Under a lease agreement for non-residential premises, the lessor undertakes to transfer the non-residential premises for a fee into temporary possession and use or for temporary use to the lessee.
It is customary to combine the contractual terms into certain groups according to their legal meaning. The most widespread are three groups of conditions: essential, ordinary and accidental. one
Consider the essential conditions of the civil contract listed in par. 2 p. 1 art. 432 GK:
1) a condition on the subject of the contract, which is an essential condition for lease contracts for non-residential premises.
When renting non-residential premises, the contract must indicate which premises are being leased, its location, the total area of \u200b\u200ball leased premises and each of them separately for lease in accordance with the technical passport and certificate of the BTI, and other data technical characteristics premises and its condition. If the rented premises consist of more than one premises, as well as if some of the rented premises are main and others are auxiliary, then a plan of the premises should be attached to the contract, indicating all these details and footage.
The inclusion of data in the lease agreement that makes it possible to unambiguously determine which premises are being leased is essential, since The Civil Code of the Russian Federation (clause 3 of Art. 607) stipulates the question of whether the lease agreement will be considered concluded.
ZAO Brigada signed a lease agreement with OOO Gamrok and provided the latter with a 56 sq. M. meters. The agreement concluded between the parties indicated the address of the building in which the premises were provided. There was no other information to accurately determine the premises being transferred. In the future, instead of the agreed 56 sq. meters 000 "Gambler" was provided with an area of \u200b\u200b30 square meters. meters. The tenant applied to the Arbitration Court to protect his rights. But the court refused to protect the Lessee's interests, recognizing that the contract concluded between the parties was invalid. The reason for this court decision was the fact that the contract did not contain the characteristics of the premises being leased out, as well as its technical documentation. This means that it is impossible to determine from the concluded agreement which premises were supposed to be transferred to the Tenant. Therefore, in accordance with part 3 of Article 607 of the Civil Code of the Russian Federation, the Arbitration Court, this agreement was declared invalid.
In addition, a technical passport of the premises (or explication) is usually attached to the lease agreement. This document contains all the characteristics of the transferred premises (area, number of rooms, location of stairs, doors, windows, etc.), as well as its schematic layout.
V.V. Vitryansky claims that the subject of the lease agreement is not at all reduced to the property being leased. The subject of the contract, or rather, the subject of the obligation arising from the contract, represents actions (or inaction) that the obligatory party must perform (or, accordingly, refrain from performing them).
If you adhere to this point of view, then all the terms of the contract can be considered essential, and V.V. Vitryansky tries to introduce the rights and obligations of the parties into the subject of the contract. However, it would be more correct to consider that the subject of the contract is the object of transfer, i.e. non-residential premises.
2) conditions that are named in the law or other legal acts as essential or necessary for contracts of this type.
These conditions for lease agreements for non-residential premises include those provided for in clause 1 of Art. 654 of the Civil Code of the Russian Federation, the condition according to which the lease agreement for non-residential premises must provide for the amount of rent.
If the lease agreement for non-residential premises does not contain the size, procedure, conditions and terms for paying the rent, the lease agreement for non-residential premises is considered not concluded and does not entail any legal consequences. This requirement distinguishes a non-residential lease agreement from general rules about rent. According to the general provisions on lease, in cases where the lease agreement does not specify the amount, procedure, conditions and terms of payment of the rent, the parties must be guided by the terms of rent, usually applied when renting similar property under comparable circumstances (Article 614 of the Civil Code of the Russian Federation).
In Art. 654 of the Civil Code of the Russian Federation provides for the obligation to include in the lease agreement for non-residential premises a condition on the amount of rent, although it does not include any special rules regarding the form of rent, which are provided for in Art. 614 of the Civil Code of the Russian Federation, as well as on the procedure and deadline for making lease payments. In this regard, the general provisions of the lease (Article 614 of the Civil Code of the Russian Federation) remain in effect.
The rent can be paid in the form:
- a) payments determined in a fixed amount, made periodically or at a time;
- b) the established share of products, fruits or income received as a result of the use of the leased non-residential premises;
- c) the provision of certain services by the lessee;
- d) transfer of the thing stipulated by the contract by the lessee to the lessor, into ownership or lease;
- e) imposing on the lessee the costs of the improvement of the leased non-residential premises (current, overhaul).
This list is not exhaustive. The most common form of payment is monetary, in the form of fixed payments made periodically or at a time. The parties to the agreement may even provide for a combination of several forms of rent, which essentially means the transformation of a lease agreement into a mixed agreement (clause 3 of Article 421 of the Civil Code of the Russian Federation), combining the features of a lease and, for example, a sale or purchase or a service agreement.
In addition to this form, the parties can agree on other forms of rent, for example, in the form of a part of the tenant's profit from the operation of the non-residential premises leased out.
If a specific form of rent is not provided for in the contract, the rent must be determined in a fixed amount, payable once or periodically, depending on the term of the lease.
The main thing is that the reciprocal provision of the lessee, received by the lessor as rent, would have a monetary value in the contract, which would make it possible to speak of an agreement between the parties regarding the amount of the rent.
Although, as can be seen from the practice of the Arbitration Court, the parties do not correctly interpret the rule on the form of rent.
For example, a joint-stock company (lessor) applied to the Arbitration Court with a claim against a limited liability company (lessee) to recognize the non-residential premises lease agreement as not concluded and to evict the defendant from the occupied non-residential premises.
By the decision of the court of first instance, upheld by the decision of the appeal instance, the claim was satisfied.
In the cassation appeal, the defendant referred to the existence of a lease agreement for the disputed non-residential premises and asked to recognize this agreement as concluded.
Having examined the contract and the circumstances of the dispute, the cassation court found that disagreements arose over the wording of the terms of the contract on the amount of rent.
By virtue of paragraph 1 of Art. 654 of the Civil Code of the Russian Federation, a lease agreement for a building or structure (non-residential premises) must provide for the amount of rent. In the absence of a condition on the amount of rent agreed by the parties in writing, the lease agreement for a building or structure (non-residential premises) shall be deemed not concluded.
The defendant believed that this requirement of the law was complied with by the parties, since, in accordance with clause 2.4 of the agreement, the Lessee is obliged to pay utility and other targeted services as rent in a timely manner.
However, such a wording cannot be considered as establishing the form and amount of the rent, since the Landlord does not actually receive a return grant for the non-residential premises leased out. Payment by the Lessee of utilities does not in itself mean the cost of the lease agreement.
According to paragraph 1 of Art. 654 of the Civil Code of the Russian Federation to the lease agreement for a building or structure (non-residential premises), the rules for determining the price provided for in paragraph 3 of Art. 424 of the Civil Code of the Russian Federation.
Taking into account this provision of the law, the court of cassation indicated that the controversial agreement could not be considered concluded and, therefore, the decision of the court of first instance was justified.
From this example, it can be seen that the imposition of utility bills on the tenant cannot be regarded as a form of rent.
When renting non-residential premises owned by the state or municipal enterprises, the rent calculation is carried out in accordance with the methodology for calculating rental rates, approved by the decree of the head of the city administration.
The rent can be paid at any time specified in the contract: once a year, quarter, month, week, day, etc. If the tenant significantly violates the terms for making the rent, the landlord has the right to demand from him the early payment of the rent within the time period set by the lessor (Clause 5 of Article 614 of the Civil Code of the Russian Federation). You can demand an early payment of the rent for no more than two consecutive periods. A significant violation of the term should be interpreted in the same way as a significant deterioration in the conditions of use or the condition of the leased property (clause 2 of article 450 of the Civil Code of the Russian Federation).
However, the lease agreement may also establish other rules, for example, on the prohibition to demand early payment of the rent or, on the contrary, on the possibility of demanding such payment not only in the event of a significant violation of the terms or for more than two consecutive terms, etc.
Unless otherwise stipulated by the lease agreement, the amount of the rent may be changed by agreement of the parties within the time frames stipulated by the agreement, but not more often than once a year (clause 3 of article 614 of the Civil Code of the Russian Federation).
3) the conditions in respect of which, upon the application of one of the parties, an agreement must be reached.
The need for such agreements arises when there is a corresponding condition that is not specified in a law or other document, and also does not explicitly express the nature of this agreement.
For example, the requirements for the quality of finishing of non-residential premises leased out are not included in the essential terms of the lease agreement by the current legislation and do not express the nature of this agreement. Therefore, if the tenant wants to rent this premises and use it as an office, then he may demand to include in the lease a condition on the aesthetic appearance of the structural elements of the leased premises (painting, pasting). In this regard, this requirement of the lessee becomes an essential condition, without which a specific contract cannot be concluded and, according to the condition, it is necessary to conduct proper agreements so that they then find a proper (worthy) reflection in the text of the contract. In addition to this example, an essential condition at the request of one of the parties can be any condition (both the term for increasing the rent, and the conduct of major repairs, etc.).
We now turn to consideration of the usual and random contractual terms.
The usual conditions do not need to be agreed by the parties, they are provided for in the relevant regulations and automatically come into effect at the time of the conclusion of the contract. This does not mean that the usual terms and conditions operate against the will of the parties to the contract. Like other terms of a contract, normal terms are based on the agreement of the parties.
Only in this case, the agreement of the parties to subordinate the contract to the usual condition contained in regulatory enactments is expressed in the very fact of concluding a contract of this type. In this case, if the parties have reached an agreement to conclude this agreement, they thereby agreed to the terms and conditions that are contained in the legislation on this agreement.
For example, when concluding a lease agreement for non-residential premises, the parties agree to the condition provided for in Art. 211 of the Civil Code of the Russian Federation, that the risk of accidental loss or accidental damage to property (non-residential premises) is borne by its owner - the lessor.
If the parties do not wish to conclude an agreement on the usual terms, they may include in the content of the agreement clauses that cancel or change the usual terms, if the latter are determined by a dispositive norm.
The parties to a lease agreement for non-residential premises may agree that the risk of accidental loss or accidental damage to property (non-residential premises) is borne by the tenant, not the lessor.
Conditions that modify or supplement the usual conditions are called random. They are included in the text of the agreement at the discretion of the parties. Their absence, as well as the absence of the usual conditions, does not affect the validity of the contract. However, unlike ordinary ones, they acquire legal force only if they are included in the text of the treaty. Unlike essential ones, the absence of a random condition only in the event entails the recognition of this agreement as not concluded if the interested party proves that it demanded the agreement of this condition. Otherwise, the contract is considered concluded without a random condition.
If, when agreeing on the terms of the contract for the lease of non-residential premises, the parties did not resolve the issue of cases of increased rent, the contract is considered concluded without this random condition. However, if the tenant proves that he offered to negotiate an increase in rent, only with an increase in utility bills or in the case of indexation, but this condition was not accepted, the lease agreement for non-residential premises will be considered not concluded. one
In any agreement, groups of conditions are distinguished that determine the obligations of the parties, respectively, in a lease agreement for non-residential premises - the obligations of both the lessor and the lessee.
For example, the conditions stipulating the obligations of the lessor usually include the conditions: about the rented non-residential premises, about the procedure and terms of its provision to the tenant. The terms of the contract governing the use of leased non-residential premises, the amount of lease payments, the procedure and terms for making them, usually determine the obligations of the tenant.
For the purpose of studying a lease agreement, the terms of this agreement can be divided into two groups:
conditions governing primarily the obligations of the lessor;
conditions that determine the main obligations of the tenant.
The specified basic obligations of the lessor and the lessee, respectively, are opposed by the rights of claim of the counterparty. The consequences of non-performance or improper performance on the part of the lessor or lessee of the relevant terms of the contract are also important.
Compared to the content of the usual (general rules) of the lease agreement, the content of the lease agreement for non-residential premises has not undergone major changes. The landlord and the tenant under a lease agreement for non-residential premises have general rights, obligations and responsibilities of the parties to the lease agreement, although the civil legislation specifies some of the ways of fulfilling these obligations. one
Considering the content of the lease agreement for non-residential premises, it is necessary to refer to the rights, obligations and responsibilities of the lessor and tenant.
The lessor, in pursuance of the concluded non-residential premises lease agreement, is obliged:
1) provide the tenant with non-residential premises under a deed of transfer in a condition that complies with the terms of the lease agreement and the purpose of the non-residential premises (clause 1 of Art. 611 of the Civil Code of the Russian Federation).
The peculiarities of this obligation in relation to the lease agreement for non-residential premises is that the fact of transfer of the object must be confirmed by an act of acceptance and transfer (or other transfer document) signed by the parties, which must contain reference, material and technical information about the non-residential premises being leased.
Evasion of one of the parties from signing a document on the transfer of non-residential premises on the terms stipulated by the contract is considered as a refusal, respectively, of the lessor to fulfill the obligation to transfer the non-residential premises, and the tenant - from accepting this premises.
The condition of the non-residential premises to be leased must be determined by the lease agreement. If this is not done, the state of the non-residential premises is determined by its purpose, which, in turn, can also be established by an agreement or flow from the purposes for which this non-residential premises is usually used. But in any case, non-residential premises must be transferred without flaws, in one way or another, preventing its use for its intended purpose.
Non-residential premises must be leased out within a specified period, which must be specified in the lease agreement. If the term for transfer has not been established by the contract, the non-residential premises shall be transferred within a reasonable time. In case of violation of the rule on the term for the provision of non-residential premises for rent, the tenant has the right to claim this non-residential premises in accordance with Art. 398 of the Civil Code of the Russian Federation and demand either compensation for losses, or termination of the contract and compensation for losses caused by its non-performance (clause 3 of article 611 of the Civil Code of the Russian Federation).
The landlord is responsible for any deficiencies in the rented non-residential premises, regardless of whether they prevent the use of the non-residential premises in whole or only in part. In principle, responsibility can arise for the smallest defect. Responsibility does not come only for those shortcomings that:
- a) agreed upon by the lessor already at the conclusion of the lease agreement, naturally, in the form in which the agreement should be clothed;
- b) known in advance to the tenant (who, for example, previously rented non-residential premises or knew about the shortcomings from the media);
- c) should have been discovered by the tenant during the inspection of non-residential premises (obvious shortcomings).
The landlord is responsible only for those shortcomings that existed in the rented non-residential premises before the conclusion of the lease agreement, and did not arise later.
According to clause 1 of article 612 of the Civil Code of the Russian Federation, the lessor is responsible for the shortcomings of the leased non-residential premises, even if at the time of the conclusion of the lease he did not know about these shortcomings. Otherwise, the mention that the lessor is responsible for the shortcomings, regardless of whether he knew about them or not, is unnecessary in view of the presence of a general rule enshrined in paragraph 3 of Art. 401 of the Civil Code of the Russian Federation.
The spread of the beginning of the risk to liability for the shortcomings of the non-residential premises leased out can be explained by the fact that the lessor, as a rule, is the owner of the corresponding non-residential premises and bears the risk of accidental death or damage (Article 211 of the Civil Code of the Russian Federation), including the risk of him of certain shortcomings.
