it belongs);
• - describe the individual characteristics of the rental object.

It is important for the parties to know that they can conclude a lease not only for the whole thing, but also for part of it.

It should be borne in mind that, having indicated the possibility of leasing part of the thing, the Supreme Arbitration Court of the Russian Federation referred, inter alia, to Art. 606 of the Civil Code of the Russian Federation, according to which a thing can only be transferred for use without transferring into possession (paragraph 2, clause 9 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of November 17, 2011 No. 73). Thus, it seems that the lessee of a part of the thing will have only the right to use the thing, but not possession of it. For this reason, the lessee of a part of the thing cannot use the proprietary methods of protection (Article 305 of the Civil Code of the Russian Federation) provided to the legal owner.

In order to correctly agree on the name of the leased object, you need to know what is the name that reflects the functional purpose of the thing, and how to define it correctly.

In the economic sense, a thing as a result of activity, presented in material form and intended for further use for economic and other purposes, falls under the definition of a product (Article 2 of the Federal Law "On Technical Regulation"). Products are subdivided into classes, subclasses, groups, subgroups and types (see All-Russian product classifier OK 005-93). For example: class - "products of construction, road and municipal engineering", subclass - "machines for earthmoving and reclamation work", group - "single-bucket excavators with a bucket with a capacity of 0.25 to 2.5 cubic meters and multi-bucket", subgroup - "one-bucket excavator with a 1 cubic meter bucket", type - "one-bucket excavator with a 1 cubic meter bucket, on a caterpillar track". The main division of products in the all-Russian classification ends with types.

Thus, to determine the name of the leased object in the contract, it is sufficient to indicate the type of product.

If movable things that are not named in the All-Russian classifier of products OK 005-93 are involved in the property turnover, the name of the leased object must be determined based on the documents attached to the object - technical passports, instructions, warranty documentation, certificates of conformity, etc.

Some products are subdivided not only into types, but also into varieties. This is a narrower division, indicating a number of particular features, characteristics of certain types of movable things. These characteristics include types, models, brands of products (OK 005-93).

Instead of describing specific characteristics of the property, the parties may refer to the technical documentation in which these characteristics are listed. So, if there is a reference in the agreement to the technical passport containing the individualizing characteristics of the property, the condition on the subject of the lease agreement can be recognized as agreed.

Lease term is not an essential condition. In accordance with Art. 610 of the Civil Code of the Russian Federation, the lease agreement is concluded for a period specified in the agreement. If the lease term is not specified in the agreement, the lease agreement is considered concluded for an indefinite period. In this case, each of the parties has the right to withdraw from the contract at any time, notifying the other party about this one month in advance, and in case of renting real estate, three months in advance. The law may establish the maximum (limiting) terms of the contract for certain types of lease, as well as for the lease of certain types of property (for example, for land plots, forest areas).

The term of the lease determines the period of time during which the lessee has the right to own and use or use the leased object (Article 610 of the Civil Code of the Russian Federation). It is for this period of time that the tenant pays the rent (clause 1 of article 614 of the Civil Code of the Russian Federation).

By definition of Art. 606 of the Civil Code of the Russian Federation, the lease agreement does not imply a permanent, but temporary possession and use or use of the leased object. Therefore, it is important for the parties to determine the period of time for which the object is leased.

The beginning of the lease term determines the moment at which the property should be provided to the lessee for temporary possession and (or) use.

The end of the lease term determines the moment of returning the property from the temporary possession and use of the lessee.

Simultaneously with the end of the lease, the contract may also expire, unless it establishes a separate period for its validity or does not provide for obligations that are due after the return of the property (and. 3, Art. 425 of the Civil Code of the Russian Federation).

The lease term must be established according to the rules of Art. 190-194 of the Civil Code of the Russian Federation, according to which the start and end dates of the lease can be determined:

• - calendar date;
• - expiration of a period of time determined by years, months, days, days or hours;
• - an indication of an event that must inevitably occur.

In this case, the lease agreement is considered concluded, since the lease term is not an essential condition of the lease agreement (Article 606 of the Civil Code of the Russian Federation). If there is no lease term in the agreement, it will be equal to the term of the agreement. If, at the same time, the term of the agreement is not agreed, the agreement will be considered concluded for an indefinite period (clause 2 of article 610 of the Civil Code of the Russian Federation). This means that either party can withdraw from the lease at any time by giving the other party one month in advance.

If the transfer of the object to lease is not caused by any events or circumstances and the parties know in advance exact dates the beginning and end of the use of the property, the beginning and end of the lease is recommended to be coordinated by indicating the calendar dates.

In practice, the lease term is often determined by indicating a period of time limited by calendar dates (for example, "from" 01 "January 2010 to" 31 "March 2011" or "from" 01 "January 2010 to" 15 "February 2010 "). The agreement of the term in this way affects the determination of the length of the lease term, including the calculation of the rent.

A lease term clause, formulated using the "before" or "by" preposition, may raise the question: is the lease expiration date included in the lease term itself?

Pretext before in one of its meanings "is used when indicating the time limit of action"; pretext on with accusative in one of the meanings "corresponds in meaning to the preposition before".

To avoid controversy about including the end date in the lease term, we recommend that you use the adverb "inclusive" after the end date. Specifying this word when determining the end of the lease term will clearly indicate that the end date is included in the lease term.

With this method of agreement, it is necessary to determine the period itself and its beginning. The beginning of the period can be a specific calendar date (Article 191 of the Civil Code of the Russian Federation). The beginning of the lease term can also be determined by an event agreed by the parties. Most often, the moment of the conclusion of the contract or the moment of transfer of the property to the lessee under the act is indicated as such. Also, the start date of the lease can be determined by the date of signing the act on the readiness of the leased property (for example, a drilling machine) for work (see resolution of the Federal Antimonopoly Service of the Urals District dated 12.03.2009 No. F09-469 / 09-C4).

According to Art. 191 of the Civil Code of the Russian Federation, the lease term, when defined as a period of time, begins to flow not from the calendar date specified in the contract, or from the moment the event occurs, but the next day after this date or event.

Example

Accordingly, if the tenant needs to start using the property, for example, from 1 June, 31 May should be defined as the start date of the lease in the contract. The parties can set the deadline for the transfer on May 31, so that the tenant can fully use the property from 1 day. In this case, the transfer of property must be made before the end of the day on May 31st. If the parties to the contract are legal entities, then according to the rules of par. 2 p. 1 art. 194 of the Civil Code of the Russian Federation, the expiration of the transfer of property will occur at the hour when the corresponding operations are terminated in the organization that is the tenant.

In order to avoid difficulties in determining the specified terms, the parties may establish in the agreement the beginning of the lease term as the date of transfer of the property under the act.

The end of the lease term, determined by the period of time, is calculated according to the rules of Art. 192 of the Civil Code of the Russian Federation. Thus, a term calculated in years expires in the corresponding month and day of the last year of the term. For example, if the start of the lease is on a calendar date of June 2, 2015, then a lease of one year would begin on June 3, 2015 and end on June 2, 2016.

The use of property is sometimes advisable only under certain circumstances or after the onset of an event (for example, the beginning of ice drift or sowing). The lease term can be agreed by indicating such an event, which must be inevitable (Article 190 of the Civil Code of the Russian Federation). This event obviously occurs regardless of the will of any party or third parties, and the date of its beginning is unknown in advance.

The lease term cannot be determined by indicating an event if its occurrence depends on the actions and will of any of the parties, or otherwise does not have the property of inevitability. For example, the court does not recognize as inevitable the commission of any action by a party to the contract or by a third phony (clause 4 information letter Of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 66 dated January 11, 2002).

In this case, it will be considered that the parties have not determined the lease term, and the lease term will be equal to the term of the contract. If, however, there is no validity period of the contract, then the contract will be considered concluded for an indefinite period. This means that the landlord can at any time withdraw from the contract and demand the return of the property from the tenant, warning him about this within the time limits provided for and. 2 tbsp. 610 of the Civil Code of the Russian Federation.

The term of the lease agreement is the period of time during which the terms of the agreement are in effect and the obligations of the parties established by it are fulfilled (Article 425 of the Civil Code of the Russian Federation).

The beginning of the term of the lease agreement by virtue of the law is determined by the moment of the conclusion of the agreement. From this moment, the parties have obligations and the terms of the contract begin to operate. The end of the lease term can be determined at the discretion of the parties.

According to n. 2 tbsp. 609 of the Civil Code of the Russian Federation, a lease agreement for real estate is subject to state registration, unless otherwise provided by law. In particular, it is necessary to register a lease agreement for buildings or structures for a period of at least a year (clause 2 of article 651 of the Civil Code of the Russian Federation). Such an agreement is considered concluded from the moment of registration (clause 3 of article 433 of the Civil Code of the Russian Federation). At the same time, Part 8 of Art. 2 of the Federal Law of 30.12.2012 No. 302-FZ established that the rules of Art. 609, 651 of the Civil Code of the Russian Federation are not applicable to contracts concluded after the date of entry into force of the specified Law (after March 1, 2013). Subsequently, Art. 3 of Federal Law No. 21-FZ dated 04.03.2013, these changes were canceled.

When agreeing on this condition, the parties should:

• - to determine the term of the contract according to the rules of Art. 190-194 of the Civil Code of the Russian Federation;
• - provide for the application of the terms of the lease agreement to relations that arose before its conclusion (if necessary);
• - indicate whether the tenant is granted a pre-emptive right to conclude a contract for a new term;
• - to establish whether the lease agreement will be extended for a new term with the same tenant.

If the term of the lease agreement is not determined, then the agreement continues to operate until the moment of completion of the fulfillment by the parties of obligations established in it (paragraph 2, clause 3, article 425 of the Civil Code of the Russian Federation). For a lease agreement, such a moment is the return of the property to the lessor at the end of a certain lease term or the lessee paying the rent for the entire lease term, if, according to the terms of the agreement, it is paid at the end of the use of the leased object. If, at the same time, the lease term is not specified in the agreement, the agreement will be considered concluded for an indefinite period (Article 610 of the Civil Code of the Russian Federation).

Early termination of the contract allowed both at the request of the lessor and the lessee in the event of a significant violation of the terms of the contract by the other party (Articles 619, 620 of the Civil Code of the Russian Federation). So, at the request of the lessor, the lease agreement can be terminated early by the court in cases where the lessee:

• - uses the property with a significant violation of the terms of the contract or the purpose of the property, or with repeated violations;
• - significantly degrades the property;
• - more than two times in a row after the expiration of the payment term established by the contract does not pay rent, etc.

In accordance with Art. 621 of the Civil Code of the Russian Federation, a tenant who has properly performed his duties, upon the expiration of the term of the contract, has, all other things being equal, the preferential right over other persons to conclude a lease agreement for a new term. The lessee is obliged to notify the lessor in writing about 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 of the agreement.

When concluding a lease for a new term, the terms of the contract can be changed by agreement of the parties.

If the lessor refuses 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 has 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 contract and compensation for losses, caused by the refusal to renew the lease with him, or only compensation for such losses.

The lessee, who has properly performed his obligations under the contract, has a preferential right over third parties to conclude a lease agreement for a new term (clause 1 of article 621 of the Civil Code of the Russian Federation), unless otherwise provided by the lease agreement.

This right applies only to the lease of the same object.

The lessee can exercise the preemptive right only if the following conditions are present simultaneously:

• - if he notified the lessor of his desire to use the preemptive right to conclude a contract for a new term (see the resolution of the FAS of the Volgo-Vyatka District of March 30, 2009 in case No. A79-5631 / 2008);
• - if he fulfilled his obligations under the contract in good faith. Otherwise, the lessee loses the preemptive right to conclude a contract for a new term, while the materiality of the violation does not affect the decision on his good faith. Unfair performance of obligations under the contract, in which the lessee is deprived of the preemptive right to conclude the contract, is, in particular, violation of the term for payment of the rent;
• - if the contract has not been renewed for an indefinite period. Otherwise, the court may recognize that the tenant loses the pre-emptive right to conclude a contract for a new term. At the same time, there is the opposite jurisprudence, according to which the tenant is not deprived of the preemptive right in the event of the renewal of the lease agreement for an indefinite period;
• - if there is no agreement between the parties to terminate the contract after the lessee sends the lessor an application to conclude a contract for a new term.