According to clause 1 of article 612 of the Civil Code of the Russian Federation, if deficiencies are found in non-residential premises for which the lessor is responsible, the lessee has the right, at his choice:
- a) demand from the lessor either the gratuitous elimination of the defects of the non-residential premises, or a commensurate reduction of the rent, or reimbursement of his expenses for the elimination of the defects of the non-residential premises;
- b) directly withhold the amount of expenses incurred by him to eliminate these deficiencies from the rent, having previously notified the lessor about this. In this case, the notification is necessary so that the lessor learns about the reasons why the rent is not paid to him in full;
- c) demand early termination of the agreement, the choice of one of the opportunities provided to him by the tenant is completely free and is not associated with obtaining the consent of the lessor.
The terms of the relevant requirements and notifications are determined according to the rules of Art. 314 of the Civil Code of the Russian Federation.
The Landlord, notified of the tenant's requirements or of his intention to eliminate the shortcomings of the non-residential premises at his own expense, may immediately replace the non-residential premises provided to the tenant with another similar non-residential premises that are in proper condition (if a similar premises are owned by the Landlord, as well as, if the given premises are suitable for the tenant (at the location, footage), or eliminate the shortcomings of the non-residential premises free of charge.If the tenant requires early termination of the contract, he cannot be offered to replace the rented non-residential premises. 612 of the Civil Code of the Russian Federation, must comply with the content of this requirement.
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. Such reimbursement will be necessary in the overwhelming majority of cases when the rented non-residential premises are replaced or their deficiencies are eliminated, since the non-residential premises, at least for a short period of time, are out of use by the tenant and he may lose part of the profit from its use. The claim for damages is also inevitable in case of early termination of the contract. As for the reimbursement of the cost of eliminating the deficiencies at the expense of the rent or a commensurate reduction of the latter, compensation for losses can be claimed only when the amount of the rent is insufficient to cover the losses.
2) warn the tenant about all third parties for the leased non-residential premises (easement, mortgage, mortgage), etc. (Clause 2, Article 613 of the Civil Code of the Russian Federation).
The transfer of non-residential premises for rent is not a basis for terminating or changing the rights of third parties to this non-residential premises (clause 1 of article 613 of the Civil Code of the Russian Federation). Such rights remain and after they can be quite broad in scope, for example, the right of economic management or the right of operational management. Naturally, in some cases the tenant, if he knew about the rights of third parties, would never conclude a lease agreement. Therefore, compliance by the landlord with the obligation to notify the tenant of the rights of third parties is necessary in order to ensure the smooth use of the rented non-residential premises.
The legislation does not contain a list of third-party rights that the lessor must warn the tenant about. It only says that these are rights to non-residential premises and that they belong to third parties and, among others, include easements and mortgage (pledge) rights. Examples of rights of third parties given by law refer to property rights. The landlord is obliged to notify the tenant about the presence of all other property rights to the rented non-residential premises. This obligation follows from the essence of the real right, which is always directed to non-residential premises. one
As for the rights of obligation, then about them, if they are directed to a rented non-residential premises, the tenant must be notified. These rights may include the rights of the lessee under another lease. After all, the buyer, in the end, will become the new owner of the non-residential premises - the lessor (Article 617 of the Civil Code of the Russian Federation), whose personality is of great importance for the tenant. As for several lease agreements, they can coexist with each other, but only if there are no two or more among them that provide tenants with the right to own non-residential premises. However, there may be several lease agreements that give tenants only the use of non-residential premises (for example, the warehouse is used by tenants at different times). If two or more lease agreements collide, each of which grants the tenant the right to own the rented non-residential premises, then primacy is given to only one of the tenants according to the rules of Art. 398 of the Civil Code of the Russian Federation.
If the lessor fails to fulfill the obligation to notify the tenant of the rights of third parties to the rented non-residential premises, the tenant has the right to demand a reduction in the rent or termination of the contract and compensation for losses. The reduction in rent should be proportional to the extent to which the existence of the rights of third parties infringes upon the tenant's right to use. Reimbursement of losses upon termination of a lease agreement does not depend on the type and scope of the third party's rights to non-residential premises.
3) carry out, at their own expense, major repairs of the non-residential premises leased out, unless otherwise provided by law, other legal acts or a lease agreement (clause 1 of article 616 of the Civil Code of the Russian Federation).
Overhaul is understood as such restoration of the main parts (structural elements) of a rented non-residential premises, without which the latter cannot be used for its intended purpose.
The term for the overhaul must be established by the contract. If this deadline is not set or there is an urgent need for major repairs, it must be done within a reasonable time.
Repairs must be carried out at the expense of the lessor and his forces or by the forces of persons involved. The relationship of the parties at the time of the overhaul must be settled by a lease agreement or an additional agreement to it. The latter, in particular, may establish the tenant's obligation to suspend or restrict the use of the rented non-residential premises during major repairs or his right to require the lessor to provide a similar non-residential premises during the repair.
The situation is more complicated when the lease is silent about how the relations of the parties should be built during a major overhaul. This situation is not directly regulated by the Civil Code of the Russian Federation. Meanwhile, overhaul of a rented non-residential premises may significantly infringe on the rights of the tenant. Therefore, if a non-residential premises were transferred in a state when it requires major repairs, then it was transferred with defects for which the lessor is responsible according to the rules of Art. 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 of his choice:
- a) make major repairs as provided for by the contract or caused by an urgent need, and collect from the lessor the cost of repairs or set them off against the rent;
- b) demand a corresponding reduction in rent;
- c) demand early termination of the contract and compensation for losses, by the lease agreement, any of these rights may be excluded or limited.
- 4) reimburse the lessee for the cost of inseparable improvements made with the consent of the lessor and at the expense of the lessee, unless otherwise provided by the lease agreement (clause 2 of article 624 of the Civil Code of the Russian Federation).
Inseparable means such improvements that cannot be separated from the rented non-residential premises without causing harm to it. Since the Civil Code of the Russian Federation does not make any reservations about the amount of such harm, it should be considered that improvements will be inseparable, which cannot be separated without causing harm to non-residential premises in any amount.
The lessee is entitled to such a refund only if two conditions exist simultaneously:
- a) the consent of the lessor to make inseparable improvements. Consent can be given both in the lease itself, and separately after its conclusion in the form provided for the lease itself. If the nature and scope of improvements are not specified in such an agreement, it should be considered that any improvements are allowed that do not change the purpose of the rented non-residential premises;
- b) using the renderer's own means to produce improvements. The lessee cannot use the lessor's funds to make improvements, which follows from paragraph 4 of Art. 623 of the Civil Code of the Russian Federation. According to the rule stipulated in it, any improvements to the rented non-residential premises made from depreciation deductions from this non-residential premises are the property of the lessor. Therefore, to be eligible for any improvements, the landlord must specifically transfer these royalties to the tenant. However, such deductions always exist in an impersonal form. Consequently, any transfer of funds to make improvements to the rented non-residential premises may entitle the lessor to such improvements.
As for the use of third-party funds, it can be considered legal, provided that these funds are provided in the ownership of the tenant.
Separable improvements made by the lessee are his property, unless otherwise provided by the lease agreement. Separable improvements are such improvements of a non-residential premises that can be separated without damaging it (deteriorating its condition). At the end of the lease, such improvements can be detached and retained by the tenant.
The cost of inseparable improvements to the rented non-residential premises made by the lessee without the consent of the lessor shall not be refunded, unless otherwise provided by law.
The obligations of the lessor to provide a non-residential premises in proper condition under the deed of transfer and to warn the tenant about the rights of third parties are imperative. Responsibilities for the production of major repairs and reimbursement to the tenant of the cost of inseparable improvements are dispositive.
Let's now turn to the responsibilities of the tenant. In accordance with the terms of the concluded agreement, the lessee is obliged to:
1) use the rented non-residential premises in accordance with the terms of the lease agreement, and if such conditions are not specified in the agreement, then in accordance with the purpose of the non-residential premises (clause 1 of Article 615 of the Civil Code of the Russian Federation).
The tenant must use the non-residential premises himself. If he allows the use of third parties without the consent of the lessor, he violates his other obligation, provided for in paragraph 2 of Art. 615 of the Civil Code of the Russian Federation. The purpose of the non-residential premises must be determined by the contract, otherwise the non-residential premises must be used for their usual purpose arising from its essence.
If the tenant uses the non-residential premises not in accordance with the terms of the lease agreement or the purpose of the non-residential premises, the lessor has the right to demand early termination of the agreement and compensation for damages (clause 3 of article 615 of the Civil Code of the Russian Federation). Responsibility for violation of the terms of use or designation of non-residential premises occurs in the form of damages, and only if the tenant is guilty, since if the conditions of use are violated by accident, clause 4 of Art. 614 of the Civil Code of the Russian Federation. In this situation, the lease cannot be terminated early. real estate civil legal lease
2) the amount, procedure, conditions and terms of payment of the rent are determined by the contract. The establishment of these characteristics of rent in the law, and even more so in the bylaw and the Civil Code of the Russian Federation does not provide. Therefore, if the size, procedure, conditions and terms of payment of the rent are established by any normative act, the lease agreement must necessarily contain a reference to it.
The lease agreement may contain rules both that the rent is firm and not subject to revision at all, and that either party to the agreement may unilaterally demand a change in the rent, and if the other party refuses to change the rent, the agreement is subject to early termination, if such rules are not provided for by the contract, the rent can be changed only by agreement of the parties. Refusal of any of the parties to revise the amount of rent even after the deadline established by paragraph 3 of Art. 614 of the Civil Code of the Russian Federation, does not provide the other party with the right either to force such a revision in court, or to terminate the lease agreement ahead of time, since such measures are not provided for by the Civil Code of the Russian Federation. Thus, the establishment by law of the term for revising the amount of rent is of practical importance only if the possibility of revising is secured by the contract and provided with sanctions in the event that any of the parties refuses to do so.
The tenant has the right to demand a reduction in the rent if, due to circumstances for which he is not responsible, the conditions of use stipulated by the lease agreement or the condition of the non-residential premises have significantly deteriorated (clause 4 of article 614 of the Civil Code of the Russian Federation). The granting of such a right to the lessee is due to the fact that the lessor, as the owner of the non-residential premises leased out, bears the risk of accidental loss or damage, unless otherwise provided by law or contract (Article 211 of the Civil Code of the Russian Federation). Deterioration due to accidental reasons of the condition of non-residential premises rented out, the risk of the owner. As for the deterioration of the conditions of use, which act as circumstances external to the subject of the lease agreement, then in relation to them we should talk about the risk of an accidental impossibility of fulfilling the agreement of worsening the conditions of such performance. Imposing this risk on the landlord is also quite logical, if you remember his main responsibility - to provide non-residential premises for use and ensure their peaceful use throughout the entire term of the contract.
A decrease in the amount of rent can be required not with any deterioration in the conditions of use or the condition of non-residential premises, but only with a significant one. Such a deterioration should be recognized as significant when the lessee is largely deprived of what he had the right to count on when concluding the lease agreement (clause 2 of article 450 of the Civil Code of the Russian Federation).
The law may establish a rule different from the one provided for in paragraph 4 of Art. 614 of the Civil Code of the Russian Federation. The Civil Code of the Russian Federation does not mention the possibility of establishing a different rule by an agreement. However, given the fact that in accordance with paragraph 1 of Art. 614 of the Civil Code of the Russian Federation, the procedure, conditions and terms for paying rent are determined by the lease agreement, the latter may establish that the amount of rent is not revised even with a significant deterioration in the conditions of use or the condition of non-residential premises.
In case of violation of this condition by the tenant, the Landlord has the right to apply to the court with the demand for the rent, as well as to collect penalties from the tenant.
3) upon termination of the lease, return the non-residential premises 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 (part 1 of article 622 of the Civil Code of the Russian Federation).
The state of the returned non-residential premises is established by the contract. The contract may provide for special requirements for such a return separately. If this is not done, the non-residential premises must be returned in the condition in which they were received, taking into account the normal wear and tear that the rented non-residential premises would have undergone during its normal use for the purpose determined by the contract during the term of the latter.
If the tenant has not returned the rented non-residential premises or returned it untimely, the lessor has the right to demand the payment of the rent for the entire period of delay. In the event that the specified fee does not cover the losses caused to the lessor, he may demand their compensation. The convenience of this rule lies in the fact that the landlord, in the event of late return of the rented non-residential premises, does not need in the overwhelming majority of cases to prove the amount of losses incurred by him, which is sometimes very difficult. It is enough just to demand payment of the rent for the time of delay.
In the event that a contract provides for a penalty for the late return of a rented non-residential premises, losses may be recovered in excess of the penalty (penalty), unless otherwise provided by the contract.
Under the current repair is meant the elimination of shortcomings of non-residential premises, not associated with the replacement of the main (main) components (parts, assemblies, structures). Current repairs, in contrast to major repairs, as a rule, do not increase the cost of rented non-residential premises and do not eliminate its wear and tear. At the same time, not carrying out current repairs (as well as major ones) makes it impossible or significantly complicates the use of non-residential premises for their intended purpose.
Maintenance of non-residential premises in good condition should be distinguished from current repairs, that is, such maintenance that allows the use of non-residential premises at any time. In this case, we are talking about the physical health of the rented non-residential premises, which can be maintained without termination of its intended use. Maintenance of non-residential premises in good condition is due to internal, inherent (technical) reasons. So, rented non-residential premises must be cleaned regularly.
In addition to carrying out routine repairs and maintaining the non-residential premises in good condition, the tenant must bear the costs of maintaining the rented non-residential premises. one
5) without the written consent of the lessor, not to sublet the leased non-residential premises, not to transfer their rights and obligations under the lease agreement to another person (we re-lease), not to transfer the non-residential premises for free use, and also not to pledge the rental rights and not to deposit them in as a contribution to the authorized capital of business partnerships and companies or a share contribution to a production cooperative, unless otherwise provided by the Civil Code of the Russian Federation, other law or other legal acts (clause 2, Article 615 of the Civil Code of the Russian Federation).
All the actions that are listed above are essentially aimed at transferring to another person not only the rights, but also the obligations of the tenant. The transfer of obligations (or some part of them) requires the obligatory consent of the creditor (clause 1 of article 391 of the Civil Code of the Russian Federation), in the role of which the lessor acts. In addition, the landlord is far from indifferent to whom the non-residential premises or the rights to it can be transferred.
The landlord's consent can be expressed different ways - directly in the lease agreement, in an additional agreement to it, and even in the form of a unilateral action (for example, written permission).
In the cases specified in clause 2 of Art. 611 of the Civil Code of the Russian Federation, the lessee is prohibited from transferring his rights to another person in whole or in part. Full transfer of rights takes place upon re-lease. In a similar situation, a new tenant enters into a relationship with the landlord, while the old one completely drops out of them and therefore ceases to bear any responsibility to the landlord.
Partial transfer by the lessee of his rights takes place in all other cases, and the scope of the transferred rights is different. The smallest amount of rights goes to the pledgee, who, in fact, acquires only the ability to dispose of the lease rights in case of failure to fulfill the obligation secured by the pledge. The largest volume of rights is received by business companies (partnerships and production cooperatives, to which the lease rights are transferred in the form of contributions (share contributions)), since all obligations arising from the lease agreement remain with the depositors - tenants. The sublease (as well as free use) occupies an intermediate position, since the rights of the lessee are transferred to the sublease, but in a certain part, while the sublease is also liable to the lessee. However, in any case, except for the re-lease, the lessee remains liable to the lessor under the contract.
Subleasing is the most common case of transferring lease rights to a third party, so it should be considered separately.
In the event that the rented non-residential premises in some part are no longer needed by the tenant, the latter may, with the consent of the lessor, sublet it. In case of sublease, the lessee becomes the lessor in relation to the subtenant, while retaining a certain amount of lease rights for himself.
The sublease agreement cannot be concluded for a period exceeding the term of the lease agreement. Otherwise, it in the relevant part will be invalid on the basis of Art. 168 of the Civil Code of the Russian Federation.
The sublease follows the fate of the lease. If the lease agreement is null and void on the grounds provided for by the Civil Code of the Russian Federation, the sublease agreements concluded in accordance with it (clause 2 of article 618 of the Civil Code of the Russian Federation) are null and void. 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).
If the lessor has agreed to the conclusion of the sublease agreement by the lessee, he thereby bound himself. The early termination of the sublease agreement due to the termination of the lease agreement can seriously violate the rights of the subleaseholder without fault on his part. Therefore, the legislator granted the sub-lessee the right to conclude a lease agreement, but only for the non-residential premises that were in his use and for the unexpired sublease period. As for the conditions on which a new agreement should be concluded, it is quite logical to refer to the terms of the lease agreement, not sublease. one
The procedure for concluding a lease agreement by a sublease on the conditions specified in clause 1 of Art. 618 of the Civil Code of the Russian Federation, regulated by Art. Art. 445 and 446 of the Civil Code of the Russian Federation. However, the lease agreement may establish other rules than those specified in paragraph 1 of Art. 618 of the Civil Code of the Russian Federation. IN.
6) return of the rented non-residential premises upon the expiration of the lease term or upon termination of the lease agreement on other grounds
By virtue of Art. 622 of the Civil Code of the Russian Federation in the event of termination of contractual relations associated with the lease of non-residential premises, regardless of the reasons for such termination, the lessee is obliged to return the non-residential premises leased to him by the latter in the condition in which he received it, taking into account normal wear and tear or in that condition , which is provided by the contract. Under a lease agreement for non-residential premises, the return of the rented premises must be formalized with a transfer (return) document. If this obligation is not fulfilled by the tenant, he must pay the landlord for the entire period of delay in the return of the non-residential premises, the rent and, in addition, compensate for losses in the part not covered by the amount of rent payments.
In arbitration and judicial practice, a problem has arisen related to the qualification of such claims of landlords, which are usually referred to in statements of claim as demands for the eviction of a former tenant or for the release by the latter of premises occupied by him without legal grounds. There were often cases when such claims were qualified by the courts as negative claims or as claims to restore the situation that existed before the violation of subjective rights; But most often, the demands of the lessors to evict the tenant or to vacate the premises occupied by him were considered in the arbitration court practice as vindication claims (to reclaim property from someone else's illegal possession).
On the example of one of the cases, the Supreme Arbitration Court of the Russian Federation recognized this practice as erroneous and provided an appropriate explanation.
This is a typical situation when the owner of a non-residential premises filed a claim with an arbitration court to evict the organization due to the expiration of the lease agreement. The arbitration court, obliging the defendant to vacate the non-residential premises and transfer it to the plaintiff for use, erroneously motivated its decision with reference to Art. 301 of the Civil Code of the Russian Federation. With regard to this case, the Presidium of the Supreme Arbitration Court of the Russian Federation indicated that “... Art. 301 of the Civil Code of the Russian Federation (vindication claim) is applied in the case when a person who considers himself the owner of the disputed property claims this property from someone else's illegal possession, i.e. from the possession of a person who owns property without a proper legal basis. In this case, the defendant occupied the premises on the basis of a lease agreement (prior to its termination), therefore his obligation to return the property in an exempt form to the lessor should be determined in accordance with the conditions stipulated by the legislation on lease. "
From this clarification of the Supreme Arbitration Court of the Russian Federation, it follows that the lessor's requirement to evict the tenant from the occupied premises does not apply to property rights protection methods. The question of how to qualify such claims is left open. It seems that it can be answered as follows: the tenant's obligation to return the non-residential premises upon termination of the lease agreement is included in the concept of "content of the legal relationship" arising from this agreement.
When interpreting the terms of the contract, the court will take into account the literal meaning of the words and expressions contained therein. The literal meaning of the terms of the contract in case of its ambiguity is established by comparison with other conditions and the meaning of the contract as a whole, and if it is impossible to determine the content of the contract, the actual common will of the parties is determined, taking into account the purpose of the contract. In this case, all relevant circumstances are taken into account, including the negotiations preceding the contract, correspondence, the practice established in the mutual relations of the parties, the customs of business turnover, the subsequent behavior of the parties (Article 431 of the Civil Code of the Russian Federation).
In addition to the obligations of the parties, the lease agreement must provide for the liability of the parties for non-performance or improper performance of their obligations. It is advisable, for example, to establish sanctions for late transfer of rent and other violations.
Regulatory Scheme for Immovable Property lease relations has its own characteristic features "different, for example, from the regulation of the purchase and sale agreement.
So, the Civil Code of the Russian Federation contains special rules governing the purchase and sale of real estate (§ 7, Chapter 30 of the Civil Code of the Russian Federation). The rules regarding the lease of real estate are provided only in the general provisions on lease (§ 1 of Chapter 34 of the Civil Code of the Russian Federation). For example: a lease agreement for immovable property is subject to state registration, unless otherwise provided by law (clause 2 of article 609 of the Civil Code of the Russian Federation); in the event of the death of a citizen leasing real estate, his rights and obligations under the lease agreement are transferred to the heir, unless otherwise provided by law or agreement (clause 2 of article 617 of the Civil Code of the Russian Federation) and other provisions. The Civil Code of the Russian Federation does not contain a separate group of legal norms on the lease of any real estate, placed in an independent paragraph of the chapter on lease as a whole.
Contained in chap. 34 of the Civil Code of the Russian Federation paragraphs are arranged according to the scheme repeatedly used by the legislator; the first paragraph contains general provisions on renting, and in paragraphs 2-5 - special rules (about renting, renting vehicle, lease of buildings and structures, lease of enterprises and financial lease (leasing). In accordance with Art. 625 of the Civil Code of the Russian Federation, general rules are to be applied only in the absence of special regulation Shirokov Y. Tenant, out! On some features of the termination of a lease agreement for non-residential premises [Text] // Business lawyer. - 2004. - No. 9. - P. 24; Grad G. Real estate for rent [Text] // Business lawyer. - 2008. - No. 3. - P. 13 ..
Consequently, the legislator assesses the lease as a single phenomenon, regardless of the subject composition of the parties, lease objects, as well as other circumstances that can only affect a certain peculiarity of the legal one.
Among the five types of lease agreements, the legislator singles out the lease of buildings and structures, as well as the lease of enterprises, not on the basis of a qualification criterion, but depending on the type of property being leased.
So, the Civil Code of the Russian Federation contains special rules for the lease of these types of real estate, the specificity of which requires special legal regulation. At the same time, there are real estate objects that have no less specificity and also require separate legal regulation (non-residential premises, construction in progress, etc.).
The Civil Code of the Russian Federation does not contain rules on the lease of non-residential premises. In this regard, the question of which rules (general (§ 1, Chapter 34 of the Civil Code of the Russian Federation) or special (§ 4, Chapter 34 of the Civil Code of the Russian Federation) on the lease of buildings and structures should be applied to the lease of non-residential premises,
V.B. Vitryansky believes that “with regard to the lease of non-residential premises, there are no special rules in the Code, therefore the general rules on the lease agreement are applied to the specified legal relations in in full»Commentary on the second part of the Civil Code of the Russian Federation for entrepreneurs [Text] / ed. Braginsky M.I. M .: MTsFER, 1997 .-- S . 74..
According to V.S. Ema, the subject of a lease agreement for a building or structure "can only be a building or a structure as a whole. If a part of a building or structure is leased, the relationship between the lessor and the lessee should be governed by the general rules on the lease agreement" Civil law. Volume 2. Polutom 1. [Text] / ed. E.A. Sukhanova M .: BEK, 1999. - S. 396 ..
Israfilov's absolutely opposite point of view: “The Civil Code Russian Federation now contains both general rules on lease and special rules on the regulation of certain types of lease, including the lease of buildings and structures, which also cover the lease of non-residential premises "Israfilov I. Rent of non-residential premises [Text] // Economy and Law. - 1997. - No. 10. - P. 113 ..
This approach is quite understandable and it is connected with the fact that non-residential premises are considered as parts of a building, and non-residential premises are not recognized as separate real estate objects.
In one of the comments of the Civil Code of the Russian Federation, the following way out of this situation is proposed: "to relations with non-residential premises, the norms of § 4" Rent of buildings and structures "of Chapter 34" Rent "are applied only if the parties agree on this." But "if the parties in the contract for the lease of non-residential premises did not provide for the application of the rules of § 4, then the rules of § 1 apply ..." Commentary on the Civil Code of the Russian Federation, part two (article by article) [Text] / under. ed. Sadikova O.N. - M .: KONTRAKT, INFRA-M, 1998. - P. 185 .. That is, we are talking about the regulation of relations by general provisions on rent.
Komarova T.Yu. makes the following conclusion: “if, following the logic of the Civil Code of the Russian Federation, use the concept of non-residential premises in a broad sense, then when renting non-residential premises it is necessary to be guided, first of all, by the norms of § 4 (Rent of buildings and structures) chapter 34 of the Civil Code of the Russian Federation” T.Yu. Non-residential premises as an object of lease [Text] // Legislation. - 1998. - No. 12. -S. 42 ..
As you can see, there is no consensus on the application of certain rental rules to non-residential premises. Lack of legal regime the latter gives rise to legal problems of their turnover.
Should non-residential premises be considered inextricably linked with buildings, structures using the rules for renting buildings and structures? The structure of chapter 34 of the Civil Code of the Russian Federation will give the answer: the lease of real estate that is not allocated separately in this chapter (including non-residential premises of construction in progress, etc.) is governed by general provisions on lease. The special rules of Section 4 of Chapter 34 of the Civil Code of the Russian Federation cover lease legal relations arising from a lease agreement for objects that are uniquely related to buildings and structures.
In practice, until mid-2000, difficulties arose with the state registration of a lease agreement for non-residential premises concluded for a period of less than one year. The application of the general rules on lease resulted in the fact that, regardless of the term, lease agreements for non-residential premises were subject to registration. Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 1, 2000 No. 53 resolved the problem that had significantly complicated the procedure for using non-residential premises and burdened the parties to the contract with bureaucratic requirements. Now a special rule of clause 2 of Art. 651 of the Civil Code of the Russian Federation.
It should be borne in mind that the supreme judicial body has extended only one special rule of § 4 of Chapter 34 of the Civil Code of the Russian Federation to the rental of non-residential premises. This means that in all other matters you should still refer to the general terms of the lease.
No matter how we make a reference to general rules lease, but we are faced with the fact that non-residential premises other than buildings are part of them and are inextricably linked with them,
Therefore, the question of which rules of the Civil Code of the Russian Federation (general on lease or special, on lease of buildings and structures) should be applied to a lease agreement for non-residential premises remains open. When concluding such an agreement, you must be careful, taking into account both rules.
So, according to the rules of paragraphs 1 and 4 of Chapter 34 of the Civil Code of the Russian Federation, the following issues are resolved in different ways: determining the price of the contract; forms of concluding a lease agreement for non-residential premises; registration of a document on the transfer of non-residential premises from the lessor to the lessee; on the tenant's rights to a land plot when renting non-residential premises,
1. Determination of rent under a lease agreement for buildings and structures is an essential condition of this agreement (clause 1 of article 654 of the Civil Code of the Russian Federation). In the absence of an agreed condition on the amount of rent, such an agreement shall be deemed not concluded. In this case, the determination of the price according to the rules of clause 3 of Art. 424 of the Civil Code of the Russian Federation does not apply.
However, when renting other real estate, to which this special rule does not apply, the amount of rent can be determined according to the rules of clause 3 of Art. 424 of the Civil Code of the Russian Federation. In cases where the price is not provided for in a compensated contract and cannot be determined on the basis of the terms of the contract, the performance of the contract must be paid at a price that, under comparable circumstances, is usually charged for similar goods, works or services.
2. Recognizing the application of general provisions on the lease agreement to the lease of non-residential premises 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, it must be concluded in writing (Clause 1 of Art. 609 of the Civil Code of the Russian Federation) ...
That is, “p. I Art. 609 of the Civil Code of the Russian Federation provides an opportunity for citizens (individuals) to conclude lease agreements between themselves both in writing and orally, but the latter is permissible only for a lease term of no more than one year. ”Commentary on the Civil Code of the Russian Federation, part two. Publishing house 3. [Text] / under. ed. Sadikova O.N. - M .: INFRA-M, 1998 .-- P. 179 ..
It follows from the meaning of this provision that, regardless of the term, a lease agreement for non-residential premises can also be concluded in writing, and not only by drawing up and signing one document by the parties, but also by exchanging documents by post, telegraph, teletype, telephone, electronic and another connection that allows you to reliably establish that the document comes from a party to the contract (clause art. 434 of the Civil Code of the Russian Federation).
But a contract concluded in this way for one year or for a period of more than one year is subject to mandatory state registration on the recommendations of the Presidium of the Supreme Arbitration Court of the Russian Federation, expressed: in clause 2 of the Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 01.06.2000 No. 53 "On state registration of lease agreements non-residential premises ".
In accordance with Art. 26 of the Federal Law "On state registration of the right to real estate and transactions with it" state registration of lease of real estate is carried out through state registration of the lease of this real estate. According to the Instruction on the procedure for state registration of lease agreements, gratuitous use, concession of forest land (forest) plots and rights to forest resources (forest) plots, approved by Order of the Ministry of Justice of the Russian Federation of January 23, 2002 No. 18, among the documents submitted for state registration of contracts lease, in accordance with clause 1 of article 17, clause 5 of article 18 of the Federal Law "On state registration of rights to real estate and transactions with it", the original of the contract is indicated, made in simple writing, at least in two copies, one of which after state registration, it is returned to the copyright holder, the second is placed in the case of title documents, or an original copy of the contract made in notarial form, and its copy for attachment to the case of title documents.