The existence of a pre-emptive right does not mean that the lessee can demand from the lessor to conclude a new contract on the same terms. In this case, the landlord is not bound by the terms of the previous contract. He has the right to offer the tenant and third parties other conditions for renting property or refuse to lease the property. Preemptive right means only the right of the lessee to conclude a lease agreement with the lessor in respect of the same property as a matter of priority.

In this case, the consequences of a violation by the lessor of the tenant's preemptive right can be applied by the court only if an agreement has been concluded between the lessor and a third party. However, there is another position in judicial practice, according to which the lessee, when filing a claim for the protection of the preemptive right, is sufficient to prove the lessor's intention to conclude a lease agreement for the same property with a third party.

The parties may agree on a condition to limit the tenant's preemptive right. This allows the landlord to easily enter into an agreement with third parties.

Form of contract lease depends on the duration of the contract and the subject of the contract. A lease agreement for a building, structure for a period of more than a year, and if at least one of the parties to the agreement is a legal entity, regardless of the term, must be concluded in writing. A lease agreement for real estate is subject to state registration, unless otherwise provided by law (Article 609 of the Civil Code of the Russian Federation).

The lessor is obliged:

• - provide the tenant with the property in a condition that complies with the terms of the lease agreement and the purpose of the property, as well as with accessories and necessary documents;
• - provide the documents necessary for the use of the property. If the lessor has transferred the property to the lessee without documents, the absence of which precludes the operation of the leased object, the rent is not subject to collection;
• - to carry out, at their own expense, major repairs of the leased property.

If the property is not presented within the period specified in the lease agreement, and if such a period is not specified in the agreement, within a reasonable time, the lessee may demand from the lessor the transfer of this property, as well as compensation for damages caused, or demand termination of the contract and compensation for losses (p. . 3 article 611 of the Civil Code of the Russian Federation).

The lessor has the right:

• - require the tenant to pay the rent ahead of schedule within the time period set by the lessor, but not more than two consecutive periods in the event of a significant violation by the tenant of the term for making the rent (clause 5 of article 614 of the Civil Code of the Russian Federation);
• - demand the termination of the contract and compensation for losses if the lessee uses the property not in accordance with the terms of the lease agreement or the purpose of the property (clause 3 of article 615 of the Civil Code of the Russian Federation);
• - demand the payment of the rent for the entire period of delay, if the tenant did not return the leased property or did not return it on time. In the event that the specified payment does not cover the losses caused to the lessor, he may demand their compensation (paragraph 2 of article 622 of the Civil Code of the Russian Federation).

The tenant is obliged:

• - pay the rent on time;
• - use the leased property in accordance with the terms of the lease agreement, and if such conditions are not specified in the agreement, in accordance with the purpose of the property;
• - maintain the property in good condition, make current repairs at its own expense and bear the cost of maintaining the property, unless otherwise provided by law or by a lease agreement;
• - upon termination of the lease, return the property to the lessor in the condition in which he received it, taking into account normal wear and tear or in the condition stipulated by the contract.

In case of transfer of property with defects the tenant has the right of your choice:

• - demand from the lessor either gratuitous elimination of defects in the property, or a commensurate reduction in rent, or reimbursement of their expenses for the elimination of defects in the property;
• - directly withhold the amount of expenses incurred by him to eliminate these deficiencies from the rent, having previously notified the lessor about this;
• - demand early termination of the contract. The lessor, notified of the requirements of the lessee or of the intention to eliminate the deficiencies of the property at the expense of the lessor, may immediately replace the property provided to the lessee with other similar property in good condition, or eliminate the deficiencies of the property free of charge.

If the satisfaction of the tenant's claims or withholding the costs of eliminating defects from the rent does not cover the losses caused to the tenant, he has the right to demand compensation for the uncovered part of the losses (Article 612 of the Civil Code of the Russian Federation).

Violation by the lessor of the obligation to carry out major repairs gives the lessee the right, at his choice:

• - make major repairs as stipulated by the contract or caused by an urgent need, and collect the cost of repairs from the lessor or set them off against the rent;
• - demand a corresponding reduction in rent;
• - demand termination of the contract and compensation for losses (clause 1 of article 616 of the Civil Code of the Russian Federation).

The parties can agree conditions for the use of leased property (Clause 1 of Art. 615 of the Civil Code of the Russian Federation). Such conditions may differ from those that follow from the purpose of the property.

In this case, the "contractual" terms of use should exclude the loss of the leased property of its useful properties, which follow from its functional purpose. That is, such conditions cannot be any and must take into account the main purpose of the property, the requirements of operational documents and mandatory standards in terms of the safety and security of the leased object.

When agreeing on the terms of use of the leased object, it is necessary to agree on:

• - the purpose of using the leased object;
• - ways of using the leased object;
• - the volume of use of the leased object;
• - modes of extracting useful properties from the rental object.

If the tenant violates the conditions for using the property, then the lessor has the right to demand termination of the contract and compensation for losses (clause 3 of article 615 of the Civil Code of the Russian Federation). In addition, he has the right to file a claim against the tenant for the elimination of violations. Such a claim will be qualified by the court as a contractual requirement, and not as a claim to eliminate violations of property rights not related to deprivation of ownership on the basis of Art. 304 of the Civil Code of the Russian Federation.

The purpose of using the leased object is this is a condition of the contract that determines the final result that the lessee intends to obtain when extracting useful properties from the leased property.

As a rule, the rented property is used for the purposes corresponding to its main (functional) purpose. Such an appointment follows from the name of the property, operational documents, technical conditions and mandatory standards.

If the tenant uses the property not in accordance with its purpose or the terms of the contract, the lessor, in accordance with paragraph 3 of Art. 615 of the Civil Code of the Russian Federation has the right to demand termination of the contract and compensation for losses.

The indication in the contract of the purpose of using the leased object entails the obligation of the lessor to transfer it in a condition suitable for such use (clause 1 of article 611 of the Civil Code of the Russian Federation). In case of failure to fulfill this obligation, the court may recognize that the property was transferred with defects that completely impede its use.

The way to use the rental object is this is a condition that determines technologies, methods and techniques for extracting useful properties from a rental object.

As a rule, the leased property is used in ways that follow from its functional purpose. Such methods are determined by operational documents, specifications and mandatory standards. The parties can agree on them by specifying in the contract specific technologies, methods or techniques that the tenant must use to extract useful properties from the property.

The parties can specify the ways of using the property following from its purpose. For example, if the lessor wants to extend the service life of the machine, on which, in accordance with the operating documents, it is possible to apply various production technologies for certain products, the parties can agree on a specific production technology.

Also, the parties can agree on a method of use that does not follow from the functional purpose of the leased object. For example, leased production equipment is used in ways other than those specified in the operating documents.

Example

"The machine leased out under this agreement is provided for its use as an exhibit at the Milling Machine-2010 exhibition organized by the lessee. The lessee undertakes to use the Machine only in the following ways:

• 1) place the Machine in a heated room on a horizontal turntable of the exhibition stand;
• 2) do not connect the Machine to the electrical network;
• 3) not to produce any products on the Machine, including for demonstration purposes;
• 4) the lessee can install demonstration blanks in the machine tool holder at his own discretion;
• 5) the lessee can install a processing demonstration tool in the tool holder at his own discretion. "

The volume of use of the leased object - This is a condition of the contract that determines the quantitative indicator of the result of the extraction of useful properties. For example, in accordance with the technology of work and operational documents, it is possible to produce 500 pieces of products per day on the machine, but the lessor wants to extend its service life, therefore he transfers the machine for use, defining a smaller number of parts that the lessee can produce during the day.

The mode of use of the leased object - this is a condition of the contract that determines the parameters of the operation of the leased object when extracting useful properties from it by the lessee. For example, in accordance with the technology of work and operational documents, it is possible to work on the machine in the range of spindle rotation speeds up to 3200 rpm, but the lessor wants to extend its service life, therefore he transfers the machine for use, determining the lower maximum permissible rotation speed.

Parties must determine list of accessories (component parts, component parts), transferred together with the leased object, which may be needed for its full use in accordance with the terms of the contract. For example, you need to specify whether a square attachment is included with the lathe or how many internal shelves the cabinet should have.

Based on the provisions of Art. 135 and 611 of the Civil Code of the Russian Federation, the agreement may provide that the leased object (main thing) is transferred without accessories or without part of the accessories.

The proper determination of the condition on the composition of the accessories of the leased object is made by:

• - coordination of the composition of accessories in the documents related to the leased object;
• - agreement on the composition of the leased object's accessories in the text of the agreement;

agreeing on the composition of accessories by indicating special conditions for using the leased object.

Accessories (their list), as a rule, are indicated in the operational documents for the leased object.

Such documents include the technical data sheet provided by the lessor, operating instructions, a list of a set of spare parts, tools and accessories.

If the composition of the accessories is reflected in these documents, it is in the interests of the tenant to make a reference to them in the contract and indicate them as mandatory documents transferred along with the leased property.

This will allow him to prove the incompleteness of the leased object if the property is transferred without the required accessories (Article 611 of the Civil Code of the Russian Federation).

If the parties did not agree on the composition of the accessories with reference to the documents related to the leased object, then the lessee, who did not receive the accessories he needed, must prove the incompleteness of the property. Moreover, such proof will be complicated by the fact that he cannot directly refer ira documents that are not named in the contract and, possibly, are missing, without first receiving the documents and not proving their relevance to the leased property.

If the lessee needs the leased object to have certain characteristics and it can be used to achieve certain goals, but he does not care (or does not know) with what accessories this can be achieved, the contract should indicate the required characteristics and the purpose of using the leased object. In this case, the lessor will be obliged to provide an accessory that ensures that the leased property meets the specified characteristics and purpose of use, even if this part is not included in the standard equipment of the leased property.

Disadvantages of the rental object - this is the inadequate quality of the thing, which prevents its further use by the tenant for its intended purpose. This conclusion follows from the judicial interpretation of paragraph 1 of Art. 612 of the Civil Code of the Russian Federation.

The consequences of the transfer of a thing with defects are defined in paragraph 1 of Art. 612 of the Civil Code of the Russian Federation. Based on the meaning of this provision, the lessor is responsible for all the shortcomings of the leased property that fully or partially impede its use, even if he did not know about them at the time of the conclusion of the contract. However, in the cases provided for in paragraph 2 of Art. 612 of the Civil Code of the Russian Federation, the lessor is released from liability for these shortcomings, in particular, if they are stipulated when concluding the contract.

If at the time of the conclusion of the contract the property has defects, it is in the interests of the lessor to indicate them in the contract. In this case, he will not be liable under paragraph 1 of Art. 612 of the Civil Code of the Russian Federation, even if the indicated shortcomings prevent the lessee from using the property. In particular, if the lessee knew about the defects of the property and at the same time assumed the obligation to overhaul it, he will not be able to claim reimbursement of expenses for its implementation, referring to the elimination of the shortcomings.

In order to properly agree on the condition on the shortcomings of the leased object, the agreement must:

• - describe in detail the very shortcoming of the rental object;
• - indicate what is the obstacle to using the leased object for the purposes of the contract.