Thus, it must be recognized that in practice, lease agreements for non-residential premises (and for a period of less than a year) are always concluded by drawing up one document signed by the parties.
3. Another point, in the legal decision of which we give preference to the norms of the law on the lease of buildings and structures - on the rights to land. The decision of the fate of a land plot, when renting non-residential premises, based on the general provisions on lease, or rather, due to the lack of rules on the right to use a land plot when renting real estate, rests with the parties to the contract. The law contains special rules on rights to a land plot when renting a building or structure located on it (Articles 652 and 653 of the Civil Code of the Russian Federation).
Problems of the tenant's use of the land plot and complicating the use of the rented non-residential premises might not arise if such issues were resolved. To resort to the scheme for solving this problem, proposed by the special rules of Art. 652 and 653 of the Civil Code of the Russian Federation still have to “if the tenant cannot own and use the rented non-residential premises, without the right to use and (or) possession of the land plot on which the building is located, where the non-residential premises is located, and, also, not having the right to use common premises and equipment of the building itself, appropriate to provide the tenant with these rights, regardless of whether the rules of Art. 652 and 653 of the Civil Code of the Russian Federation or not "Makovskaya A. Term of the agreement lease of non-residential premises and state registration of the agreement [Text] // Economy and law. - No. 11. - 2000. - P. 27 ..
4. By definition, the lessor undertakes to provide the tenant with the property. Provision of property under Art. 611 of the Civil Code of the Russian Federation means the provision by the lessor of the lessee with the opportunity to use the property with all the accessories and related documents in accordance with its purpose in a condition that complies with the terms of the contract.
When leasing buildings and structures, the legislator provided for the need to draw up a deed of transfer (Article 655 of the Civil Code of the Russian Federation). A completely reasonable approach to the transfer of real estate, namely non-residential premises, according to the act, with the fixation of all the details during the transfer (the condition of the premises, the availability of the lessor's equipment in it, the coordination of issues of upcoming repairs (capital or current as stipulated in the contract), etc.) led to the fact that it is practically impossible to do without such a document in the execution of the contract.
Based on the above, we can conclude that the current structure of Ch. 34 of the Civil Code of the Russian Federation is not indisputable. In particular, it is possible to discuss the reasons why the legislator did not create a single paragraph for all real estate or did not highlight paragraphs on other important leases (for example, land lease).
The absence of a separate legal regulation of the contract for the lease of non-residential premises or a special indication of the law on which rules should be applied (general provisions on lease or special rules for the lease of buildings and structures) causes difficulties in concluding such an agreement. This problem remains debatable in the theoretical works of Russian lawyers,
Today, at the legislative level, everything looks quite clear: lease agreements for non-residential premises are regulated only by general provisions on lease, with the exception of clause 2 of Art. 651 § 4 of Chapter 34 of the Civil Code of the Russian Federation by virtue of the Information Letter of the Presidium of the Supreme Arbitration Court dated 01.06.2000 No. 53.
But with the application of such norms in practice, everything is quite complicated. Affects the direct connection with buildings, structures. As practice shows, the parties to a lease agreement for non-residential premises, when concluding it, refer to the rules on the lease of buildings and structures.
Proponents of the common point of view believe; “Being part of a building, non-residential premises, however, are not subject to special rules on the lease of buildings and other structures. The existing practice of identifying non-residential premises with a building is recognized as erroneous, and, therefore, a change in the current legislation is required. ”Ersh AB Buildings and structures as the subject of a lease agreement [Text] // Bulletin of the YOU. - 2000. - No. 8.-С.11 ..
Indeed, only by virtue of the direct instruction of the law, we have the right to apply the rules on the lease of buildings and structures to the lease of non-residential premises.
But in the absence of such legislation, some changes should be made to the rental legislation in order to resolve the issues of renting non-residential premises.
In this connection, the rules of paragraph 4 of Chapter 34 of the Civil Code of the Russian Federation should be extended to relations arising from a lease agreement for non-residential premises, supplemented with the corresponding article of Art. 650 of the specified paragraph.
- Appendix 1. List of cases of setting the rental rate under lease agreements for non-residential premises located in the property treasury of Moscow, on preferential terms Appendix 2. Rates of monthly rent for the placement of equipment of base stations of mobile radiotelephone communications at facilities approved by the order of the Moscow Government dated 29 November 2012 N 752-RP "On approval of the List of objects of state property in Moscow for the priority placement of equipment for base stations of mobile radiotelephone communication" Appendix 3. Rent rates for parts of buildings or structures (parking lots) intended for the placement of vehicles, located in the property treasury of Moscow, located within the administrative boundaries of Moscow
Resolution of the Moscow Government dated December 25, 2012 N 809-PP
"On the main directions of the rental policy for the provision of non-residential premises located in the property treasury of the city of Moscow"
With changes and additions from:
October 29, December 23, 2013, June 18, July 1, September 17, November 11, December 9, December 24, 2014, February 24, July 15, August 26, December 17, 22, 2015, November 28, 2 , 22 December 2016, 28 March, 19 April, 11 July, 15 December 2017, 17 April, 18 December 2018
In order to exercise the powers of the constituent entity of the Russian Federation of the city of Moscow to manage the state property of the city of Moscow and provide property support to the entities leasing the objects of the non-residential fund of the property treasury of the city of Moscow, in accordance with the requirements of the Federal Law of July 26, 2006 N 135-FZ "On protection of competition "The Moscow government decides:
1. To approve the list of cases of setting the rent rate under lease agreements for non-residential premises located in the property treasury of the city of Moscow on preferential terms (Appendix 1).
Information about changes:
Resolution of the Moscow Government dated August 26, 2015 N 544-PP, this resolution was supplemented with clause 1 (1)
1 (1). Establish that the procedure for determining the amount of rent, specified in Appendix 1 to this Resolution, applies to existing and newly drawn up contracts for the lease of non-residential premises located in the property treasury of the city of Moscow, with the exception of lease contracts concluded as a result of the auction, as well as lease contracts , at which fixed rental rates set by the Moscow Government are applied.
2. Set the minimum rental rate for 1 sq. M. For 2019. meter of non-residential premises located in the property treasury of the city of Moscow, located within the administrative boundaries of the city of Moscow, in the amount of 4,500 rubles per year. Rent rate for 1 sq. meter of non-residential premises located in the property treasury of the city of Moscow cannot be lower than the minimum, unless otherwise established by legal acts of the Moscow Government.
Unless otherwise provided by this Resolution, the initial (minimum) price of a lease agreement for a non-residential facility put up for auction and included in the List of state property intended for transfer to the possession and (or) use of small and medium-sized businesses and organizations that form the support infrastructure small and medium-sized businesses, approved by the Government of Moscow or an authorized executive body of the city of Moscow in accordance with the Federal Law of July 24, 2007 N 209-FZ "On the development of small and medium-sized businesses in the Russian Federation", is set in the amount of the minimum rental rate defined by the first paragraph of clause 2 of this resolution.
The initial (minimum) price of a lease agreement for a non-residential facility located in the basement, put up for auction and included in the List of state property intended for transferring into possession and (or) for use by small and medium-sized businesses and organizations that form the infrastructure for supporting small and medium-sized businesses, approved by the Government of Moscow or an authorized executive body of the city of Moscow in accordance with Federal Law of July 24, 2007 N 209-FZ "On the development of small and medium-sized businesses in the Russian Federation", is set at 1000 rubles per 1 sq. meter per year.
3. When calculating the rental rate under lease agreements (except for lease agreements concluded based on the results of trading), annually from January 1 of the current year, apply the deflator coefficient taking into account the 1.05 index:
3.2. Under the current lease agreements for non-residential premises located in the property treasury of the city of Moscow, with the categories of tenants, the purposes of using the non-residential property provided for in Appendix 1 to this Resolution, the rental rate for which is determined on the basis of an opinion of an independent appraiser on the market value of the annual rent, and also in the form of an estimated rental rate determined using a correction factor.
Information about changes:
Resolution of the Moscow Government dated July 1, 2014 N 364-PP, this resolution was supplemented with clause 4 (1)
4 (1). Establish that:
4 (1) .1. Under current and newly drawn up contracts for the lease of non-residential premises with the categories of tenants, the purposes of using the non-residential property provided for in Appendix 1 to this Resolution, leased out on preferential terms, except for cases of rent arrears for two periods of payment in a row or underpayment of rent payments that entailed a debt exceeding the amount of rent for two payment periods (hereinafter - violation of payment discipline), the use of non-residential premises located in the property treasury of the city of Moscow for a purpose not provided for by the lease agreement, as well as when transferring the leased property to sublease without consent the lessor sets the following rental rates (hereinafter - preferential rates):
The minimum rental rates established by the Moscow Government when approving the forecast of the social and economic development of the city of Moscow for the corresponding financial year;
Fixed rental rates set by the Moscow Government;
Settlement rates determined from the value of the market rental rate established by the opinion of an independent appraiser, with the use of a decreasing adjustment coefficient established by a legal act of the Moscow Government.
4 (1) .2. If tenants violate payment discipline under lease agreements for non-residential premises leased out on preferential terms:
4 (1) .2.1. If the tenant pays off the debt within 45 days from the date the Moscow City Property Department sends the corresponding notification, the current preferential rate established in the lease agreement for non-residential premises for the corresponding year remains.
4 (1) .2.2. If the tenant fails to pay off the debt within 45 days from the date the Moscow City Property Department sends a corresponding notification, the current preferential rate established in the lease agreement for non-residential premises for the corresponding year is applied with an adjustment factor of 1.25.
4 (1) .2.3. If, when applying the adjustment coefficient 1.25 (clause 4 (1) .2.2 of this resolution), the rent rate will exceed the amount determined in accordance with the established procedure based on the opinion of an independent appraiser on the market value of the annual rent, then in relation to the specified non-residential premises the rent rate is set, determined on the basis of the opinion of an independent appraiser.
4 (1). 3. In case of repeated violation by tenants of payment discipline under lease agreements for non-residential premises leased on preferential terms:
4 (1) .3.1. For lease agreements for non-residential premises with a reduced rate established in accordance with clause 4 (1) .2.1 of this resolution, an adjustment factor of 1.25 is applied, taking into account the provisions of clause 4 (1) .2.3 of this resolution.
4 (1) .3.2. If the tenant fails to pay off the debt within 45 days from the date the Moscow City Property Department sends a corresponding notification under contracts for the lease of non-residential premises at the rental rate established in accordance with paragraphs 4 (1) .2.2 and 4 (1) .3.1 of this resolution, the rent rate is set based on the opinion of an independent appraiser on the market value of the annual rent. The lessee forfeits the right to apply preferential rental rates under other agreements concluded with such a lessee and existing lease agreements for non-residential facilities located in the property treasury of the city of Moscow.
4 (1) .3.3. In the event that the tenant repays the debt within 45 days from the date the Moscow City Property Department sends a corresponding notification under contracts for the lease of non-residential premises at the rental rate established in accordance with paragraphs 4 (1) .2.2 and 4 (1) .3.1 of this resolution, for subsequent years, the current preferential rate established in the lease agreement for non-residential premises for the corresponding year is retained, with the application of the correction coefficient 1.25 and the deflator coefficient established by the Moscow Government for the corresponding year, except for the cases provided for in paragraph 4 (1) .4 of this regulations.
4 (1). 4. In the event of a subsequent violation by tenants of payment discipline under lease agreements for non-residential premises leased on favorable terms:
4 (1) .4.1. Under lease agreements for non-residential premises with a rental rate set in accordance with clause 4 (1) .3.3 of this Regulation, the rental rate is set based on the opinion of an independent appraiser on the market value of the annual rent.
4 (1) .4.2. If the debt is not repaid within 45 days from the date the Moscow City Property Department sent the corresponding notification, as well as in the event of another violation of payment discipline by the tenants who paid off the debt (clause 4 (1) .4 of this Resolution), the Moscow City Property Department carries out in accordance with the established the procedure for termination of lease agreements for non-residential premises at the initiative of the lessor with the collection of a forfeit stipulated by the terms of the lease agreement.
4 (1). 5. In case of transfer of non-residential premises (part of non-residential premises) leased on favorable terms to sublease without the consent of the lessor, the Moscow City Property Department ensures the recalculation of the rent at the rate determined in accordance with the established procedure on the basis of the opinion of an independent appraiser on the market value of the annual rent from the date the violation was revealed in the prescribed manner by the authorized executive body of the city of Moscow and until the expiration of the lease agreement. If the lessee re-identifies or fails to eliminate such a violation within the prescribed period, the lease agreement is subject to termination at the initiative of the lessor in accordance with the established procedure with the payment of a fine in the amount of the rental rate established for the relevant year.
Information about changes:
Resolution of the Moscow Government dated July 1, 2014 N 364-PP, this resolution was supplemented with clause 4 (2)
4 (2). When using non-residential premises located in the property treasury of the city of Moscow for a purpose not provided for by the lease agreement, the Moscow City Property Department shall terminate the lease agreement in accordance with the established procedure at the initiative of the lessor with the payment of a fine in the amount of the rental rate set for the corresponding year.
4 (3). In the case of sub-lease of non-residential premises (part of non-residential premises) leased on preferential terms in accordance with the established procedure, the preferential rental rate is set for the part of the non-residential premises not subleased. Wherein:
4 (3) .1. For a part of non-residential premises subleased to persons who, in accordance with this resolution, do not have the right to lease non-residential premises on preferential terms, the rental rate is set on the basis of an opinion of an independent appraiser on the market value of the annual rent.
4 (3). 2. For a part of non-residential premises subleased to persons who, in accordance with this resolution, have the right to lease non-residential premises on preferential terms, the rental rate is set equal to the preferential rental rate under the lease agreement, unless otherwise established by legal acts of the Moscow Government.
Civil Code of the Russian Federation CHAPTER 34 RENT
§ one. General Provisions about rent
Article 606. Lease agreement
Under a lease (property lease) agreement, the lessor (landlord) undertakes to provide the lessee (tenant) with property for a fee for temporary possession and use or for temporary use.
Fruits, products and income received by the lessee as a result of using the leased property in accordance with the contract are his property.
Article 607. Objects of lease
1. Land plots and other isolated natural objects, enterprises and other property complexes, buildings, structures, equipment, vehicles and other things that do not lose their natural properties during their use (non-consumable things) may be leased out.
The law may establish the types of property, the lease of which is not allowed or limited.
2. The law may establish the specifics of leasing land plots and other isolated natural objects.
On the refusal to satisfy the complaint about the recognition of the provisions of paragraph 3 of Article 607 as inconsistent with the Constitution of the Russian Federation, see the definition of the Constitutional Court of the Russian Federation of 05.07.2001.