If the condition on the shortcomings of the leased object is not agreed upon, then if deficiencies are identified, due to which the tenant cannot fully or partially use the property, he has the right to present the requirements provided for in paragraph 1 of Art. 612 of the Civil Code of the Russian Federation. In particular, he can demand from the lessor reimbursement of expenses for the elimination of deficiencies. It should be borne in mind that paragraph 1 of Art. 612 of the Civil Code of the Russian Federation does not provide for the obligation of the lessee to notify the lessor of the fact that deficiencies have been identified. However, from par. 6 p. 1 of Art. 612 of the Civil Code of the Russian Federation, it follows that the lessor can eliminate them without additional payment or replace the property with a similar one in proper condition, if he is notified by the tenant about the need for this or about the intention to eliminate the deficiencies at the expense of the lessor. If, upon receipt of this notification, the landlord does not immediately take the actions provided for in par. 6 p. 1 of Art. 612 of the Civil Code of the Russian Federation, the lessee has the right to recover from him the costs incurred in connection with the elimination of deficiencies.

It should be borne in mind that the lessee does not need to obtain the consent of the lessor to carry out work to eliminate defects in the property.

If the lessee knew in advance about the shortcomings of the property or he should have discovered them during the inspection or verification of the property when it was transferred by the lessor or when concluding an agreement, then the lessor is released from liability for the transfer of property with defects (clause 2 of article 612 of the Civil Code of the Russian Federation).

Arbitrage practice

So, if the tenant without comment accepted the property with the defects that he should have. i discover during the inspection of the property or check its serviceability (obvious deficiencies), in the future the court may refuse to satisfy the claims for compensation for losses incurred in connection with the elimination of such deficiencies.

In addition, if the tenant accepted the property without comment, he has no right to refuse to pay the rent due to the discovery of defects that he knew about or that he could have discovered during the transfer of the object. However, there is a judicial practice according to which the renter's refusal to pay in the event that the property is transferred to him in an inadequate condition is recognized as legitimate, even if the shortcomings could have been revealed upon receipt.

In the event of deficiencies in the process of using the property, the lessee has the right to present the requirements provided for in paragraph 1 of Art. 612 of the Civil Code of the Russian Federation. It should be borne in mind that in judicial practice there is a position according to which, if the lessee discovered flaws, but did not declare the specified requirements to the lessor and continues to use the property, he does not have the right to refuse to pay the rent, citing the impossibility of using the leased object. At the same time, there is the opposite position, according to which the lessor may be refused to collect the debt from the lessee who did not pay the rent due to the shortcomings of the transferred property and the impossibility of using it, despite the fact that the requirements provided for by n. 1 tbsp. 612 of the Civil Code of the Russian Federation, the tenant was not announced before the trial.

The state of the thing - this is a set of properties and parameters that change during all exploitation, which determine the possibilities of using a thing. This definition follows from a comparison of standards and guidelines governing safety, maintenance, etc. various technically complex things (GOST R 51709-2001, GOST R 27.002-89, Guidelines "Maintenance of medical equipment", approved by the Ministry of Health of the Russian Federation on September 24, 2003, the Ministry of Industry, Science and Technology of the Russian Federation on 10.10.2003, order of the Federal Road Agency dated February 16 .2009 No. 46-r, GOST R 53341-2009, etc.).

The condition on the condition of the leased object is the properties and parameters of the leased property agreed by the parties, which it must comply with for lease purposes. This condition is aimed at determining the mutual ideas of the parties about the parameters and useful properties of the leased object and avoids conflicts in the execution of the contract. If it is important for the tenant for the purposes of using the property that it conforms to certain parameters or has certain properties, then in the contract it is necessary to agree on the condition in which the landlord must provide the property.

It should be borne in mind that if the lessee is unable to use the property due to its receipt in a condition that does not correspond to its purpose and the terms of the contract, the court may recognize that the lessor has not fulfilled the obligation to transfer the property established by Art. 611 of the Civil Code of the Russian Federation. In this case, the landlord will not be able to collect rent arrears and interest on the use of other people's funds from the tenant.

Condition on the procedure for the transfer of property determines in what period and in what place the leased object should actually pass into the possession and (or) use of the lessee, as well as how the transfer should be confirmed.

It should be taken into account that by virtue of Art. 608 of the Civil Code of the Russian Federation, the right to lease a thing belongs to the owner or a person authorized by law or by the owner. Moreover, the lessor must have ownership not at the time of the conclusion of the contract, but at the time of transfer of the thing to the lessee (paragraphs 1, 2 and 10 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of November 17, 2011 No. 73). According to par. 3 clause 12 of the said resolution if the lessee is transferred to the property to which the lessor did not have the right of ownership, the owner of the property will be able to demand payment for the use of the property that was in illegal possession, on the basis of Art. 303 of the Civil Code of the Russian Federation. This requirement can be brought against the person who illegally leased the thing, as well as against the lessee if he knew that the lessor did not have the appropriate right (paragraphs 4, 5, clause 12 of the resolution).

The general provisions of the Civil Code of the Russian Federation on a lease agreement do not provide for any requirements for the procedure for transferring property. Accordingly, the parties can agree on it at their discretion.

When agreeing on the procedure for transferring property in the contract, it is necessary to determine:

• - term of transfer of property for rent;
• - place of transfer of property for rent;
• - documents that confirm the transfer of property for rent. If the condition on the procedure for transferring property for lease is not agreed, then the property must be transferred to the lessee within a reasonable time after the signing of the contract (and. 3, Art. 611 of the Civil Code of the Russian Federation). The transfer must take place at the place of storage of the property, if this place was known to the tenant at the time of the conclusion of the contract (paragraph 4 of article 316 of the Civil Code of the Russian Federation), or at the location of the lessor (paragraph 6 of article 316 of the Civil Code of the Russian Federation). As evidence of the transfer of property, acts of acceptance and transfer, other documents confirming the actual transfer of property to the lessee, as well as other evidence of the existence of rental legal relations can be used.

Condition for the return of the leased property determines the procedure for fulfilling the tenant's obligation to return the property to the lessor upon termination of the lease agreement (paragraph 1 of article 622 of the Civil Code of the Russian Federation).

Due to the specifics of the lease legal relationship, an individually defined thing is transferred under a lease agreement. Accordingly, upon termination of the contract, exactly the thing that was provided to the lessee for temporary possession and use must be returned. The parties cannot agree on the return of another (even similar or having the same generic characteristics) thing. Otherwise, the concluded agreement will no longer be a lease agreement.

Also, the parties cannot exclude by the agreement the obligation of the tenant to return the leased property, since this obligation is imperative (paragraph 1 of article 622 of the Civil Code of the Russian Federation). An exception is the case when the agreement provides for the purchase of leased property (Article 624 of the Civil Code of the Russian Federation). However, the parties have the right to determine the procedure for the return of property.

To agree on this procedure, it is necessary to agree on:

• - the condition of the property at the time of its return;
• - accessories and documents to be transferred when returning property;
• - place of return of property;
• - the term for the return of property.

Normal wear and tear is understood as the degree of change of a thing that is assumed to be natural during its normal use during the term of the contract. For some things, the indicator of normal wear and tear can be established by technical standards or determined by the usual requirements (based on the conditions for using the thing).

The parties can agree on a different state of the property at the time of its return (paragraph 1 of article 622 of the Civil Code of the Russian Federation). For example, it can be provided that it is returned refurbished or with improvements made by the tenant. Such conditions are beneficial to the lessor, since the value of his property will increase. However, in this case, the lessee is subject to additional obligations to improve the condition of the property.

According to par. 1 tbsp. 622 of the Civil Code of the Russian Federation, the lessee upon termination of the lease is obliged to return the leased property.

Arbitrage practice

The courts indicate that it must be returned at the time of termination of the contract, regardless of the grounds for its termination (expiration of the contract, early termination, etc.). In this case, the term for the return of property is determined by the moment of termination of the contract (see the resolution of the Third Arbitration Court of Appeal dated November 16, 2009 in case No. AZZ-8385/2009, resolution of the Third Arbitration Court of Appeal dated November 14, 2008 No. AZZ-9580 / 2007-03AP-3167 / 2008).

However, sometimes the parties deviate from the provisions of par. 1 tbsp. 622 of the Civil Code of the Russian Federation and establish the period for the return of the leased property, which does not coincide with the moment of termination of the lease agreement. So, a common condition is that the property must be returned after a certain time after the termination of the lease agreement, for example, within several days after its expiration (see the resolution of the FAS of the Volga District of 03.03.2009 in case No. A12-7646 / 2008 , Resolution of the Federal Antimonopoly Service of the North Caucasian District of 18.09.2009 on case V А20-1896 / 2008, resolution of the Thirteenth Arbitration Court of Appeal dated 29.06.2009 in case No. L56-10084 / 2009).

It can be assumed that it is permissible to agree on a condition for the return of the leased property within a certain period after the end of the contract. This right of the parties follows from the absence in par. 1 tbsp. 622 of the Civil Code of the Russian Federation of an imperative requirement for the return of property simultaneously with the termination of the lease agreement.

Arbitrage practice

The Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of March 14, 2014 No. 16 "On freedom of contract and its limits" sets forth a new approach to qualifying the norm governing the rights and obligations under a contract as mandatory or dispositive. Courts are encouraged to depart from the presumption of imperativeness in cases where there is no indication of the possibility of providing otherwise by agreement of the parties.

In accordance with paragraph 2 of the resolution, a norm is peremptory if it contains an explicit prohibition to establish otherwise. In the absence of such a prohibition, it is qualified as imperative only in the following cases, given in n. 3 regulations (criteria of imperativeness):

• - the imperative is necessary to prevent a gross violation of the balance of interests of the parties;
• - changing the norm or excluding its application will create a contradiction with the essence of the legislative regulation of the relevant agreement:
• - imperativeness is necessary to protect particularly significant interests (for example, public interests, the interests of third parties or the weak side of the contract), the protection of which the norm is aimed at.

In all other cases, the norm should be regarded as dispositive. In this regard, the parties have the right to exclude the application of the norm in the agreement or establish a condition that differs from that provided for in it. At the same time, the difference between the terms of the contract and the norm is not a basis for recognizing the contract or its individual conditions as invalid under Art. 168 of the Civil Code of the Russian Federation (clause 4 of the resolution).

Paragraph 1 of Art. 622 of the Civil Code of the Russian Federation does not contain a prohibition to establish otherwise and does not meet the imperative criteria specified in paragraph 3 of the resolution. This allows us to assume that this rule is dispositive in terms of the return period for the leased property. Consequently, the condition on the return of property in a period that does not coincide with the end of the contract does not contradict par. 1 tbsp. 622 of the Civil Code of the Russian Federation.

However, when agreeing on the conditions for the return of property after the end of the contract, the parties should take into account that during its execution a situation may arise when the property will actually be in the possession and (or) use of the tenant after the termination of the contract, which will entail adverse consequences for both parties. So, if the lessor does not intend to continue the relationship under the contract and does not declare this before the expiration of its validity period, the court on the basis of paragraph 2 of Art. 621 of the Civil Code of the Russian Federation can recognize the contract as renewed for an indefinite period.

For the tenant, in turn, when setting a return period after the end of the contract, the same consequences may occur as in the case of a delay in return (paragraph 2 of article 622 of the Civil Code of the Russian Federation), namely: he will have to pay rent until the actual return property.

The amount of rent for the period after the termination of the contract and before the actual return of the leased object is determined by the contract (clause 38 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of January 11, 2002 No. 66 "Review of the practice of resolving disputes related to rent"). Therefore, the lessor has the right to stipulate in the contract a condition on an increased amount of payment for the use of property during this period.

However, it is not recommended to place such a condition in the liability section, as well as to establish an increased rent for each day of delay in return, since in this case the court may recognize such a condition as an agreement on a penalty and reduce its amount in accordance with Art. 333 of the Civil Code of the Russian Federation.

Property maintenance - this is the maintenance of the property in good, safe and serviceable condition in accordance with its purpose, as well as the payment of costs arising in connection with this (see the jurisprudence, in which this concept is interpreted in relation to the obligations of the owner of the property: the decision of the Eighteenth Arbitration Court of Appeal from 18.03.2010 No. 18AP-1099/2010, resolution of the Third Arbitration Court of Appeal dated 01.07.2010 on case No. AZZ-452/2010, resolution of the Presidium of the St. Petersburg City Court dated 28.06.2006 No. 44g-361/06).

Article 616 of the Civil Code of the Russian Federation is dispositive and allows the parties to regulate their relations regarding the maintenance of the leased property (clause 4 of Article 421 of the Civil Code of the Russian Federation).

To agree on the conditions for maintaining the property in the contract, it is necessary to provide for the obligations of the parties:

• - for the implementation of major repairs;
• - carrying out current repairs;
• - maintaining the leased property in good condition;
• - payment of expenses for the maintenance of the leased property. Overhaul - this is a repair carried out to restore serviceability and complete or close to full recovery product resource with replacement or restoration of any of its parts, including basic ones (clause 36 of GOST 18322-78 "System of technical maintenance and repair of equipment. Terms and definitions", approved by the USSR State Committee for Standards dated November 15, 1978 No. 2986).

Arbitrage practice

In judicial practice, other definitions of major repairs are also used. In particular, it means carrying out works aimed at preserving the integrity, purpose and cost of the cave, which require significant costs for the restoration of essential parts, elements of the thing due to their wear and tear, breakage or other influences from external factors.

The condition for the overhaul of the leased property determines which party makes the overhaul, at whose expense it is carried out, and also determines the conditions for the repair. The coordination of this condition is in the interests of both parties, since it determines their mutual ideas about the implementation of major repairs and avoids conflicts in its implementation.

Therefore, the contract must provide for:

• - the party that is responsible for the overhaul;
• - distribution of expenses for capital repairs between the parties;
• - types, volume and cost of capital repairs;
• - the term of the overhaul;
• - the procedure for making rent for the period of major repairs.

For some types of property, the requirements of regulatory and technical documentation may provide for scheduled overhaul with a certain frequency (clause 39 of GOST 18322-78). For example, scheduled overhaul at a certain frequency is provided for railway cars and containers, cars, buses, trailers and semi-trailers (clause 5.2.4 of the Safety Rules for the carriage of dangerous goods by rail, approved by the Federal Mining and Industrial Supervision of Russia dated 16.08.1994 No. 50, p. 1.2, 2.2.12, 2.15.1 of the Regulation on maintenance and repair of the rolling stock of road transport, approved by the Ministry of Road Transport of the RSFSR 09/20/1984). If scheduled or unscheduled repairs are stipulated by regulatory documents, the parties may agree that the lessee is obliged to carry out only scheduled overhaul of the property, and the lessor - unscheduled, or otherwise distribute responsibilities for overhaul.

Maintenance - repairs performed to ensure or restore the functionality of a product. It consists in replacing and (or) restoring individual parts of the thing (clause 38 of GOST 18322-78).

In judicial practice, another definition of current repair is used. It is understood as the systematic and timely performance of work to protect property from premature wear and tear and eliminate the resulting damage and malfunctions.

For the use of the leased property, the lessee pays a fee to the lessor - rent. Lease agreement by virtue of Art. 606, paragraph 3 of Art. 423 of the Civil Code of the Russian Federation is onerous. The tenant's obligation to pay rent is one of the distinguishing features of this type of agreement.

The provisions of Art. 606, 614 of the Civil Code of the Russian Federation do not classify the condition on rent as essential terms of the lease agreement. At the same time, the norms of the Civil Code of the Russian Federation on certain types of lease, as well as other regulatory legal acts, may stipulate that the condition on the rent is essential for the contract (paragraph 2, clause 1 of article 432 of the Civil Code of the Russian Federation). In particular, according to Art. 654 of the Civil Code of the Russian Federation, a lease agreement for buildings and structures must provide for the amount of rent, otherwise it is considered not concluded. Similar consequences by virtue of paragraph 1 of Art. 432 of the Civil Code of the Russian Federation will occur in the absence of a rental condition in the land lease agreement, since clause 3 of Art. 65 of the Labor Code of the Russian Federation, it is referred to essential conditions.

In addition, the condition on the rent will be essential if, during the negotiations, one of the parties declared the need to agree on it (paragraph 2, clause 1 of article 432 of the Civil Code of the Russian Federation). In this case, the contract cannot be considered concluded until the parties agree on the named condition or the party that proposed the price condition or announced its approval refuses its offer. This conclusion follows from the position formulated by the Presidium of the Supreme Arbitration Court of the Russian Federation in clause 11 of the Review of judicial practice in disputes related to the recognition of contracts as not concluded (information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 25, 2014 No. 165).

Legal relations for the lease of movable property are governed by the general rules of the Civil Code of the Russian Federation on leasing (§ 1, Chapter 34 of the Civil Code of the Russian Federation). Also, some special rules on certain types of lease agreements apply to them - § 2 Ch. 34 of the Civil Code of the Russian Federation (rental), § 3 Ch. 34 of the Civil Code of the Russian Federation (lease Vehicle), § 6 Ch. 34 of the Civil Code of the Russian Federation (leasing). The specified norms did not classify the condition on the amount of the rent as essential.

• - type (form) of rent;
• - the amount of the rent or the method of its determination.

According to paragraph 2 of Art. 614 of the Civil Code of the Russian Federation, the rent can be set in the form:

• - a fixed amount of payments;
• - share of proceeds from the use of the leased property;
• - provision of services;
• - transfer of property to ownership;
• - transfer of property for rent;
• - the imposition of costs for the improvement of the leased property;
• - other types of rent at the discretion of the parties.

According to sub. 1 p. 2 art. 614 of the Civil Code of the Russian Federation, the rent can be set in a fixed amount of payments. In Art. 140 of the Civil Code of the Russian Federation states that payments in the territory of the Russian Federation are made in rubles. Consequently, Art. 614 of the Civil Code of the Russian Federation provides for the obligation of the lessee to pay rent in cash by cash and non-cash payments (Chapter 46 of the Civil Code of the Russian Federation).

Thus, the proper agreement of the rent in a fixed amount of payments is made by specifying the amount of rent in rubles (clause 1 of article 317 of the Civil Code of the Russian Federation).

According to paragraph 2 of Art. 614 of the Civil Code of the Russian Federation, the rent can be set in the form of a share of proceeds received as a result of the use of the leased property. Depending on the rental object and the way it is used, the parties can agree on the rent by establishing a share of one or more types of receipts.

In some cases, the condition on the type of income should be as specific as possible. This is relevant, for example:

• - when the object of lease is property, as a result of the use of which both fruits and products can be obtained;
• - when the lessor intends to receive a share of a specific income as rent and does not claim a share of all other fruits, products and income;
• - when it is not clear to which category the proceeds from the use of the property belong.

In such situations, all types of possible income should be listed in the contract and the shares to be transferred to the lessor should be determined for each type separately.

The result of the processing of fruits (products) is an independent thing that has nothing to do with the proceeds from the use of the leased property. This is due to the fact that when processing fruits and products, they are spent (destroyed) to create a new thing (Article 220 of the Civil Code of the Russian Federation), the owner of which is the lessee (paragraph 2 of Article 606, paragraph 1 of Article 220 of the Civil Code of the Russian Federation). Therefore, the lessee cannot transfer such a thing, and the lessor cannot claim it as a rent, established in the form of a share of proceeds.

The rental condition in the form of a share of income usually implies a pecuniary obligation of the lessee, since most of the income comes in the form of cash. Income from the use of the leased property may be the income of the lessee received under a property sublease agreement or as a result of the performance of work, the provision of services using the leased property.

When the rent is set in the form of a share of the products, fruits or income received as a result of the use of the leased property, accounting for such receipts is of particular importance.

For the correct calculation of the rent, it is necessary that both parties come to an agreement on how much production is produced (fruits or income received). Therefore, it is necessary to agree on a mechanism for setting the volume of receipts in the contract.

The lessor can control the amount of proceeds from the use of the property in two ways:

• - being present in the production of products (receipt of income and fruits);
• - checking the data provided by the lessee based on the results of a certain period (stage) of use.

If the lessor intends to control the amount of income by checking such information, the contract must indicate:

• - the form for providing information and a list of documents confirming them;
• - terms of the information provided by the lessee;
• - the procedure (including terms) for checking and approving the information provided by the lessee by the lessor.

If the income from the use of movable rented property is agricultural products, statistical observation forms can be used to record and control the volume of receipts. They are periodically provided by agricultural producers to the territorial bodies of Rosstat (see order of the Federal State Statistics Service of September 17, 2010 No. 319 "On the approval of statistical tools for organizing federal statistical monitoring of agriculture and the natural environment "):

• - P-1 (SH) "Information on the production and shipment of agricultural products;
• - 24-CX "Information on the state of animal husbandry";
• - 2-farmer "Information about the harvesting of agricultural crops";
• - 3-farmer "Information about the production of livestock products and livestock."

If the lessor intends to personally record the actual volume of receipts, the contract must establish:

• - the right of the lessor to be present when using the rented equipment;
• - the obligation of the lessee to admit an authorized observer of the lessor to control the production of products, collect fruits, receive income;
• - the form of the document, which reflects the volume of receipts;
• - the procedure for approval by the parties of information on the volume of receipts.

The parties may establish that the lessee must provide services to the lessor for the right of temporary use of the leased object, i.e. to perform certain actions or carry out certain activities (subparagraph 3, clause 2 of article 614, article 779 of the Civil Code of the Russian Federation).

From the literal content of sub. 3 p. 2 art. 614 of the Civil Code of the Russian Federation, it follows that when agreeing on this form of rent, the parties must indicate in the vehicle contract the services that the lessee is obliged to provide as payment.

In the event that the lessee possesses property that the lessor needs to use, the parties in accordance with zero. 4 p. 2 art. 614 of the Civil Code of the Russian Federation can agree on rent in the form of transferring a certain thing (things) to the lessor for rent.

From the literal content of the specified rule, it follows that in order to establish such a form of rent, the parties need to condition, i.e. to define by the contract the given thing. The proper definition of the property leased out as rent is made according to the rules established by law for the definition of the lease object (Article 607 of the Civil Code of the Russian Federation).

Subparagraph 4 of paragraph 2 of Art. 614 of the Civil Code of the Russian Federation provides for the possibility of making settlements under a lease agreement by transferring property into the ownership of the lessor. The literal content of this rule indicates that in order to establish rent in the form of transferring a thing into ownership, the parties must determine, i.e. to define by the contract, the given thing.

Chapter 34 of the Civil Code of the Russian Federation "Rent" does not contain the rules for determining in the contract the thing to be transferred to the lessor. Since the relationship on the lease of property in this part is not regulated by law, by analogy with the law (Article 6 of the Civil Code of the Russian Federation), the rules of law regulating similar relationships can be applied to them. By its legal nature, the lessee's obligation to transfer certain property to the lessor is similar to the seller's obligation to transfer the goods to the buyer. Therefore, the rules for determining the goods established by Ch. 30 of the Civil Code of the Russian Federation "Purchase and Sale".

The law provides for the possibility of establishing rent in the form of imposing on the tenant the costs of improving the leased property stipulated by the contract (subparagraph 5 of paragraph 2 of article 614 of the Civil Code of the Russian Federation). There are no definitions of improvements in the Civil Code of the Russian Federation. From the analysis of Art. 623 of the Civil Code of the Russian Federation and judicial practice, it follows that improvement is understood as work of a capital nature that increases (changes) the quality characteristics of the leased object, in particular, work on its modernization, reconstruction, completion, and additional equipment. From the literal content of sub. 5 p. 2 art. 614 of the Civil Code of the Russian Federation, it follows that when agreeing on the specified form of rent, the parties must determine, i.e. determine in the contract the costs of improving the leased property, which are borne by the lessee as rent.