3. The lease agreement must contain information that makes it possible to definitely establish the property to be transferred to the lessee as a lease object. In the absence of this data in the contract, the condition of the object to be leased is considered not agreed by the parties, and the corresponding contract is not considered concluded.
Article 608. Lessor
The right to lease property belongs to its owner. Landlords can also be persons entitled by law or the owner to lease the property.
Article 609. Form and state registration of a lease agreement
1. A lease agreement 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, it must be concluded in writing.
2. A lease agreement for immovable property is subject to state registration, unless otherwise provided by law.
3. The contract for the lease of property, providing for the subsequent transfer of ownership of this property to the lessee (Article 624), is concluded in the form provided for the contract for the sale and purchase of such property.
Article 610. Term of the lease agreement
1. The lease agreement is concluded for a period determined by the agreement.
2. If the lease term is not specified in the agreement, the lease agreement shall be considered concluded for an indefinite period.
In this case, each of the parties has the right to cancel the contract at any time, notifying the other party about it one month in advance, and in case of renting real estate, three months in advance. A different period may be established by law or agreement for warning about the termination of a lease agreement concluded for an indefinite period.
3. 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. In these cases, if the lease term is not specified in the contract and neither of the parties has canceled the contract before the expiration of the legal deadline, the contract is terminated upon the expiration of the deadline.
A lease agreement concluded for a period exceeding the statutory deadline is deemed to have been concluded for a period equal to the maximum.
Article 611. Provision of property to the lessee
1. The lessor is obliged to provide the lessee with the property in a condition that complies with the terms of the lease agreement and the purpose of the property.
2. The property is rented out together with all its accessories and related documents (technical passport, quality certificate, etc.), unless otherwise provided by the contract.
If such accessories and documents have not been transferred, however, without them, the tenant cannot use the property in accordance with his purpose or is largely deprived of what he had the right to count on when concluding the contract, he may require the lessor to provide him with such accessories and documents or terminate contract, as well as compensation for damages.
3. If the lessor has not provided the rented property to the lessee within the period specified in the lease agreement, and in the event that such a period is not specified in the agreement, within a reasonable time, the lessee has the right to claim this property from him in accordance with Article 398 of this Code and demand compensation losses caused by the delay in performance, or to demand termination of the contract and compensation for losses caused by non-performance.
Article 612. Liability of the lessor for the defects of the leased property
1. The landlord is responsible for the shortcomings of the leased property that fully or partially impede the use of it, even if at the time of the conclusion of the lease he did not know about these shortcomings.
If such deficiencies are found, the lessee has the right, at his choice:
demand from the lessor either gratuitous elimination of property deficiencies, or a commensurate reduction in rent, or reimbursement of their expenses for elimination of property deficiencies;
directly deduct the amount of expenses incurred by him for the elimination of 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 his 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 claims of the lessee or withholding of expenses for the elimination of defects from the rent does not cover the losses caused to the lessee, he has the right to demand compensation for the uncovered part of the losses.
2. The lessor is not responsible for the defects of the leased property that were agreed upon when concluding the lease agreement or were known to the tenant in advance or should have been discovered by the tenant during the inspection of the property or checking its serviceability when concluding the contract or transferring the property for rent.
Article 613. Rights of third parties to leased property
The transfer of property for rent is not a basis for the termination or change of the rights of third parties to this property.
When concluding a lease agreement, the lessor is obliged to warn the tenant about all rights of third parties to the leased property (easement, right of pledge, etc.). Failure by the lessor to fulfill this obligation gives the lessee the right to demand a reduction in the rent or termination of the contract and compensation for losses.
Article 614. Rent
1. The lessee is obliged to pay the payment for the use of the property (rent) on time.
The procedure, conditions and terms for making the rent are determined by the lease agreement. In the event that they are not determined by the contract, it is considered that the procedure, conditions and terms have been established, which are usually applied when renting similar property under comparable circumstances.
2. The rent is established for all leased property as a whole or separately for each of its component parts in the form of:
1) payments determined in a fixed amount, made periodically or at a time;
2) the established share of products, fruits or income received as a result of the use of the leased property;
3) the provision of certain services by the lessee;
4) the transfer by the lessee to the lessor of the thing stipulated by the contract into ownership or lease;
5) imposing on the tenant the costs of improving the leased property stipulated by the contract.
The parties may provide in the lease agreement for a combination of these forms of rent or other forms of payment for rent.
3. Unless otherwise provided by the contract, the amount of the rent may be changed by agreement of the parties within the time frames provided for by the contract, but not more often than once a year. The law may provide for other minimum terms revision of the amount of rent for certain types of lease, as well as for the lease of certain types of property.
4. Unless otherwise provided by law, the lessee shall have the right to demand a corresponding reduction in the rent if, due to circumstances for which he is not responsible, the conditions of use provided for by the lease agreement or the condition of the property have significantly deteriorated.
5. Unless otherwise provided by the lease agreement, in the event of a significant violation by the tenant of the terms of payment of the lease payment, the lessor shall have the right to demand from him an early payment of the lease payment within the period established by the lessor. In this case, the lessor does not have the right to demand an early payment of the rent for more than two consecutive terms.
Article 615. Use of leased property
1. The lessee is obliged to use the leased property in accordance with the terms of the lease agreement, and if such terms are not specified in the agreement, in accordance with the purpose of the property.
2. The lessee has the right, with the consent of the lessor, to sublet the leased property (sublease) and transfer his rights and obligations under the lease agreement to another person (we transfer it), provide the leased property for free use, as well as give the lease rights as a pledge and make them as a contribution in the authorized capital of business partnerships and companies or a share contribution to a production cooperative, unless otherwise provided by this Code, other law or other legal acts. In these cases, with the exception of re-leasing, the lessee remains liable under the contract to the lessor.
The sublease agreement cannot be concluded for a period exceeding the term of the lease agreement.
The rules on lease agreements apply to sublease agreements, unless otherwise provided by law or other legal acts.
3. If the lessee uses the property not in accordance with the terms of the lease agreement or the purpose of the property, the lessor has the right to demand termination of the contract and compensation for losses.
Article 616. Obligations of the parties for the maintenance of the leased property
1. The lessor shall be obliged to carry out capital repairs of the leased property at his own expense, unless otherwise provided by law, other legal acts or the lease agreement.
Major repairs must be made within the time period established by the contract, and if it is not specified in the contract or is caused by an urgent need, within a reasonable time.
A violation by the lessor of the obligation to carry out major repairs gives the lessee the right, at his choice:
make major repairs, provided for by the contract or caused by an urgent need, and collect from the lessor the cost of repairs or set them off against the rent;
demand a corresponding reduction in rent;
demand termination of the contract and compensation for losses.
2. The lessee is obliged to 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 the lease agreement.
Article 617. Preservation of a lease agreement in force upon change of parties
1. The transfer of ownership (economic management, operational management, life-long inherited ownership) to the leased property to another person is not a basis for changing or terminating the lease agreement.
2. In the event of the death of a citizen leasing immovable property, his rights and obligations under the lease agreement shall pass to the heir, unless otherwise provided by law or agreement.
The lessor does not have the right to refuse such an heir to enter into the contract for the remaining period of its validity, except for the case when the conclusion of the contract was due to the personal qualities of the tenant.
Article 618. Termination of a sublease agreement in case of early termination of a lease agreement
1. Unless otherwise provided by the lease agreement, early termination of the lease agreement shall entail the termination of the sublease agreement concluded in accordance with it. In this case, the subleaser has the right to conclude a lease agreement with him for the property that was in his use in accordance with the sublease agreement, within the remaining sublease period, on terms corresponding to the terms of the terminated lease agreement.
2. If the lease agreement is void on the grounds provided for by this Code, the sublease contracts concluded in accordance with it are void.
Article 619. Early termination of the contract at the request of the lessor
At the request of the lessor, the lease may be terminated early by the court in cases where the lessee:
1) uses property with a material violation of the terms of the contract or the purpose of the property, or with repeated violations;
2) significantly impairs property;
3) does not pay the rent more than two times in a row after the expiry of the payment term established by the contract;
4) does not carry out capital repairs of property within the terms established by the lease agreement, and in the absence of them in the agreement, within a reasonable time frame in cases where, in accordance with the law, other legal acts or the agreement, major repairs are the responsibility of the lessee.
The lease agreement may also establish other grounds for early termination of the agreement at the request of the lessor in accordance with paragraph 2 of Article 450 of this Code.
The lessor has the right to demand early termination of the contract only after the lessee has sent a written warning about the need to fulfill his obligation within a reasonable time.
Article 620. Early termination of the contract at the request of the lessee
At the request of the lessee, the lease can be terminated early by the court in cases where:
1) the lessor does not provide the property for use by the lessee or creates obstacles to the use of the property in accordance with the terms of the contract or the purpose of the property;
2) the property transferred to the lessee has defects that prevent the use of it, which were not specified by the lessor when concluding the contract, were not known to the lessee in advance and should not have been discovered by the lessee during the inspection of the property or checking its serviceability when concluding the contract;
3) the lessor does not carry out major repairs of the property, which is his duty, within the terms established by the lease agreement, and in the absence of them in the agreement, within a reasonable time;
4) the property, due to circumstances for which the lessee is not responsible, turns out to be in a state unsuitable for use.
The lease agreement may also establish other grounds for early termination of the agreement at the request of the lessee in accordance with paragraph 2 of Article 450 of this Code.
Article 621. Pre-emptive right of the lessee to conclude a lease agreement for a new term
1. Unless otherwise provided by a law or a lease agreement, a lessee who has properly performed his duties, upon the expiration of the term of the agreement, has, all other things being equal, the right of priority over other persons to conclude a lease agreement for a new term. The lessee is obliged to notify the lessor in writing of the desire to conclude such an agreement within the period specified in the lease agreement, and if such a period is not specified in the agreement, within a reasonable time before the end of the agreement.
When concluding a lease agreement for a new term, the terms of the agreement may be changed by agreement of the parties.
If the lessor refused the tenant to conclude a contract for a new term, but within a year from the date of the expiration of the contract with him entered into a lease with another person, the tenant has the right, at his choice, to demand in court the transfer of the rights and obligations under the concluded contract and compensation for losses, caused by the refusal to renew the lease with him, or only compensation for such losses.
2. If the lessee continues to use the property after the expiration of the term of the contract in the absence of objections from the lessor, the contract is considered renewed on the same terms for an indefinite period (Article 610).
Article 622. Return of leased property to the lessor
Upon termination of the lease, the lessee is obliged to 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.
If the lessee has not returned the leased property or returned it late, the lessor has the right to demand payment of the rent for the entire period of delay. In the event that the specified fee does not cover the losses caused to the lessor, he may demand their compensation.
In the event that the contract provides for a penalty for the untimely return of the leased property, the losses may be recovered in full in excess of the penalty, unless otherwise provided by the contract.
Article 623. Improvements to leased property
1. Separable improvements made by the lessee to the leased property are his property, unless otherwise provided by the lease agreement.
2. In the event that the lessee has made, at his own expense and with the consent of the lessor, improvements in the leased property that cannot be separated without harm to the property, the lessee has the right, after termination of the contract, to reimburse the cost of these improvements, unless otherwise provided by the lease contract.
3. The cost of inseparable improvements to the leased property made by the lessee without the consent of the lessor is not subject to compensation, unless otherwise provided by law.
4. Improvements to the leased property, both separable and inseparable, made from the depreciation deductions from this property, are the property of the lessor.
Article 624. Redemption of leased property
1. A law or a lease agreement may provide that the leased property passes into the ownership of the lessee upon the expiration of the lease term or before its expiration, provided that the lessee pays the entire redemption price stipulated by the agreement.
2. If the condition on the redemption of the leased property is not stipulated in the lease agreement, it may be established by an additional agreement of the parties, which at the same time have the right to agree on offsetting the previously paid rent into the redemption price.
3. The law may establish cases of prohibition of the purchase of leased property.
Article 625. Features of certain types of lease and lease of certain types of property
To certain types of lease agreements and lease agreements for certain types of property (rental, lease of vehicles, lease of buildings and structures, lease of enterprises, financial lease), the provisions provided for by this paragraph shall apply, unless otherwise established by the rules of this Code on these agreements.
§ 4. Rent of buildings and structures
Article 650. Contract for leasing a building or structure
1. Under a lease agreement for a building or structure, the lessor undertakes to transfer the building or structure for temporary possession and use or for temporary use to the lessee.
2. The rules of this paragraph shall apply to the lease of enterprises, unless otherwise provided by the rules of this Code on the lease of an enterprise.
Article 651. Form and state registration of a lease agreement for a building or structure
1. A lease agreement for a building or structure is concluded in writing by drawing up one document signed by the parties (paragraph 2 of Article 434).
Failure to comply with the form of the lease agreement for a building or structure entails its invalidity.
On the refusal to satisfy the complaint about the recognition of the provisions of paragraph 2 of Article 651 as inconsistent with the Constitution of the Russian Federation, see the definition of the Constitutional Court of the Russian Federation of 05.07.2001 N 132-O.
On the application of clause 2 of Article 651, see the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 01.06.2000 N 53.
2. A lease agreement for a building or structure, concluded for a period of at least a year, is subject to state registration and is considered concluded from the moment of such registration.
Article 652. Rights to a land plot when leasing a building or structure located on it
1. Under a lease agreement for a building or structure, the tenant, simultaneously with the transfer of ownership and use of such real estate, is transferred the rights to that part of the land plot that is occupied by this real estate and is necessary for its use.
2. In cases where the lessor is the owner of the land plot on which the leased building or structure is located, the lessee is granted the right to lease or the other right provided for by the lease agreement for the building or structure to the corresponding part of the land plot.
If the contract does not specify the right to the relevant land plot transferred to the lessee, the right to use that part of the land plot that is occupied by the building or structure and is necessary for its use in accordance with its purpose is transferred to him for the term of the lease of the building or structure.
3. Lease of a building or structure located on a land plot that does not belong to the lessor by right of ownership is allowed without the consent of the owner of this plot, unless this contradicts the conditions for using such a plot established by law or by an agreement with the owner of the land plot.
Article 653. Retention by the tenant of a building or structure of the right to use a land plot during its sale
In cases where the land plot on which the leased building or structure is located is sold to another person, the tenant of this building or structure retains the right to use the part of the land plot that is occupied by the building or structure and is necessary for its use, under the conditions in force before the sale of the land plot.
Article 654. Amount of rent
1. The lease agreement for a building or structure must provide for the amount of rent. In the absence of a condition on the amount of rent agreed by the parties in writing, the lease agreement for a building or structure shall be deemed not concluded. In this case, the rules for determining the price provided for by paragraph 3 of Article 424 of this Code shall not apply.
2. The fee for the use of a building or structure established in a lease agreement for a building or structure includes payment for the use of the land plot on which it is located, or the corresponding part of the plot transferred with it, unless otherwise provided by law or the agreement.
3. In cases where the lease payment for a building or structure is established in an agreement per unit of area of \u200b\u200ba building (structure) or other indicator of its size, the lease payment is determined based on the actual size of the building or structure transferred to the lessee.
How is the lease of non-residential premises? What laws govern this process and what conditions must be met for a commercial real estate lease transaction to be legal and legitimate for both parties? Read about this in our article.
The procedure for renting objects of non-residential fund is a form of property agreement, according to which the lessor (owner of the premises) transfers the property to the lessee (tenant) for temporary use on the terms of rent. Most often, such lease transactions are made between legal entities or individual entrepreneurs. The procedure for renting non-residential premises is regulated by the Civil Code of the Russian Federation, the Federal Law of the Russian Federation "On State Registration of Real Estate". In accordance with the Civil Code of the Russian Federation, which is concluded for a period of less than 12 months, it is not subject to state registration, while an agreement drawn up for more than a year must be registered with the competent authorities. Various structures, buildings as a whole, or individual premises included in the non-residential fund are subject to lease. Individual elements of premises (for example, a basement, a roof, a flight of stairs, etc.) are not subject to rent. Non-residential premises are transferred to the tenant along with documents and keys, otherwise the contract is terminated on the basis of the lack of conditions for the operation of the premises.
Rent of non-residential facilities: payment of taxes
The lease of any residential or non-residential premises is directly related to the payment of taxes on the profit received. Many responsible owners of premises, in particular, individuals, are interested in answers to questions - how much tax should be paid, whether it is necessary to register as an individual entrepreneur, and many others. Let's try to understand all the intricacies of leasing non-residential facilities. So, do I need to pay a tax fee when renting non-residential premises?
Each landlord, be it an individual or a legal entity, is obliged to pay tax on the profit received from the lease of the premises!
In accordance with paragraph 4 of Part 1 of Art. 208 of the Tax Code of the Russian Federation, the rent for the use of the premises is the income from which the owner of the premises (natural person) must pay, the amount of which is 13% of the total amount received for the period of the contract. It is worth noting that hiding the fact of renting out premises often results in the collection of the entire tax amount for the owners, and, in addition, fines in the amount of 20% of the unpaid amount and interest. It is not difficult for the tax service to find out that the residential or non-residential premises that are owned is rented out: the sources can be regular bank transfers to the card in a certain amount (as a rule, more than 100 thousand rubles a month), direct information to the tax authorities from the tenant, and other reasons that serve as excellent leverage on the landlord.
Do I need to register as an individual entrepreneur to rent out premises?
In accordance with Russian legislation, carrying out business activities without official registration with the relevant state bodies entails administrative (Article 14.1 of the Administrative Code) and criminal liability (Article 171 of the Criminal Code of the Russian Federation), if the income received is more or less 2,250 million rubles per year respectively. It is rather difficult to get an unequivocal answer to the question of whether the leasing of premises is entrepreneurial activity, therefore, the courts, considering such cases and making a decision, take into account many factors and specific circumstances of the case. For example, if a dwelling is rented out, and the reason for this is that there is no need to use it for your own residence, this type of income will not be an entrepreneurial activity, but the owner of the premises will still have to pay the 3-NDFL tax. At the same time, there are several signs that indicate that the lease of premises will be considered as a type of entrepreneurial activity with income:
- Leasing a non-residential property. In this case, the fact is taken into account that non-residential premises cannot be used to meet the household or family needs of citizens, which means that this object is rented out in order to make a profit.
- If the premises are rented legal entity... Accordingly, the organization that rented non-residential premises will note in the expense item the amount spent on rent.
- If the premises are purchased specifically for further lease.
- If the lease is concluded for a very long term or the fact of multiple renegotiation of the lease has been established. This aspect is considered by the court as a sign of systematic profit by the owner of the premises.
In the presence of these signs, according to the law, the owner must undergo official registration with state authorities as an individual entrepreneur. In this case, a simplified form of taxation system is chosen for paying taxes, the size of which is 6% of the amount of profit (recall that the tax on personal income is 13%). It is also worth considering that the owner of the premises, both as an individual entrepreneur and as an individual, will need to submit the relevant tax reports within the time frame and in the form established by the Tax Code of the Russian Federation.
Sublease of non-residential premises
Renting residential or non-residential premises implies the possibility of re-leasing it directly by the tenant. Re-lease of real estate is allowed only with the written permission of the direct owner of the premises and the presence of a special condition in the lease agreement. The parties to the sublease agreement can be both individuals and legal entities. A copy of the agreement must be handed over to the subtenant as a confirmed fact of the owner's consent to this action. The transaction for sublease of non-residential premises has some peculiarities that must be taken into account by the tenant when concluding an agreement with the subleasener.
- The term of the sublease agreement cannot be longer than the term of the original / main lease. In the event that the agreement between the lessee and the owner has terminated, the subtenant has the right to conclude a lease agreement with the owner of this premises on the same terms until the end of the term of the sublease agreement.
- Any lease / sublease agreement concluded for a period exceeding 12 months must be registered with the authorized government bodies.
- The rights and obligations of the lessee include: provision of premises to the sub-lessee within the agreed period and on certain conditions, to exercise control over the use of the premises for the appropriate purpose.
- The rights and obligations of the sub-lessee include: timely rent, performance of repair work (by agreement), maintenance of the premises in order and use only for their intended purpose.
- The fact of the transfer of the premises by the lessee to the sub-lessee is recorded by the deed of transfer.
- Any violation of contractual obligations entitles each party to terminate the sublease agreement before the end of its term in court.
Rent of municipal non-residential fund
Lease of non-residential premises owned by the municipality is one of the common forms of civil law relations. At the same time, the transfer of municipal property on the terms of a lease agreement can significantly replenish the local budget and, accordingly, is of great importance for the economic development of the regional territory. The most common are transactions for concluding a lease agreement for municipal real estate, in particular, land plots, buildings, individual premises. Less common are cases of lease of operating municipal enterprises. For tenants of premises of the municipal non-residential fund, the moderate cost of lease, its stability, transparency of tenders, on the basis of which the lease of municipal objects takes place, is very important. Accordingly, these factors influence the fact that municipal real estate is more readily rented by entrepreneurs than private property. True, it should be noted that sometimes the unsatisfactory condition of municipal premises is a serious problem for the landlord, because, in addition to natural maintenance, tenants have to invest in more significant work on the restoration of the roof, facades, engineering and communication systems, and this, accordingly, is already capital attachments. In order to somehow interest tenants, municipalities offer various systems incentives: for example, extending the term of the lease taking into account the work performed, reimbursement of the costs paid upon termination of the lease, exemption from rent as a percentage of the estimated cost of the repair work performed, and others. Both individuals and legal entities, as well as citizens of foreign states, can conclude a lease agreement for a municipal non-residential fund. In accordance with Art. 17.1 of the Federal Law "On Protection of Competition" since July 2008, all lease agreements for municipal property are concluded on the basis of the results of tenders, auctions or tenders with the participation of everyone. In accordance with Art. 447-449 of the Civil Code of the Russian Federation, each municipal entity develops its own Regulation on the auction, which contains the rules and procedure for holding, conditions for participants, the procedure for determining the winner and registration of results.
Important! The municipal property lease agreement, which was concluded without holding the relevant auction, is considered invalid.
Assumes the presence of a cadastral passport for the property. Accordingly, if the land is not registered in the cadastral register, the potential tenant must collect a package of documents for it and initially put it on the cadastral register, then an application is submitted for an auction giving the right to lease this municipal property. In the case of sole participation in the auction, they are considered valid and give the tenant the right to conclude a direct contract. The lease agreement for the municipal premises is concluded through the signing of an agreement by two parties. The contract must contain full information about the property, its cadastral number, area and address of the location. To submit an application for participation in the auction and an agreement you will need:
- passport of the future tenant;
- state certificate of registration of a legal entity or individual entrepreneur;
- an application in the form of the lessor indicating the purposes and duration of the lease;
- other documents stipulated by the bidding documentation.
In case of concluding a lease agreement for municipal property for a period of more than 12 months, the tenant must submit information to the Federal Register for entering information about the lease in the unified state register.
In the event that a municipal property lease agreement is concluded for a period of 3 or more years, the tenant acquires the preemptive right to purchase the leased premises into private ownership.
Anna
Good day. I have a commercial space registered as an individual. In 2018 I rented it out (7 months). I'm completely confused, should I file a tax return and pay tax as an individual or as an SP for sleep? thank
Sergey (senior associate)
Hello Anna! If an individual is indicated in the agreement as a lessor, then you need to file a declaration as an individual and pay 13% personal income tax.
Elena Sibirtseva
Hello, I own a store in the village, the population is 4000 thousand people, it became unprofitable to trade, I closed it, rented it out for 4000 thousand rubles. Every year I pay almost 30 thousand property tax for the store, I closed my business. I understand correctly, I must conclude an agreement as a physical. person and submit a declaration after a year? Or is it served on a specific month? Can I show the minimum rental amount? Thank you in advance.
Sergey (senior associate)
Hello, Elena! Yes, you must enter into a lease and file a tax return for the lease payments received next spring. The amount of income will be determined on the basis of the terms of the agreement, what conditions you put, and the tax will be calculated.
Elya
Hello! Can you please tell me if it is possible to rent non-residential premises as an individual. Is there any responsibility if you do not create a SP? Or is it necessary to SP? If you rent as an individual, how and in what time frame should you pay taxes? And how and when to pay taxes if you take it as SP?
Sergey (senior associate)
Hello! If this is your only room that is rented, then it is not necessary to issue an IP. If you rent a room as an individual, then you must annually submit a 2-NDFL tax return and pay the tax on time. If an individual entrepreneur is issued, then the procedure and terms for paying tax depend on which tax system you will be on.
Amon
Sergey (Senior Associate) 02/08/2019 14:02:32 Hello! Without a temporary residence permit or residence permit, you cannot issue the status of an individual entrepreneur. These documents must be provided when registering an individual entrepreneur. But you can rent the premises without registering an individual entrepreneur. If you have only one premises, it is difficult to prove that you are engaged in entrepreneurial activity. Hello, Serey / Thank you very much for the reactive answer)) Another question is if I cannot issue an individual entrepreneur, then how can I pay 13% tax on income. Yes, I want to rent only one room in the Business Center for an office. but would like to legally pay taxes. How can I apply for tax and pay 13% of income? thanks Amon
Sergey (senior associate)
Hello! To pay income tax, it is not necessary to have a residence permit or temporary residence permit. Since you will receive income on the territory of Russia, then you just need to file a personal income tax return every year.
Amon
Good afternoon: I am not a citizen of the Russian Federation and I live abroad. I have an unwanted place in Moscow. I want to rent it out as an office. To open an individual entrepreneur to me, I must have a TRP or a Residence Permit, but since I do not live there, I don’t have, but since a CIS citizen can stay on the territory of the Russian Federation without a visa. What should I do to rent an unwanted place without a Residence Permit? can I register as a private entrepreneur? thank you very much Amon
Sergey (senior associate)
Hello! Without a temporary residence permit or residence permit, you cannot issue an individual entrepreneur status. These documents must be provided when registering an individual entrepreneur. But you can rent out the premises without registration of an individual entrepreneur. If you have only one premises, it is difficult to prove that you are engaged in entrepreneurial activity.
Sophia
Hello! In June, my husband bought a non-residential premises and did repairs there, the worker was without a Russian passport, he was taken away from the FMS and deported to Uzbekistan. In September, we completed the repairs, we signed a free provision agreement with my individual entrepreneur, and I have been opening a beauty salon for an individual entrepreneur there since 2015 (I previously worked and rented a room from an individual entrepreneur). salon 😂 on what basis? If the husband did the repair as an individual?
Sergey (senior associate)
Hello Sophia! This question should be addressed to the employees of the migration service, since it is not known what documents they have and what facts they operate on. If you are going to be held accountable for the illegal use of migrant labor, then your husband, since you have a contract for the free use of the premises only since September.
Valentine
Store in common ownership for 3 co-owners, without division of shares. Can I rent out premises in a store for 9-11 months for trade in the size of 1/2 part of my share (36 sq. M.), As an individual, without an individual entrepreneur, with the filing of an annual declaration on my behalf and pay 13% of the income. If so, can I further renegotiate a short-term contract within the same framework further, without the requirement to open an individual entrepreneur. I am 70 years old and I do not need extra papers at all
Sergey (senior associate)
Hello Valentine! No, you cannot without obtaining the consent of the other owners, since your share has not been allocated in any way.
Alexei
Good afternoon! In order to rent out a garage for a car service, what documents should I provide to the tenant? and do I need to transfer land to commerce and change the purpose of the land for this? T.K. This is a suburban area. The land and the garage are owned.
Sergey (senior associate)
Hello Alexey! It is necessary to provide an agreement and a document on the ownership of the land and garage. To change or not to change the permitted use of the land plot depends on the existing types of permitted use. This should be looked at in the urban planning plan of the territory, possibly in other similar documents.
Alexei
Thank you Sergey! I have one more question for the service. The suburban area is owned, the so-called car service built on it is registered as (GARAGE 100 sq.m.) and there is a certificate for it as my property. Can I work in it as a self-employed person and at the same time pay 4% tax without opening an individual entrepreneur. And if possible, can I rent part of the garage to my father so that he also works and is considered self-employed.? Thank you in advance!
Sergey (senior associate)
Hello Alexey! If you live in the region where the experiment is being conducted, you can register as self-employed. The question regarding the father is resolved in a similar way.
Alexei
Good afternoon! I am the owner of a summer cottage on which I built a garage. Can I rent it out for a car service? And what documents do I need to collect for this? Thank you in advance.
Sergey (senior associate)
Hello Alexey! You, as the owner of the property, have the right to rent it out on the basis of a regular lease agreement. You don't need to collect any documents for this, conclude an agreement and that's it. But you need to be prepared for the fact that neighbors may begin to complain about you, since, most likely, the placement of a car service on a summer cottage plot is not provided for by the permitted type of use of the land plot.
Vladimir
I am engaged in retail trade on UTII. Non-residential premises of 500 m have been built, I want to rent it out how to do it correctly so that there are no problems with the tax authorities (rent it out as an individual or as
Sergey (senior associate)
Hello Vladimir! You can take it as an individual and do not forget to pay personal income tax. You can also take it as an individual entrepreneur with the registration of a legal taxation regime, which can be applied under given view activities. Just pay your taxes on time and there will be no tax problems.
Oksana
Hello. I am an SP on "simplified", I rent out premises for a shopping center, the owner of which is my husband. Are we eligible for property tax exemption. thank.
Sergey (senior associate)
Hello Oksana! Property tax must be paid in any case, regardless of whether the property is rented out or not.