Given in paragraph 2 of Art. 614 of the Civil Code of the Russian Federation, the list of types of rent is not closed. The parties may provide for several types of rent in the contract, taking into account the requirements established for each of them. When agreeing on a combination of several forms of rent, the parties must indicate in the agreement which form of payment is applied in a particular case.

The parties also have the right to establish that the lessee pays the amount owed by the third party to the lessor as rent. This condition is consistent with Art. 421, 614 of the Civil Code of the Russian Federation.

The rent cannot be set in the form of payment by the tenant for utilities (electricity, water, heat), fuel and lubricants and other materials consumed when using the leased object. With this form of payment, the lessor does not actually receive any remuneration from the tenant for the right to use the leased object, which contradicts the paid nature of contracts of this type (clause 12 of the 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 lease ").

According to Art. 450 of the Civil Code of the Russian Federation, there are the following grounds for changing the terms of the contract, including in terms of the amount of rent:

• - agreement of the parties (clause 1 of article 450 of the Civil Code of the Russian Federation);
• - a court decision taken at the request of one of the parties (clause 2 of article 450 of the Civil Code of the Russian Federation).

A lease agreement may provide for both the right to change the condition on the amount of the rent, and the obligation of the parties to change this condition. The parties may establish a mutual obligation to conclude an additional agreement on changing the amount of the rent. To do this, it is necessary to indicate in the contract that the rent is subject to revision by agreement of the parties. It also allows you to define a list of events, the occurrence of which is necessary to change the contract, or the period after which the amount of rent must be changed.

Since the condition on changing the amount of rent by agreement of the parties gives rise to their mutual obligations, either party has the right to demand from the other to amend the agreement. A party that has received a proposal to change the amount of rent is not entitled to evade signing the corresponding supplementary agreement (Articles 309, 310 of the Civil Code of the Russian Federation). Otherwise, changes will be made to the contract by a court decision, and the rent will be set in the amount declared by the plaintiff.

Guided by paragraph 2 of Art. 424 and clause 1 of Art. 450 of the Civil Code of the Russian Federation, the parties can secure in the contract the right to change the amount of rent unilaterally. In this case, the basis for the change is the adoption by the party to which such a right is granted, the decision to change the terms of the contract. To agree on this condition, it is necessary to indicate in the agreement the party to which the right to unilaterally change the terms of the agreement belongs.

When agreeing on the terms of the tenant's right to unilaterally change the amount of the rent, the parties should take into account the following. The condition of granting such a right to the lessee does not correspond to the established customs of business turnover. As a rule, this right is vested only with the lessor as the person in charge of the property. Therefore, the condition on the possibility of changing the amount of payment by the tenant should be reflected as concretely, in detail and unambiguously as possible. Otherwise, when considering the dispute, the court may decide that a technical error was made in the contract and the tenant does not have the right to change the amount of the rent unilaterally.

In paragraph 21 of the Resolution No. 73 of November 17, 2011, the Plenum of the Supreme Arbitration Court of the Russian Federation explained that the norm of paragraph 3 of Art. 614 of the Civil Code of the Russian Federation is dispositive and the parties have the right to change the amount of rent by agreement of the parties more often than once a year. However, if the landlord is granted the right to unilaterally change the amount of rent by law or contract, he can use it no more than once a year.

An agreement to change the rent must be concluded in the same form as the agreement (clause 1 of article 452 of the Civil Code of the Russian Federation). According to paragraph 1 of Art. 609 of the Civil Code of the Russian Federation, a lease agreement must be concluded in writing if it is concluded for a period of more than a year or (regardless of the period) if at least one of the parties is a legal entity.

Change in the amount of rent by agreement of the parties can be executed:

• - by drawing up one document, for example, an additional agreement, protocol, etc. (Clause 2, Article 434 of the Civil Code of the Russian Federation);
• - by sending an offer by one party and its emphasis by the other (Art. 435-443 of the Civil Code of the Russian Federation).

The procedure for changing the terms of the contract but by agreement of the parties is established by law, so there is no need to agree on it. In the absence of conditions on this procedure in the agreement, the parties must be guided by the provisions of Ch. 29 of the Civil Code of the Russian Federation.

In accordance with paragraph 3 of Art. 453 of the Civil Code of the Russian Federation, the obligations of the parties begin to operate in a modified form from the moment of the conclusion of an agreement on changing the amount of rent. However, this provision provides for the possibility of establishing in a contract or an additional agreement a different procedure for the entry into force of amendments. So, in an additional agreement it may be indicated that the condition on changing the amount of rent begins to operate some time after the signing of the agreement. In this case, the parties must determine the date of entry into force of the changes in accordance with the rules of Art. 190-192 of the Civil Code of the Russian Federation. They can set in the contract or supplementary agreement a specific date or period of time after which the changes come into force.

An agreement on changing the amount of rent under a lease agreement for real estate, which is subject to state registration, in particular, a lease agreement for a building, structure, concluded for a year or more (clause 2 of article 651 of the Civil Code of the Russian Federation), is also subject to state registration and is considered concluded with the moment of registration by virtue of paragraph 3 of Art. 433 of the Civil Code of the Russian Federation. Such an agreement is an integral part of the agreement and changes the content and conditions of the encumbrance generated by the lease agreement, as a result of which the requirement for state registration applies to it (clause 9 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 16, 2001 No. Law "On state registration of rights to real estate and transactions with it" ").

At the same time, it should be borne in mind that if the lessor sent the tenant a letter about the change in the amount of the rent and the tenant began to pay it in the specified amount, the court on the basis of paragraph 3 of Art. 438 of the Civil Code of the Russian Federation and clause 5 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 05.05.1997 No. 14 "Review of the practice of resolving disputes related to the conclusion, amendment and termination of contracts" may admit that the lessee has performed implicit actions to fulfill the conditions listed in the offer. Such actions indicate the consent of the lessee to amend the contract, in connection with which the conclusion of an additional agreement is not required. In this case, the lessee does not have the right to demand the collection of unjust enrichment from the lessor.

Since no additional agreement is drawn up when the rent is changed unilaterally, the tenant must be notified of such a change. In this case, the tenant will be obliged to pay rent in the new amount from the moment of receipt of the notification.

If the contract defines the conditions for changing the amount of rent, the party must confirm the occurrence of these conditions. In this regard, it is recommended to establish in the contract:

• - method of notification of changes in the terms of the contract;
• - a list of documents attached to the notification or information included in the notification confirming the existence of conditions for changing the amount of rent.

The parties may establish the following methods of bringing the will of one of them to the attention of the other:

• - publication of information in a certain media outlet (the name and details are indicated in the contract);
• - sending a notification by means of postal or telegraph communication (the type of postal item can be specified by the agreement);
• - delivery of the notification to the courier (persons specified in the agreement and (or) at the address specified in the agreement).

Depending on the conditions established by the agreement, changes in documents (data) confirming their occurrence may be:

• - the results of the appraisal of the market value of the lease obtained by an independent appraiser;
• - the instruction of the Central Bank of the Russian Federation "On the size of the refinancing rate of the Bank of Russia";
• - information on the consumer price index published by the Federal State Statistics Service.

The parties can specify in the agreement the maximum amount of the change in rent. In the presence of this condition, the rent can be changed only within the limits established by the contract.

It is recommended to include a clause on the limit of change in the size of the rent in an agreement providing for a unilateral change in the size, since it will protect the tenant from a sharp increase, and the lessor from a sharp decrease in the size of the rent.

It should be borne in mind that an agreement containing a clause on regular changes in the size of the fee by agreement of the parties gives rise to mutual obligations of the parties to sign a corresponding supplementary agreement. It is recommended to include in such an agreement a condition on the limit of rent revision, since if there is one, the party insisting on the conclusion of an additional agreement has the right to demand a change in the rent only within the limits established by the agreement.

Exceeding the limits for changing the rent provided by the contract is illegal (Articles 309, 310 of the Civil Code of the Russian Federation). The landlord will not be able to demand from the tenant to pay rent in an amount calculated without taking into account the limits specified in the contract.

The limit for changing the amount of rent can be set:

• - in the form of a solid value;
• - by indicating the order in which the limit is calculated.

Condition for paying rent includes information about in what order, when (before, after, or during the lease), in what installments (or in a lump sum) and who (the tenant or third party) will pay the rent.

To agree on the terms of payment of the rent, the parties are advised to indicate in the contract:

• - the procedure for paying rent;
• - the frequency of payment of the rent;
• - term of payment of rent;
• - the possibility of paying rent by a third party.

Rules of Art. 614 of the Civil Code of the Russian Federation allow the parties to independently determine the frequency (frequency) of paying rent. Despite the fact that such an opportunity is provided only for rent in a fixed amount (subparagraph 1 of paragraph 2 of article 614 of the Civil Code of the Russian Federation), it is possible to agree on the payment periods for any form of rent.

A one-off payment of the rent is usually used in short-term leases. In this case, the amount of the rent is set for the entire duration of the contract and the term for making the rent (prepayment or deferral).

Most often, the lease agreement establishes the tenant's obligation to pay the rent. equal amounts(in parts) at regular intervals. In this case, the rent is set not for the entire term of the contract, but for a certain period of time for using the leased object. To agree on such a condition, the parties need to determine the length of the accounting period, the amount of the fee for this period and the term for making the fee.

If the agreement does not contain conditions for the periodic payment of the rent, the frequency of payment of the rent is considered to be established, which is usually used when renting similar property under comparable circumstances (clause 1 of article 614 of the Civil Code of the Russian Federation). Thus, the court may recognize that the custom of business practice meets the condition of paying rent once a month or quarter (see the resolution of the Ninth Arbitration Court of Appeal dated 07.07.2008 No. 09AP-5378/2008-LK, 09-AP-5379/2008 -AK).

It is recommended that the lease agreement specify the term for making the lease payments. If the parties have provided for not a one-time, but periodic payment of the rent, the term must be agreed for each rental period. There are the following payment terms:

• - advance payment - the rent is paid before or at the beginning of the lease term (period);
• - deferral - the rent is paid at the end or after the end of the lease term (period);
• - advance payment and surcharge (final settlement) - part of the rent is paid before the beginning of the lease term (period), and part after its end.

The deadlines for making rent payments for the use of certain leased objects can be established by a regulatory act (see, for example, Resolution of the Government of the Russian Federation of June 30, 1998 No. 685 "On Measures to Ensure the Receipt of Revenues from the Use of Federal Property to the Federal Budget"). When agreeing on a lease agreement for such objects, the parties must be guided by the current acts containing the norms of civil law. A condition that contradicts a normative act is void on the basis of Art. 168 of the Civil Code of the Russian Federation. However, this circumstance does not invalidate the entire agreement (Article 180 of the Civil Code of the Russian Federation). Therefore, the rules established by legal acts (clause 4 of article 421, article 422 of the Civil Code of the Russian Federation) are applied to the relationship of the parties in terms of the timing of the payment of rent.

It should be borne in mind that the normative legal acts of the constituent entities of the Russian Federation are not classified as acts containing the norms of civil law (Article 3 of the Civil Code of the Russian Federation), in connection with which the lease agreement or its conditions will not be recognized as null and void, even if they contradict them. At the same time, in judicial practice, there is an opposite position, according to which in this situation the contract or condition is null and void.

In accordance with paragraph 1 of Art. 614 of the Civil Code of the Russian Federation, the obligation to pay rent lies with the tenant.

The law does not restrict the tenant's right to entrust the payment of rent to other persons, for example, a sub-lessee or another of its debtors. Therefore, the lessor is obliged to accept the performance offered for the debtor by a third party, if the performance of the obligation is entrusted by the debtor to the specified third party (clause 1 of article 313 of the Civil Code of the Russian Federation). If it is important for the lessor to pay the rent by the lessee, it is necessary to agree in the agreement on the prohibition of imposing the obligation of the lessee to pay on third parties.

The parties should take into account that some forms of rent do not allow the tenant to assign the obligation to pay to a third party. These forms include rent in the form of transferring to the lessor of individually defined property in ownership or in lease. These obligations can only be fulfilled by the lessee as a person who legally owns the property (Articles 209, 608 of the Civil Code of the Russian Federation).

The parties' particular attention should be paid to the obligation to pay rent in the form of rendering services to the lessee. When determining the procedure for making rent in the form of rendering services, by analogy with the law, the rules of Ch. 39 of the Civil Code of the Russian Federation "Paid provision of services".

According to Art. 780 of the Civil Code of the Russian Federation, the contractor is obliged to provide services personally and is not entitled to involve third parties in execution without the consent of the customer. However, the contract, which provides for a form of payment in kind, is not mixed (clause 3 of article 421 of the Civil Code of the Russian Federation), the obligation to provide services is not independent, since it is a form of rent. Therefore, in this case, be guided by paragraph 3 of Art. 421 of the Civil Code of the Russian Federation and it is not necessary to apply the provisions of the Civil Code of the Russian Federation on the provision of paid services to the relations of the parties.

Thus, if the rent in the form of rendering services is paid for the tenant by a third party, there is a contradiction with the norms of Art. 313 and 780 of the Civil Code of the Russian Federation. In such a situation, it is unclear whether the tenant has fulfilled the obligation if he has entrusted the provision of services to third parties, and whether the lessor has the right to refuse the performance offered for the tenant. To date, no court practice on this issue has been found. In order to avoid possible disputes about improper or proper performance by the tenant of obligations, the parties must indicate in the contract the tenant's right to involve third parties in the provision of services.

When the obligation to pay the rent is imposed on a third party, the tenant does not leave the legal relationship in question and his obligation to pay the rent does not stop.

Since according to paragraph 3 of Art. 308 of the Civil Code of the Russian Federation, the obligation does not create obligations for persons who do not participate in it as parties, the lessor does not have the right to present a demand for payment to a third party. It is a right and not an obligation of a third party to pay for the renter vis-à-vis the landlord. Therefore, even if there is a condition in the contract about the possibility of paying the rent by a third party, the lessor has the right to present a claim to pay the rent only to the lessee.

Therefore, if the parties have agreed in advance that the lease payments should be made by a third party, it is in the interests of the lessor to make this third party (payer) a party to the lease, i.e. sign a tripartite agreement. In such an agreement, it is necessary to provide for the obligation of the payer to pay the rent. Only in this case the payer becomes obligated to the lessor.

As a guarantee of proper performance of the contract, the lessee pays the lessor guarantee (security) payment. A guarantee payment is recognized in judicial practice as a way of securing the fulfillment of obligations, not named in Art. 329 of the Civil Code of the Russian Federation (see Resolution of the FAS of the Ural District of June 27, 2011 No. F09-3618 / 11, Resolution of the FAS of the Moscow District of June 15, 2011 No. KG-A40 / 5516-11, of July 05, 2010 No. KG-A40 / 6635-10 ).

First of all, the guarantee payment is intended to ensure that the tenant fulfills the obligation to pay the rent. In practice, due to this payment, the amounts of the penalty and damage caused to the lessor are also reimbursed (see the resolution of the FLS of the Moscow District of 18.04.2011 No. KG-A40 / 3206-11-P).

A guarantee payment can also be set in order to ensure that the lessee fulfills the following terms of the contract:

• - on the return of property upon termination of the contract;
• - making other payments stipulated by the contract;
• - maintenance of property in good condition.

The legislation does not define how such a payment should be called, so the parties have the right to determine its name on their own. The most common wording is "security deposit" or "security payment". Other names are also possible:

• - a security deposit (see the resolution of the Federal Antimonopoly Service of the Volgo-Vyatka District of 04/14/2011 in case No. A82-6483 / 2010);
• - security deposit (see the definition of the Supreme Arbitration Court of the Russian Federation dated 25.04.2011 No. VAS-4878/11);
• - a guarantee fee (see the resolution of the Federal Antimonopoly Service of the Moscow District dated July 27, 2011 No. KG-A40 / 7474-11);
• - warranty fee (see the resolution of the Federal Antimonopoly Service of the Moscow District dated 04/18/2011 No. KG-A40 / 3206-11-P);
• - insurance deposit (see the resolution of the Federal Antimonopoly Service of the West Siberian District of March 24, 2011 in case No. A27-6102 / 2010);
• - the guarantee fund (see the resolution of the Federal Antimonopoly Service of the Moscow District dated 20.10.2010 No. KG-A41 / 12083-10);
• - security payment (see resolution of the Federal Antimonopoly Service of the Urals District dated June 27, 2011 No. F09-3618 / 11);
• - insurance payment (see the resolution of the Federal Antimonopoly Service of the Moscow District of 12.01.2010 No. KG-A40 / 13999-09).

The parties have the right to agree on the condition that in case of violation by the lessee of obligations under the contract and in a number of other cases, the security deposit is not returned to the lessee, but is retained by the lessor (Article 421 of the Civil Code of the Russian Federation).

It should be borne in mind that withholding the security deposit in this case is not a way to secure the obligation provided for in Art. 359, 360 of the Civil Code of the Russian Federation, since the subject of withholding can only be things, and not monetary funds (see the resolution of the Federal Antimonopoly Service of the Moscow District of 06/15/2011 No. KG-A40 / 5516-11).

When the terms of withholding the guarantee payment are included in the agreement, it is necessary to agree on:

• - grounds for withholding the guarantee payment;
• - a condition on payment offset.

Negotiating the condition of withholding the security deposit upon termination of the contract is beneficial to the lessor, since due to the early termination of the contract, he loses the opportunity to receive the income he expected and is forced to look for a new tenant. Withholding the security deposit allows him to compensate for the losses incurred by the termination of the contract.

By virtue of the norms of Art. 421 of the Civil Code of the Russian Federation on freedom of contract, the parties have the right to determine that the guarantee fee is not refundable, even if the termination of the contract is not due to the party's violation of obligations under it (see resolution of the Federal Antimonopoly Service of the Moscow District of 10/25/2010 No. KG-A40 / 11183-10) ... In this case, the lessee will not have the right to demand the offset of the security deposit made against the payment of rental payments.

At the same time, in order to avoid abuse of the right by the lessor, it is advisable to establish that the security deposit cannot be withheld in case of unmotivated termination of the contract at the initiative of the lessor or in case of its termination due to violations of the terms of the contract.

Arbitrage practice

If the parties want to include in the agreement a clause stating that the security deposit upon termination of the contract is not returned to the lessee, they should take into account that the disputes arising from the application of such a condition are resolved ambiguously by the courts.

In the practice of arbitration courts, there have been several approaches to resolving disputes related to the payment and return of a security deposit (see the definition of the Supreme Arbitration Court of the Russian Federation of June 30, 201 1 No. BAC-5607/11), and they mainly relate to the following conditions of the contract:

• - withholding of payment as a penalty for termination of the contract by the lessee;
• - withholding of payment upon termination of the agreement by the lessor in connection with the violation by the lessee of the terms of the agreement.

The courts recognize as lawful the inclusion in the contract of a condition according to which the lessor has the right to withhold the security deposit as a penalty for terminating the contract at the tenant's initiative. As the courts point out, such a condition does not contradict Art. 329, 421 of the Civil Code of the Russian Federation.

However, in judicial practice, there is an opposite position on the impossibility of including the specified condition in the contract. The court recognizes this condition as null and void by virtue of Art. 168 of the Civil Code of the Russian Federation, since it contradicts Art. 330 of the Civil Code of the Russian Federation. Refusal to fulfill the contract on the grounds established by it or by law is the exercise by the party of the right granted to it, and not a violation of the obligation.

The parties can agree on a condition that the payment is not refundable upon termination of the contract by the lessor in connection with the violation by the lessee of the terms of the contract, for example, the terms of payment of the rent. This condition is recognized as lawful. In this case, the lessee will have to pay off the rent arrears, pay the contractual penalty and at the same time will not have the right to demand the return of the security deposit, citing the impossibility of applying two measures of responsibility for one violation.

However, if the contract is terminated not in connection with a violation of its terms by the tenant and at the same time a separate penalty has been established for late payment of the rent, the lessor, as the courts indicate, is not entitled to withhold the security payment, since double liability for the same violation is not provided for by law (see . Resolution of the Ninth Arbitration Court of Appeal dated 11.08.2011 No. 09AP-17792/2011-GK).

Withholding the amount of the security payment by the lessor is made by offsetting counter-homogeneous claims in accordance with Art. 410 of the Civil Code of the Russian Federation. At the same time, the courts indicate that, based on the meaning of this provision, offset is possible if the deadline for the fulfillment of the obligation secured by payment has come and the parties' claims for offset are reciprocal, homogeneous and indisputable (see the resolution of the Thirteenth Arbitration Court of Appeal dated 16.02.2011 in the case Л "А56- 26698/2010, resolution of the Ninth Arbitration Court of Appeal dated 30.08.2011 No. 09AP-19104/2011-GK, 09AP-19107/2011-GK). For example, the lessor's claim to reimburse the cost of repairing property and bringing it into a condition suitable for further renting is not indisputable. The court may recognize such costs as losses that must be proved in accordance with Art. 15.393 of the Civil Code of the Russian Federation. In this case, despite the presence in the contract of a condition on compensation for repair costs through a security deposit, the lessor will not be able to set off these costs as payment, if it does not prove their amount (see the decision of the Ninth Arbitration Court of Appeal dated 14.08.2009 No. 0 9AP-13665/2009-GK).

In accordance with clause 4 of the specified resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 03/14/2014 L!> 16 the norm of Art. 410 of the Civil Code of the Russian Federation is dispositive. This means that the parties have the right to agree on a condition different from that provided for in this article. So, the parties can agree on the possibility of offsetting obligations, the due date of which has not come. In addition, the parties have the right to agree on a condition for offsetting heterogeneous claims. For example, if the agreement provides for the lessee's obligation to repair the leased property before returning it, then, taking into account the position set forth in the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of March 14, 2014 No. 16, the parties may include in the agreement a condition on the possibility of offsetting the lessee's obligation with a guarantee (security) payment ... In this case, the cost of repairs can be determined according to an estimate compiled by an independent expert.

According to Art. 410 of the Civil Code of the Russian Federation, for offsetting, an application from at least one of the parties - the lessee or the lessor - is required. In this case, such a statement must be received by the other party (clause 4 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 65 dated December 29, 2001 "Review of the practice of resolving disputes related to the termination of obligations by offsetting counter-homogeneous claims"). Therefore, in order for the lessor to be able to set off the security deposit against the fulfillment of the lessee's monetary obligations without the lessee or the lessor additionally sending an application for offset and to eliminate the risk of not receiving it by the other party, it is recommended to agree on the condition on the possibility of offsetting the security deposit directly in the contract.

If the lessor went to court with a claim to collect the rent, the lessee will not be able to claim the set-off of the security deposit against the payment of the debt (clause 1 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 29, 2001 No. 65 "Review of the practice of resolving disputes related to the termination of obligations by offset counter homogeneous requirements "). Based on this legal position of the Supreme Arbitration Court of the Russian Federation, the courts indicate that in this case the lessee may apply

CO counterclaim on the recovery of the security deposit (see the resolution of the FLS of the Moscow District of 25.07.2011 No. KG-A41 / 7394-11, the resolution of the Thirteenth Arbitration Court of Appeal dated 23.06.2011 in the case No. L56-61686 / 2010).