Helena
Good day! We are LLC, we combine UTII and STS. We rent a room from an individual for free and lease it to several tenants. There are individuals among the tenants. Does LLC have the right to lease premises to individuals? Standard contracts. Thank!
Sergey (senior associate)
Hello, Elena! An LLC can sublease premises to any persons, citizens and organizations, if it has such a right under a lease agreement. In theory, such activities can be declared illegal if the lease of premises is contrary to the statutory goals and objectives of the LLC, but this is unlikely.
Grishina Nadezhda Nikolaevna
Good afternoon! I am the only founder of an LLC, I rent a cafe to my daughter I P without rent. Do I need to file a tax return and what taxes should I pay.
Sergey (senior associate)
Hello, Nadezhda Nikolaevna! If you rent out the premises as an individual and have not received any income from this, then you do not need to file a personal income tax return, since there is no taxable income.
Konstantin
Hello! Please tell me if I can rent a semi-basement unwanted room for housing, there is heating, cold water. mountains. sewerage, window, separate exit, high ceilings.
Sergey (senior associate)
Hello Konstantin! You can rent it out as a non-residential premises, since this premises does not have a residential status. But how the tenants will use this premises is another question. If you agree that they live there, then there will be no problems. It is only better not to indicate in the lease that the premises will be used for housing.
Veronica
Hello! SP on OSNO is engaged in wholesale trade. As a natural person, he leases out non-residential premises that belong to him by right of ownership. Payment for rent goes to his card, like an individual. One organization withholds personal income tax and transfers it to the budget. Another pays the rent in full. Can I rent it out as an individual? If not, what is the right thing to do? Or register renting as a type of activity on the STS? thank
Sergey (senior associate)
Hello Veronica! A citizen has the right to dispose of his property at his own discretion, including renting it out. This is not a business activity. But if a citizen has several premises that he rents out, then this is a sign of entrepreneurial activity. Therefore, it is better to conduct this activity as an individual entrepreneur.
Olga
Hello! I am an individual entrepreneur on UTII, retail trade in products, a store owned. I wanted to lease part of the premises. How to do it right? Thank.
Sergey (senior associate)
Hello Olga! Rent out the premises as an individual under a lease agreement. In this case, you will have to pay 13% of personal income tax. You can rent as an individual entrepreneur and apply a simplified or general taxation regime in relation to renting.
Ludmila
Hello! I am the only founder of an LLC, we are located at UTII, I have a non-residential premises in which a store operates, the owner of my LLC premises, would like to rent out for a long time to another LLC, please tell me what taxes will need to be paid and which taxation system is better to switch to, so that less pay these taxes. Is it also necessary for me to contribute to the constituent. change documents, because. the type of activity will change.
Sergey (senior associate)
Hello, Lyudmila! Income received from renting out real estate does not fall under UTII. Therefore, they will have to pay corporate income tax. Alternatively, you can switch to a simplified taxation system. In connection with changes in the type of activity, it is desirable to amend the charter.
anna
Good day. I am an individual owning land. after some time, I opened an LLC (I am the founder) and built an office building on this land. (a free lease agreement was signed between me and the LLC). Is there income here? do i need to submit a 3-ndfl declaration?
Sergey (senior associate)
Hello Anna! In your situation, there is no income, since you do not receive any income from renting out the property. Therefore, there is no need to submit a declaration.
Ludmila
Hello! The store is in shared ownership: 1/2 for an individual and 1/2 for an individual entrepreneur. Phys. the person wants to conclude an agreement with the individual entrepreneur on the free use of non-residential premises, because the individual does not have the opportunity to engage in activities. The sole proprietor will lease the entire store and pay taxes. Will an individual be exempt from property tax for individuals?
Sergey (senior associate)
Hello, Lyudmila! No, it will not, since the ownership is retained by the individual. The tax office will send notifications about the payment of property tax to the owner, regardless of who actually uses the premises.
Anna
Hello, I am renting premises for household services, my lease agreement is free of charge. At the moment, I received a letter from the tax office about adjusting the declaration for 3 kW. 2018 for my type of activity for imputed income And they ask me to send a lease agreement from 2015 to 2018. control “Should the IRS ask me for a lease.
Sergey (senior associate)
Hello Anna! The tax inspectorate has the right to request any documents related to the calculation and payment of a specific tax. If the size of imputed income and related payments is affected by the parameters of lease agreements, then you must provide them. If they do not, then you are not required to provide these documents.
Amelia
Good day! Please tell me, an agreement has been concluded for the free use of non-residential premises between a mother and daughter. The mother, as an individual, transfers the non-residential premises to her daughter for free use for a period of 30 years. The daughter registered an LLC, where she acts as the general director (mother of the chief doctor), on the simplified income minus expenses. Question: Do I need to put the building on the balance sheet of the organization? (it turns out rented?) And who pays the property tax and utilities?
Sergey (senior associate)
Hello! The contract is concluded between individuals, so there is no need to put the premises on the balance sheet of the LLC. Property tax must be paid by the owner of the premises. Payment for utilities is by default borne by the person to whom the premises were transferred for use, but other conditions may be spelled out in the contract.
Galina
Hello, please tell me! There was a need to move to the premises of a store with retail trade (clothing), where the renovation was just finished, but the store does not yet have the status of non-residential premises (in the process, and most likely not for a month). I am SP on UTII. What should I do with the lease agreement, what about tax?
Sergey (senior associate)
Hello Galina! It is better for you to postpone the conclusion of the lease agreement, since it does not have the status of non-residential premises. By law, most types of business activities are prohibited in residential premises. Therefore, it is fraught with problems with the tax.
Pauline
Hello! I am an individual entrepreneur, I own a store building. As an individual, I hand over part of the store to a legal entity, the state registration of the contract was made in 2012. all this time she reported to the tax office and paid tax as from a trading place. SP on UTII. After a desk audit of a legal entity, the tax office received a request to provide explanations or amend tax reporting within 5 days. but according to the Tax Code, the delivery of a part of the store does not fall under UTII, besides, the contract is for an individual, and not with an individual entrepreneur. What are my next steps? And isn't the lessee obliged to act as a tax agent in this case?
Scan_20181015 (3) .pdf
Sergey (senior associate)
Hello Polina! You can refer in your answer that you rented out the premises as an individual and, in accordance with the contract, the tenant had to pay personal income tax for you. But there is little hope that such an explanation will satisfy the tax one, since the premises were leased to the organization for doing business, and as a result, you were the one who had to file income tax returns from renting the premises. In this case, the lessee did not have to act as a tax agent. It is better for you to contact a lawyer in order to deal with the tax audit in more detail, since there is a significant risk of additional tax assessment for you.
Turan
Hello, I do not have Russian citizenship and I have non-residential premises in Moscow. I want to rent it out. How much and how (individual entrepreneur, patent and / or others) should I pay taxes?
Sergey (senior associate)
Hello! You need to open an IP. You will pay taxes depending on the taxation system you choose. The specifics of taxation systems are quite numerous, in a short answer they cannot be disclosed. Therefore, it is better for you to contact a lawyer who will tell you in detail about all the nuances of paying taxes.
Nikita
Good afternoon, tell me please, I rent a room for a children's development and creativity studio, there is no room in the room. Alarm and the like. Tell me, are there any standards for renting premises, what should be in the premises ??? And who should install the alarm system?
Sergey (senior associate)
Hello Nikita! There are no standards for renting premises in the legislation. Each landlord can independently develop such standards, but this is not necessary. But the legislation contains mandatory requirements for premises for a specific purpose. The issue of installing a fire alarm system is decided by the parties to the lease agreement by mutual agreement, that is, as you agree, it will. But usually the landlord must decide such questions, since he is obliged to rent the premises in a condition suitable for further use.
Alexei
Good day! I am the owner of a non-residential premises in Moscow, now I want to rent it out and there are options for both a long-term lease agreement and for 11 months. -Do I need to register as an individual entrepreneur or is it enough to pay tax on 3ndfl? -Second question? When selling premises, as an individual, do I now have the right to deduct for the expenses incurred for acquiring unwanted premises, or is this right only given to residential real estate? - when choosing an individual entrepreneur of 6 or 15 percent, is the right to deduction for the costs incurred for the acquisition of non-residential premises retained?
Sergey (senior associate)
Hello Alexey! If there is only one room, then it is not necessary to register an individual entrepreneur. But you need to pay personal income tax from the income received. The tax deduction is provided only for the purchase of residential property.
stella
We are the managing organization. we received a request with kumi.kumi asks to provide information about the concluded contracts for the maintenance, maintenance and current repair of common property apartment building with tenants renting municipal non-residential premises. question: should the Criminal Code give contracts if the tenant registers everything through kumi? if you can show me an article from the labor code
Sergey (senior associate)
Hello! This issue is resolved at the discretion of the management company, since the KUMI does not have the rights to request information on the economic activities of commercial organizations.
Love
Good day. My mother is a pensioner, at the moment she has an individual entrepreneur at UTII. store owned. Now he wants to close the IP. I will work in the store by opening an IP. Is it possible to work in this store without rent, simply by issuing the right of disposal at your discretion?
Sergey (senior associate)
Hello Love! Of course. If the owner does not mind this, then work as much as you want. The legislation does not say anything about the fact that an individual entrepreneur is obliged to have any premises for rent.
Evgeniy
Hello. I am an individual want to rent a non-residential premises to an individual. a person on my own plot for individual gardening, I need to register the property and how to legally do everything. Thank you in advance.
Sergey (senior associate)
Hello Eugene! If a non-residential premises is a country house, then it is not necessary to register it. It is enough to prescribe in the lease agreement for the land plot that the plot is provided for lease together with the country house.
Alexander
The owner - an individual leases out a small non-residential premises of 12 sq.m. The term of the contract is 11 months. with prolongation, Do you need to pay 13NDFL, every year or register an individual entrepreneur?
Sergey (senior associate)
Hello, Alexander! Personal income tax in any case, according to the law, must be paid. It is not necessary to register an individual entrepreneur, since this activity is unlikely to fall under the entrepreneurial one.
Olga
Good day! The owner of a non-residential premises is an individual who wants to rent it out. But he does not want to register as an individual entrepreneur. Can another individual who is an individual entrepreneur hand it over to us by proxy from the owner? In the power of attorney, the owner is given the right to manage the non-residential premises, including the conclusion of a lease agreement, at a price and on terms at his own discretion with the right to receive money as a lease and dispose of money at his own discretion, payment of taxes, etc. Is this power of attorney recognized as legitimate and, with this wording, will the income from the delivery be recognized as the property of the individual entrepreneur, and not the owner of the individual? faces? and will an individual entrepreneur pay tax on his own?
Sergey (senior associate)
Hello Olga! No, he can not. A power of attorney can only be issued to conclude a lease agreement, but it will still be concluded in favor of the owner. This individual entrepreneur has no rights to lease someone else's premises. But if you are not embarrassed by the fact that the agreement will be legally null and void, then to avoid problems with the tax authorities, you can use this option. In terms of income, everything will depend on who will be the lessor in the contract. If the owner is the landlord, then the individual entrepreneur will not have to pay anything.
Galina
Good day! I have this non-standard situation... IE on OSNO, is engaged in the wholesale trade of groceries and other conservation. In 2017, he built an administrative building. Ownership is registered for each office for him, as for an individual. It was assumed that the objects would be sold, but due to the lack of demand, one office is currently leased, and another is planned to be sold. What to do in this situation and how to keep records? Thank you in advance.
Sergey (senior associate)
Hello Galina! Funds from the rental of premises must be recorded as income received and used in calculating the taxes payable.
Alexei
Hello. I rent a room, written a statement to terminate the contract, under the contract for 2 months. 1.5 months later the Landlord entered into a lease agreement for the same premises with a new person. Now I have been billed for 15 days that the new tenant uses the premises. The contract with me has not been terminated yet. Whether their actions are legal to demand payment for these 15 days. thanks for the answer
Sergey (senior associate)
Hello Alexey! To answer this question, you need to look at the terms of the lease. Apparently, the agreement contains a clause about the payment of lease payments in the event of early termination of the agreement. In itself, such a condition does not contradict the current legislation.
Alexey Kraynov
Hello. I plan to purchase non-residential premises for renting. As long as I am as an individual and acquire it for myself, in the future I plan to open a SP and will hand over it as a SP. Tell me is it possible to lease this way or tell me best options what to do about renting
Sergey (senior associate)
Hello Alexey! You can easily rent out the premises as an individual. This legislation does not contain any restrictions. For such activities, it is not even necessary to issue an individual entrepreneur. It is enough to submit a tax return every year.
Natalia
Hello! I am a sole proprietor and I rent non-residential premises too Payment goes to the current account. Now the Lessee has announced that they have a reorganization and they will already be LLC. They ask to renegotiate the contract. Will anything change for me from this in the further activity of renting them out? For financial and economic issues or for payment by settlement? Thank.
Sergey (senior associate)
Hello, Natalia! There shouldn't be any fundamental changes. They may depend on what taxation system the LLC will be on. Perhaps they will ask you to provide certain documents related to the conclusion and execution of the lease agreement.
Raisa
Hello Sergey. I have such a situation there is a shopping kiosk in the market that I constantly subleased paid for it ENVD, since the market administration at one time took good input for installing the kiosk, but it was not prescribed in the lease agreement ... This is a sublease and free use agreement .Since now the tax requirements have become tougher with the introduction of the KKM, my tenant did not want to work with the cashier, I decided to close the ENVD and open a lease by introducing an additional OKVED ... Tell me the lease agreement for non-residential premises between the SP and the individual will fit in my situation. I want to protect myself, because I don't trade there and I want the tenant to be responsible for his activities? what should I do right?
Sergey (senior associate)
Hello! The lease agreement for non-residential premises is not provided for by law. Non-residential premises can be rented only on the basis of a lease agreement.
Svetlana
Good day! Please tell me what kind of lease agreement you need to conclude in order not to lose the right to a licensed type of activity? I own the premises, as an individual I rent out an LLC, where I am the founder, I want to rent one office to another LLC. This LLC has no licensed activity. What agreement should I conclude, which was without consequences? Thank!
Sergey (senior associate)
Hello Svetlana! If you rent as an individual, then the LLC has nothing to do with it. You can enter into a regular rental agreement for a property.
Olga
Hello. LLC rents part of the premises to a legal entity, the contract is long-term, the numbers of the premises are prescribed in the contract. Is it possible to apply the property tax exemption to other premises that are not leased.
Sergey (senior associate)
Hello Olga! It is unlikely, since during the check it will be revealed that, in fact, not all of the premises, registered as a single object, were rented out, but only part of it.
Marina
Hello! Tell me if the LLC needs to be entered into the Unified State Register of Legal Entities and the Charter the new kind OKVED, if you plan to rent the premises belonging to the LLC? The main activity is sales, services.
Sergey (senior associate)
Hello Marina! This information must be entered, otherwise there may be problems with the tax office.