By virtue of the rules on freedom of contract (Article 421 of the Civil Code of the Russian Federation), the parties have the right, at their discretion, to establish in the contract cases, upon the occurrence of which the lessee will be able to demand the return of the security deposit (definition of the Supreme Arbitration Court of the Russian Federation dated 09.12.2009 No. VAS-16005/09). The tenant is primarily interested in agreeing on the terms of the return.

As the basis for the return, the following may be provided:

• - termination of the contract by the lessee due to violation of its terms by the lessor (Article 620 of the Civil Code of the Russian Federation);
• - termination of the contract at the initiative of the lessor;
• - termination of the contract by agreement of the parties in accordance with paragraph 1 of Art. 450 of the Civil Code of the Russian Federation;
• - expiration of the contract in the absence of any violations of the contract by the tenant.

Arbitrage practice

In case of concluding a lease for a new term, the following should be considered.

If the security deposit is to be returned after the termination of the contract, upon termination of the contract, the parties conclude a new contract in relation to the same property, the security deposit may not be returned, but remain with the lessor in order to secure the tenant's obligations under the new contract (see resolution of the Federal Antimonopoly Service of the Moscow District dated 28.03. 2011 No. KG-A40 / 2066-11).

At the same time, after the termination of the contract, the lessor is not entitled to withhold the amount of the security deposit, referring to the expiration of the limitation period at the request of the lessee to return it due to the fact that such a claim could be made by the lessee only within three years from the date of termination of the original contract (Art. 196 of the Civil Code of the Russian Federation). When the lessor submits such claims, the court indicates that the security deposit is set off against the fulfillment of the lessee's obligations under the subsequent lease agreement, and he has the right to demand its return within three years from the date of termination of the contract concluded for a new period (see resolution of the Federal Antimonopoly Service of the Moscow District dated 09.03 .2011 No. KG-A40 / 1240-11).

If the security deposit is not returned, but remains with the lessor in order to secure the tenant's obligations under the renewed contract, in order to avoid controversial situations, it is recommended to agree that the previously made security deposit is counted towards the payment under the renewed contract.

According to paragraph 1 of Art. 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. In this case, all the rights and obligations of the previous lessor are transferred to the new owner, but the condition on the security payment remains in force (see the resolution of the Ninth Arbitration Court of Appeal dated 05.06.2008 No. 09LP-6026/2008-ЛК).

Otherwise, a situation is possible in which the lessee, who has properly fulfilled his obligations under the contract, will demand the return of the security deposit from the new owner, while in fact he transferred the money to the previous lessor. The court may oblige the new lessor to return the security deposit to the lessee, stating that if the party to the lease changes as a result of the change of the owner, all the obligations of the previous lessor are transferred to the new lessor (see resolution of the Federal Antimonopoly Service of the Moscow District dated 19.07.2011 No. KG-A40 / 7190- eleven).

You may also have another resolution of the dispute - the guarantee payment can be recovered from the previous lessor on the basis that the ownership of the property passed during the period of the contract (see the resolution of the Ninth Arbitration Court of Appeal dated 10.06.2010 No. 09LP-9964 / 2010- GK).

In accordance with paragraph 2 of Art. 615 of the Civil Code of the Russian Federation, the lessee is granted the right, with the consent of the lessor, to transfer the leased object or lease rights to third parties.

The lessee can exercise this right by:

• - delivery of the leased property for sublease (sublease) or transfer of it for free use;
• - transfer of rights and obligations under a lease agreement to another person (we transfer);
• - transfer of rental rights as collateral;
• - making rental rights as a contribution to the authorized capital of business partnerships and companies or a share contribution to a production cooperative.

In order for the tenant to exercise the rights provided for in paragraph 2 of Art. 615 of the Civil Code of the Russian Federation, he is obliged to obtain the appropriate consent of the lessor. The parties can provide in advance in the agreement in what form it will be issued, as well as the method and conditions for its issuance.

It should be borne in mind that the tenant's ability to exercise the right to transfer the leased object or lease rights to third parties depends only on the consent of the lessor. The parties are not recommended to include in the agreement a condition on the tenant's payment of a certain amount of money when transferring the leased object or lease rights to third parties. In particular, the court may recognize that the inclusion of a condition on the payment of an additional payment when transferring the leased object to sublease is not allowed, since this contradicts the provisions of Art. 614, 615 of the Civil Code of the Russian Federation. At the same time, there is an opposite practice, according to which the lessor has the right to demand an additional payment from the lessee for the sublease of the property.

In addition, the parties, when agreeing on the right to conclude transactions on the transfer of the lease object or lease rights to third parties by the lessee, should take into account the specifics of agreeing the terms of the lease agreement in connection with such a transfer, as well as the terms of agreements concluded by the lessee with third parties (sublease agreements, etc.) ...

It should be borne in mind that in judicial practice there is a position according to which the lessee does not have the right to compel the lessor to give consent, in particular, to transfer the object to sublease, since the issuance of consent is not the obligation of the lessor.

The courts also indicate that consent is not a unilateral transaction (Article 153 of the Civil Code of the Russian Federation) and does not entail any rights and obligations for the lessor. Therefore, the lessor has the right to revoke the previously issued consent, including the transfer of the object to sublease, at any time before the conclusion of the relevant agreement.

The law does not establish any special requirements for the issuance of consent, therefore the lessor has the right to express his will in any lawful way and on any conditions. However, the parties may stipulate in the contract the obligation of the lessee to obtain consent in a certain form or in a specific way.

The lessor has the right to issue a "general" consent, in which the tenant's right to conclude transactions on the transfer of the leased object or lease rights to third parties is not limited by anything. Thus, if it does not follow from the lessor's consent to sublease the property that he has approved a specific sublease agreement, the court may recognize that general approval has been obtained for concluding sublease agreements.

It should be borne in mind that if the lessor has agreed to transfer the property, in particular, to sublease, then the lessee has the right to conclude sublease agreements in relation to this property with other persons without further agreement with the lessor.

However, the lessor may provide, when issuing consent, special conditions limiting the specified right of the lessee.

Thus, when concluding an agreement with the tenant's right to conclude transactions provided for by n. 2 tbsp. 615 of the Civil Code of the Russian Federation, or when registering the lessor's consent to conclude a specific transaction, the parties, especially the lessor, are advised to agree:

• - on the form and methods of granting consent;
• - on the terms of consent limiting the tenant's right to carry out these transactions.

If the leased property is in common ownership, then in order for the lessee to transfer the leased object or lease rights to third parties, for example in sublease, he must obtain the consent of all property owners by virtue of Art. 246 of the Civil Code of the Russian Federation. Otherwise, the contract may be invalidated.

The transfer by the lessee of the leased object to third parties without the consent of the lessor is assessed by the courts as a material violation of the terms of the lease agreement. This will give the lessor the right to demand early termination of the contract in accordance with Art. 619 of the Civil Code of the Russian Federation.

The law does not contain requirements for the form of consent, therefore, the parties, guided by the principle of freedom of contract (clause 4 of article 421 of the Civil Code of the Russian Federation), can determine the form of consent in the contract. It is recommended to provide a written consent form, i.e. in the form of a document signed by the lessor (clause 1 of article 162 of the Civil Code of the Russian Federation). For the tenant, this will be proper evidence of the fact that the landlord has given consent, including in the event of a dispute in court (Articles 64, 65, 71 of the APC RF). The landlord is also interested in establishing a written consent form, since a lessee who has not received consent in this form will not be able to refer to any other actions of the landlord, indicating the approval of the concluded transaction.

The written consent of the landlord can be issued in several ways:

• - included by the parties in the text of the lease agreement at its conclusion;
• - further agreed by the parties in a supplementary agreement to the contract;
• - either the lessor can issue consent in the form of a separate document (letter) or put an appropriate inscription on the sublease agreement or its project.

The method of obtaining consent may be provided for by the agreement or chosen by the lessor directly when the lessee applies for its issuance.

The lessor's consent can be included in the text of the lease agreement and can be expressed, among other things, by agreeing on the terms of the tenant's right to enter into transactions provided for in paragraph 2 of Art. 615 of the Civil Code of the Russian Federation, without obtaining additional consent from the lessor. This condition releases the tenant from the obligation to obtain further the lessor's consent for each specific transaction.

The consent can be formalized by the lessor in a separate document after the conclusion of the lease agreement. It must be done on the landlord's letterhead with his signature or the signature of a person authorized by him. The lessee, upon obtaining such consent, is recommended to demand from the lessor a document confirming the authority of the person who signed it.

In the agreement, it is recommended to indicate the names of the parties, the date and number of the lease agreement, determine the lease object, as well as the name of the transaction for the transfer of lease rights or leased property to a third party, which we are allowed to "make by the lessor."

Consent can be obtained in the form of a written permission from the lessor, affixed to the document confirming the transaction. For example, the lessor can express in writing his consent to conclude a sublease agreement by making the appropriate inscription on the sublease agreement or its project and putting a signature under this text.

Sublease (sublease) consists in the lease by the lessee, with the consent of the lessor, of the leased property to a third party - the subleaseholder. This definition is based on the judicial interpretation of Art. 606 and 615 of the Civil Code of the Russian Federation (see the resolution of the Thirteenth Arbitration Court of Appeal dated 05.12.2008 in case No. June 28, 2010 No. 18AP-4383/2010 in case No. A76-25737 / 2009, resolution of the Twentieth Arbitration Court of Appeal dated April 29, 2010 in case No. case No. A68-8896 / 08-311 / 7).

The lessee in the original lease becomes the lessor in the sublease. The sublease agreement is governed by the same rules as the lease agreement, unless otherwise provided by law and other legal acts (clause 2 of article 615 of the Civil Code of the Russian Federation).

When concluding a sublease agreement, the sub-lessee is recommended to require the lessee to confirm that the lessor has agreed to conclude a sublease agreement. This is due to the fact that the sublease agreement, concluded without the consent of the lessor, is null and void by virtue of Art. 168 of the Civil Code of the Russian Federation as committed in violation of the requirements of the law - paragraph 2 of Art. 615 of the Civil Code of the Russian Federation.

In addition to the consent of the lessor when subletting the leased object, the parties must:

• - in the lease agreement, provide for a condition on the preservation of the sublease agreement in case of early termination of the lease agreement, if the lessor is interested in this (Article 618 of the Civil Code of the Russian Federation);
• - in the sublease agreement, correctly agree on the term of its validity and the purpose of using the leased object (Article 615 of the Civil Code of the Russian Federation).

The fate of the sublease agreement in the event of early termination of the lease agreement is determined by the content of the latter. In the absence of any conditions in it regarding the validity of the sublease agreement, the early termination of the lease agreement entails the termination of the sublease agreement concluded in accordance with it (clause 1 of article 618 of the Civil Code of the Russian Federation).

However, this rule is dispositive and allows for the possibility of including provisions in the lease agreement that differ from the rule stipulated in it. So, if the lessor is interested in the continued use of the leased object by the sublease, then it is in his interests to agree on a condition under which the early termination of the lease does not entail the termination of the sublease agreement concluded in accordance with it. In this case, the lessor under the terminated lease becomes the lessor under the sublease. The latter in this situation actually turns into a lease. There is no need to conclude a new contract.

A similar condition can be agreed upon in the sublease agreement. If the lessor agrees with such a condition (expressed, for example, by placing an appropriate clause on copies of sublease agreements), upon early termination of the lease agreement, the subtenant will become the lessee under the agreement. There is no need to conclude a new contract between the landlord and the sub-tenant. The lessor will not have the right to demand the return of the property from the sub-lessee (see the resolution of the Federal Antimonopoly Service of the Volga District of 30.08.2011 in case No. A12-17446 / 2010).

The provisions of the Civil Code of the Russian Federation on the lease do not provide for the procedure for the implementation by the sub-lessee established in accordance with paragraph 1 of Art. 618 of the Civil Code of the Russian Federation, the right to conclude a lease with him.

Arbitrage practice

Judicial practice proceeds from the fact that the specified norm does not provide for the obligation of the lessor to notify the subtenant of the termination of the lease agreement, as well as offer him to conclude a lease agreement. This means that in the event of termination of the sublease agreement due to the early termination of the lease agreement for the implementation of the provisions stipulated in and. 1 tbsp. 618 of the Civil Code of the Russian Federation, it is necessary to express the intention to conclude a lease agreement with the lessor. For example, he can send a letter to the landlord.

The parties to the sublease agreement, guided by the principle of freedom of contract (clause 4 of article 421 of the Civil Code of the Russian Federation), have the right to coordinate actions that contribute to the sublease's exercise of the right to conclude a lease agreement with him. So, it is in the interests of the sub-lessee to provide in the contract the obligation of the lessor (lessee under the lease agreement), in the event of early termination of the lease agreement, to immediately notify the sub-lessee about this.

If the lessor refuses to conclude a lease agreement, the subleaser has the right to apply to the court with a claim for compulsion to conclude an agreement (see the definition of the Supreme Arbitration Court of the Russian Federation No. VAS-17908/12 dated January 18, 2013). However, it should be borne in mind that such a possibility does not always exist. For example, a landlord cannot be forced to enter into a contract in the following cases:

• - the property is pledged and the pledged creditor refuses to lease it (see the definition of the Supreme Arbitration Court of the Russian Federation of 23.01.2014 No. VAS-19555/13);
• - the owner decides to demolish the building in which the leased premises are located (see the definition of the Supreme Arbitration Court of the Russian Federation of 07.12.2009 N ° 15395/09).

Condition for the purchase of the leased property grants the tenant the right to become the owner of this property upon the expiration of the lease term or before its expiration, subject to the payment of the entire redemption price stipulated by the contract.

The redemption of the leased property is a right, not an obligation, of the lessee, therefore, due to the rules on freedom of contract (Article 421 of the Civil Code of the Russian Federation), the lessor has no right to compel the lessee to acquire property and pay the redemption price.

At the same time, there is a judicial practice, according to which, if the tenant in good faith fulfilled his obligations under the contract with the right to purchase and fully paid the purchase price, he has the right to compel the lessor to conclude a sales contract in court.

When concluding a lease agreement with the option of purchase, the parties within the meaning of paragraph 1 of Art. 624 of the Civil Code of the Russian Federation, the following conditions should be agreed:

• - on the transfer of the leased property to the ownership of the lessee;
• - redemption price.

When the terms of redemption are included in the agreement, the parties should take into account that the law may define cases in which the redemption of leased property is prohibited (clause 3 of article 624 of the Civil Code of the Russian Federation). So, paragraph 3 of Art. 5 of the Federal Law of 23.08.1996 No. 127-FZ "On Science and State Scientific and Technical Policy" prohibits the purchase of property leased from state scientific organizations established by the Government of the Russian Federation or federal executive bodies.

It must be borne in mind that the redemption of the leased property can take place not only on the basis of the condition included in the contract in accordance with Art. 624 of the Civil Code of the Russian Federation. The cases, procedure and peculiarities of the acquisition of property by tenants in ownership may be provided for by law. In particular, Federal law from 21.12.2001 No. 178-FZ "On the privatization of state and municipal property" the procedure for privatization of state and municipal property in general is determined, and the Federal Law of 22.07.2008 No. 159-FZ "On the peculiarities of alienation of real estate owned by the subjects of the Russian Federation Federation or in municipal ownership and leased by small and medium-sized businesses, and on amending certain legislative acts of the Russian Federation, "special rules have been established for the acquisition of state or municipal property, the tenants of which are small and medium-sized businesses.

To properly agree on the conditions for the transfer of the leased property to the ownership of the lessee, the parties must provide in the lease agreement that the property is redeemed on the basis of the same agreement. This is due to the presence in judicial practice of the position according to which the terms of the lease agreement on the tenant's preemptive right to purchase the property in the event of its sale do not define the agreement as a lease agreement with the right to purchase.

In addition, the term of the agreement on the conclusion in the future of the agreement for the sale and purchase of the leased property will also not indicate the agreement on the terms of its redemption.

• Article-by-article commentary to the Civil Code of the Russian Federation, part two: in 3 volumes. Vol. 1 / N. A. Barinov [and others]; ed. P.V. Krasheninnikov. Moscow: Statut, 2011.
• Problems of the development of private law: collection of articles. articles for the anniversary of Vladimir Saurseevich Ema / S. S. Alekseev [and others]; otv. ed. E. A. Sukhanov, N. V. Kozlova. Moscow: Statut, 2011.
• Braginsky L. I., Vitryansky V.V. Contract law. Property transfer agreements. 4th ed., Stereotyped. M .: Statut, 2002. Key. 2.

It is impossible to transfer property for an unlimited amount free of charge, just as expensive gifts between business partners are illegal. The law permits gifts no more than 3 thousand rubles, everything else donated must be drawn up with an appropriate contract and carried out in the accounting department.

Limits are lifted in some situations stipulated by law:

• property is transferred to a budgetary or public structure;
• gifting a religious organization;
• assets are received by a non-profit structure, a charitable foundation, etc.

FOR YOUR INFORMATION! The organization also has the right to make a gift to an individual, but only if he is not in a public office, does not work in a bank or in social structures (medical, educational, etc.).

As for receiving something as a gift, the organization can be gifted, even for a large amount:

• an individual;
• state structure;
• municipal organization.

Key points of the agreement

Any property transfer agreement must include such important clauses:

1. Description of the subject of the transaction.
2. Personal data of both parties in full.
3. The reasons for this kind of transfer of rights to things.
4. Prices, if any.
5. Obligations of the parties in relation to each other.

When transferring ownership of real estate, the transaction must be registered with government agencies.

Donation accounting

The accounting department of both the giving and receiving party is obliged to fulfill the registration of donated assets prescribed by law.

From the point of view of accounting, the company, having given part of its property as a gift, thereby reduced its assets. With the disposal of some share of fixed assets, the economic efficiency is theoretically reduced. Therefore, such an operation is carried out according to expense items (clause 2 of PBU No. 10/99).

IMPORTANT! The cost of a gift and spending on its gratuitous transfer are not equal to the cost of income tax (Article 270 of the Tax Code of the Russian Federation).

The company, which accepted the property as a gift, thereby increased its assets. The cost of the income obtained in this way should be reflected in the main indicators, taking into account the accrual of depreciation (paragraph 47 Methodical recommendations).

In order to correctly determine the value of donated assets, you need to take its market equivalent, which is current at the date of registration of funds (clause 10 of Accounting Rules No. 6/01), plus additional costs associated with the introduction of ownership, if the company incurred them (for example, for transportation, registration, etc.)

In terms of postings, accounting will look like this:

• debit 08, account 98 "Gratuitous receipts" - the sum of the value of assets is entered;
• debit 08, account 60 "Associated expenses" - expenses associated with the transfer of assets are entered.

Registration under the contract

The procedure for drawing up the Agreement is regulated by Article 161 of the Civil Code of the Russian Federation and the Law on Privatization. It is compiled by specialists from private organizations or the administration.

It should include items:

1. Information about the real estate object (address, footage, number of rooms, etc.).
2. Data of the parties to the participants (employers and local governments).
3. Information about participants in the transaction.
4. Information about the owner of municipal housing.
5. Information about the document on the basis of which the tenants live in the apartment (Order, Social Employment Contract).
6. Information on the distribution of shares (when registering an apartment in shared ownership).
7. Responsibility of the parties.
8. Conditions for transferring housing to individuals.

The document is sealed, stamped by the administration and certified by the signatures of the parties. The number of copies must match the number of those enclosing it.

After the procedure, each participant in the process should have the original in their hands.

What does the apartment privatization agreement look like? You can see the photo here.

The transfer of property between legal entities must be registered by contract. The law provides for this in two forms of drawing up such a document.

1. Donation agreement. It is concluded if the provision of property does not require any reciprocal obligations. The gifted company, thus, receives income in the amount of the value of the property received by it gratuitously, if it were sold. At the same time, the donor makes the expense.

With regard to taxation, such an agreement provides for the receipt of a profit by the donor, which implies tax. The amount of the tax base is calculated by market price but must not be less than the residual value recorded in the donor's books.

The transaction ends with the execution of the acceptance certificate.

2. Contract for gratuitous use (loan). According to this form of transfer, assets are transferred free of charge, but with the condition of their return in the same form, of course, taking into account the envisaged depreciation. At the same time, it is not necessary to stipulate the transfer period in the contract; it can be considered valid until the organization is liquidated or for life. Formally, the donated party does not take ownership of the transferred property, but in fact can use it as its own.

Conditions of confinement

To be able to conclude an agreement, a number of conditions must be met:

• the presence of registration at the place of stay of persons living at this address. Temporarily registered in the procedure do not participate;
• the opportunity for these persons to participate in privatization, since, according to the law, every citizen has the right to participate in the process once;
• voluntary consent of all registered on this living space to participate in the process;
• compliance with the status of the dwelling the possibility of privatization, since there is a category of housing, which is prohibited by law to transfer ownership to citizens.

The right to re-privatization remains with the citizens who initially participated in the process until the age of majority. A statement of consent from minors registered in the apartment is written by their parents or legal representatives. Children under 18 years of age are the full owners of the share and are included in the contract on a mandatory basis.

You can find out about whether it is possible to privatize a room in a communal apartment or a hostel, emergency or dilapidated housing, a serviceman's apartment, cooperative or service housing, as well as an apartment with debts or a share, you can find out from our articles.

Legal nuances

This document is not subject to certification by a notary, but it must be registered with the relevant government authorities. Currently, registration can be done at the one-stop shop at the MFC.

The contract is indefinite and is necessary for the further receipt of documents of title in the state registration authorities. After registration, it is submitted to Rosreestr, and on its basis, each participant in the process is issued a Certificate of ownership of an apartment or its share.

60 calendar days are allotted for registration of the Certificate of Ownership. Failure to comply with these deadlines can become an obstacle to the finalization of the transaction.

Termination

The concluded Agreement can be terminated if the owners decide that it is more profitable for them to live in municipal housing or the transfer of ownership was carried out with violations. This happens in the course of the reverse privatization process and is called de-privatization (deprivatization).

If a citizen who has registered ownership of municipal housing decides to return it to the state, he terminates the transaction. In this case, the document is considered invalid, and the person loses all rights.

To do this, you must submit an application to the local government and obtain a termination permit.

Termination can be submitted to the MFC. If the authorities refuse, the procedure is carried out by filing a claim with the court.

At the same time, termination is not possible if the following conditions are met:

1. One of the owners is against termination.
2. An encumbrance was imposed on the living space in the form of a pledge from a credit institution.
3. In privatization involved a minor citizen.
4. The owner owns another living space.
5. New tenants are registered in the apartment after the conclusion of the contract.

If the contract is terminated, its re-conclusion on this premises will be impossible.

In addition, the person who participated in the termination loses his rights. It will not be possible to re-participate in the privatization of even another dwelling.

Grounds for invalidation

If any condition for concluding a deal is violated, it may be invalidated. The term for filing a claim is one year.

An agreement on the transfer of an apartment to the ownership of citizens during privatization may be invalidated on the following grounds:

• some of the participants were misled;
• document issued under pressure;
• incapacitated persons participated in the process;
• some of the registered ones did not take part in the privatization and did not receive a share;
• at registration were the rights of citizens under 18 are violated.

On these grounds, a claim for recognizing a document as invalid can be filed by owners, people registered at this address at the time of privatization, government agencies, guardians of incapacitated and underage citizens, the prosecutor's office, and guardianship authorities.

Compliance with all legal conditions when concluding an agreement on the privatization of residential premises will help you avoid further troubles in using this premises, as well as making transactions for its alienation.