Natalia
Hello. Can a charitable foundation sublet part of the premises? Foundation based on What taxation? VAT and income tax ?.
Sergey (senior associate)
Hello, Natalia! Maybe if the money received from the sublease goes to charity. The income generated is likely to be treated as income when determining income taxes.
Tatyana
Hello! A building lease agreement has been concluded with one legal entity, registered with Rosreestr. The building is maintained by this legal entity independently. Now part of the building needs to be leased to the second legal entity. by registering with Rosreestr. Can these legal entities independently operate and maintain the building without the participation of the owner. The owner agrees.
Sergey (senior associate)
Hello Tatiana! If there is no contradiction between the two lease agreements, then the maintenance of the building can be assigned to these legal entities by the appropriate wording in the text of the agreement.
Yulia
Good afternoon. Landlord shopping center, Tenant stationery store, opposite the toy store in the shopping center. The stationery store has expanded the range by adding toys, games, construction sets, etc. Question Does the lessor of the Shopping Center have the right to limit the assortment portfolio of the tenant, referring to the presence in the shopping center of another tenant with the same type of assortment?
Sergey (senior associate)
Hello Julia! If such conditions are provided for by the contract, then the lessee is obliged to fulfill it. But in the absence of such provisions in the contract, the legislation does not give the lessor the right to regulate the range of tenants.
Edik
Tell me please, I have a municipal premises in lease, I have the right to change the activity of the work, I want to change the type of activity for the gym for the trade thanks in advance !!!
Sergey (senior associate)
Hello! If the purpose of the premises is not specified in the lease agreement and no redevelopment or reconstruction will occur when the purpose is changed, then you can change the type of activity.
Evgeniy
Hello. For a long time I was an individual entrepreneur who rented a car repair box on the territory of a car wash. I installed roller shutters and paid the security deposit for the last month. The agreement was not concluded, the money was transferred monthly in cash. I decided to move out. Warned 2 weeks in advance. The security deposit and money for the roller shutter, or the roller shutter itself, refuses to return. Is it possible to bring them administrative or criminal liability or return theirs?
Sergey (senior associate)
Hello Eugene! You can try to contact the police with a statement about the commission of arbitrariness, since the owner of the car wash tried to realize his civil rights in a manner not prescribed by law.
helena
Hello! I am an individual entrepreneur, I own a store with a total area of \u200b\u200b40 square meters where I carry out trading activities, can I rent out 15 square meters from this area to another individual entrepreneur, these 15 square meters are fenced with a glass showcase. I conduct tax reporting as UTII and USN 6 without a cash register. How will the leased area be reported?
Sergey (senior associate)
Hello, Elena! You can rent out part of the premises. You will need to include rental income as part of your taxable income.
Magomed
Hello. I live in the Republic of Ingushetia, for my minor nephews-orphans 10 and 13 years old, I built a small room of 14 by 5, dividing it into 4 small rooms of 12 square meters each for renting out for small shops. The room was built on the children's own territory. Explain, please, whether it is necessary to pay tax on the lease of such premises and whether it is necessary to register an individual entrepreneur? I am acting as a private person, as a close relative in a relationship of trust. The total income from all premises is no more than 45 thousand per month and minus the cost of gas, electricity, repairs and maintenance of premises. Average monthly income is summer period 35-38 thousand rubles, the collection period is 30-33 thousand rubles. I receive all the funds in cash and go to improve the living and living conditions of children who have a survivor's pension. Mother doesn't work. Thank!
Sergey (senior associate)
Hello! Such activity can be regarded as entrepreneurial, but in any case, it is necessary to pay personal income tax, regardless of the registration of an individual entrepreneur.
Magomed
Continuing the topic of Ingushetia, the tax inspector suggested that I conclude a lease agreement and submit it to the tax office, is it obligatory to conclude such agreements with tenants from the point of view of the law, if you do not register an individual entrepreneur and pay tax as an individual, tenants are reliable guys for whom the word is more expensive than the law? And another question - if it is possible, is it profitable in this situation to register an individual entrepreneur to pay according to a simplified system 6? This is the first time I come across such things and therefore I apologize. Thank!
Sergey (senior associate)
By law, real estate lease agreements must be concluded in writing, otherwise they are invalid. In certain cases, it is more profitable to register an individual entrepreneur and pay 6 from the proceeds than to pay 13 personal income tax. But when registering an individual entrepreneur, you will have to draw up written agreements with lessors to confirm the legality of the proceeds.
Magomed
Thank you Sergey for your help. And in conclusion, if I would like to ask one more question, should the lease agreement be certified by a notary or can it be presented in a simple written form? Thanks for the help. All the best!
Sergey (senior associate)
All that is required is a simple written contract. It is not necessary to certify it with a notary. This is stated in Art. 651 of the Civil Code of the Russian Federation. Good luck!
Masha
Hello. Please tell me, if the building is the property of the city, the premises in this building are rented by MUP "...", the director of this MUP can lease these premises, for example, LLC? Or can LLC sublease from the municipal unitary enterprise or directly conclude a lease agreement with the city administration?
Sergey (senior associate)
Hello Maria! MUP can sublease premises only with the consent of the lessor under the main lease agreement. LLC can conclude a lease agreement directly with the administration, subject to the termination of the lease agreement with the CBM.
Irina
Good afternoon, at what point is it necessary to register a SP for renting out non-residential premises if the premises itself has not yet been built? Is it important for the subsequent sale of the premises?
Sergey (senior associate)
Hello Irina! Preferably before receiving the first money from the lease of premises. Having an individual entrepreneur status does not have any meaning for the purpose of selling property.
Victor
Hello! I am an individual entrepreneur, I report on the UTII form. For my work, I conclude a lease agreement for non-residential premises with the owner of an individual. Should VAT be added to the rent?
Sergey (senior associate)
Hello Victor! Renting out property is not included in the object of VAT taxation. Therefore, the lease agreement does not need to include VAT conditions.
Tatyana
Sergey, good afternoon. I am the Landlord, can I rent one non-residential premises by agreement of the Tenants to two LLCs at the price per m2 set by the company for each? Or is it necessary to share? One LLC was registered earlier and pays rent per m2, the second LLC is in the process of registration at the same address. What about two? Thank.
Sergey (senior associate)
Hello Tatiana! In order to avoid misunderstandings, it is better to indicate in each agreement a specific part of the premises leased to each LLC. Of course, there is no direct indication in the law about this, but by providing the same premises to two organizations at the same time, you not only create uncertainty, but theoretically risk being prosecuted for fraud. There is also a risk that these agreements will be invalidated.
Natalia
Hello. An individual rents out non-residential real estate to the organization, does not pay tax. Who is responsible for non-payment of personal income tax - an individual or an organization? If, according to the law, the tax agent of an individual in this situation is an organization, therefore, the payment of personal income tax is its obligation and the organization is also responsible for non-payment?
Sergey (senior associate)
Hello, Natalia! The responsibility should be borne by the organization, which must calculate and pay personal income tax for an individual.
Angela
Good evening. I am an individual, I rent out non-residential premises, the lease is concluded for 11 months. Do I have to pay tax?
Sergey (senior associate)
Hello! You are required to pay personal income tax 13 from the income you received.
Dina
Hello! I would like to clarify one question. I saw a situation similar to ours: an individual leases an LLC on a sublease of land. plot for the same price that removes 15,000 rubles. The individual does not have any income. But what about the duty of a tax agent? After all, the LLC is obliged to withhold and transfer personal income tax? Should we be concerned about where and how much the individual transfers the payment received from us? Or can you show both contracts to the tax office so that we do not receive additional tax? Thank!
Sergey (senior associate)
Hello! Formally, in accordance with tax legislation, an LLC is obliged to withhold personal income tax and transfer it to the budget.
Victoria
Good day! Can you please tell me what is the penalty for leasing office space to several legal entities at the same time?
Sergey (senior associate)
Hello Victoria! Administrative responsibility for such actions has not been established. But under certain circumstances, the landlord can be prosecuted for fraud. Also, in the course of civil proceedings, the defrauded tenant may demand compensation for the damage and losses caused to him.
Galina
Hello, I am an individual who owns a non-residential premises, can I rent myself out as I am registered as an individual entrepreneur with a royalty-free agreement. How to draw up an agreement so that there are no claims from the tax. Sincerely.
Sergey (senior associate)
Hello Galina! According to the law, such an agreement cannot be concluded, since both parties to the agreement will actually be one person, that is, you.
Galina
Hello! Sergey, thanks for the answer. I am 67 years old, I think that I can rent one room without the formation of an individual entrepreneur. On the same basis, I believe that it is possible to conclude an agreement between me and my individual entrepreneur who is located on the UTII for the free use of this premises, since it will not bring me income. According to Article 608 of the Civil Code of the Russian Federation, the owner can lease his property. Obtaining the status of an individual entrepreneur does not impose on a person the obligation to additionally transfer property to his IP. The only differences are in the system of taxation and social benefits. Please tell me if I think correctly. Respectfully.
Sergey (senior associate)
It doesn't matter that you will not receive income. In accordance with Art. 413 of the Civil Code of the Russian Federation, the obligation is terminated on the basis of the coincidence of the debtor and the creditor in one person. You cannot lease property to yourself, either for rent or for free use.
Andrei
good day! as an individual I am the owner of the commercial real estate. I rent real estate to LLC as an individual. I have my own LLC, where I am the only founder and director. Can I issue a lease agreement between two LLCs or do I need to register an individual entrepreneur? And if so, which is more profitable: an agreement between an LLC and an LLC, an individual entrepreneur with an LLC, or an individual with an LLC? Thank!
Sergey (senior associate)
Hello Andrey! In order for the LLC to be able to lease out the premises, it is necessary to find this property in the ownership of the LLC or on a lease basis with subsequent sublease. Therefore, at the moment you will not be able to rent out the premises on behalf of the LLC. The most convenient option would be the current scheme, since it will not be necessary to include the premises in the assets of the LLC, and to conduct appropriate tax accounting.
Andrei
Continuing the topic. What if, as an individual, I have an agreement with an LLC for the right to use it free of charge? and on the basis of this agreement the LLC will conclude a sublease agreement
Sergey (senior associate)
This option is admissible, at least it does not contradict the legislation.
Nellie
Hello! A landlord with the status of an individual entrepreneur for a long time rented out parts of the premises to different tenants for retail trade... I didn’t give out payment documents in cash. A year and a half ago I sold the premises. And now it turned out that through the courts. I was hanged about 100 thousand in debt, supposedly this money was not paid ... Is it possible to prove the opposite and how legitimate it is? Thank you in advance.
Sergey (senior associate)
Hello! Perhaps, but painstaking work will be required to study documents and other evidence. In court, it is necessary to prove the existence of abuse of the landlord's right. This can be proved by the fact that he never asked for money. If there was a debt, then he could terminate the contract or, at least, constantly remind of the debt. Defense tactics should be built depending on the specific circumstances. It is best to have a professional lawyer on your side.
Oksana
Hello, we are two individuals, owners of non-residential premises in equal shares. We want to lease non-residential premises to a legal entity. To do this, we will open the SP USN or a patent for one owner. Is it allowed to conclude a lease agreement only from one of the owners, what powers of attorney are needed in this case, contracts from the second owner in favor of the first? Payments from a legal entity will go to the account of the individual entrepreneur and the individual entrepreneur will pay taxes on income. Or is it necessary to enter into an agreement with multiple persons on the side of the landlord and the legal entity will pay rent to two landlords equally and each must pay tax on their income?
Sergey (senior associate)
Hello Oksana! To rent out the entire premises in any case, it is necessary to obtain the will of the second owner. It can be expressed in the form of a power of attorney to the first owner to conclude a lease on his behalf. The second method was also indicated by you. But in the first case, the first owner is not exempt from the obligation to pay taxes.
Lera
hello. Tell me if the landlord can conclude a lease agreement with two legal entities. if one was concluded a little earlier, and medical services are provided there until June 1, and another company needs this agreement only for now to obtain a license and the agreement states that actual use begins only from June 1, subject to obtaining a license. Thank you in advance
Sergey (senior associate)
Hello! The legislation does not contain a prohibition on the conclusion of such agreements. It is just that in the second contract it is necessary to indicate from what time the lease will begin. You can also conclude a preliminary contract with a second company.
SERGEY
Hello! We are LLC under the simplified taxation system lease municipal non-residential real estate, we want to rent part of the premises for office to another LLC. What tax should we pay?
Sergey (senior associate)
Hello Sergey! None. Income from renting out property will be included in income to determine the tax base for the simplified taxation system.
Sergey
Good day! We are VAT specialists who want to rent non-residential premises from a contractor. What tax to pay in the end ???
Sergey (senior associate)
Hello Sergey! In this case, no VAT is allocated or paid.
Sergey
Thanks you
Helena
Good day! If I have, like nat. persons have commercial property. I want to use it for personal purposes: a dance studio, where I will teach the subscription system. Plus, I want to rent out the hall hourly to other instructors. What taxes do I need to pay and which BUT system should I choose? Thank!
Sergey (senior associate)
Hello, Elena! Everything will depend on how you arrange your activity: individual entrepreneur or LLC. Each type has its own characteristics of taxation.
Valery
Hello, I want to buy a room with a CBM tenant, the lease agreement contains the price including VAT. Will the rent be reduced as I am not a VAT payer. Thank you.
Sergey (senior associate)
Hello Valery! This issue must be resolved by agreement with the tenant by concluding an additional agreement.
Yuri
Hello! I am a private person, the owner of a new office. I intend to lease the office to a legal entity. What do you advise, to register an individual entrepreneur to pay tax 6, or is it better to file a personal income tax return at the end of the year? If the latter, then during the first year of the lease, how can I prove to the fiscal authorities that I plan to subsequently submit a declaration and pay the taxes owed?
Sergey (senior associate)
Hello Yuri! It will be calmer to register an individual entrepreneur. And it will be easier for tenants to work with individual entrepreneurs, and not with a private owner. In addition, in fact, your activity is entrepreneurial and there is a risk of being prosecuted for illegal business.
Olga
Hello. I am an individual entrepreneur, registered a few days ago. Has not been registered with the tax office yet. I want to rent a space for a shop. The owner of the premises is not an individual entrepreneur. Can I conclude a lease agreement with an individual? What is the risk for both sides?
Sergey (senior associate)
Hello Olga! You can conclude an agreement with an individual. This is not prohibited by law. No negative consequences from this it will not.
Valentine
I am the owner of a non-residential premises that I want to rent out. But I don't want to register as an individual entrepreneur. Can my nephew, who is an individual entrepreneur, take it? Do I need to somehow formalize my relationship with my nephew? What tax will he pay?
Sergey (senior associate)
Hello Valentine! A nephew can rent it out if he himself officially receives the right to use the premises, for example, he takes it from you for free use. There must be a lease or free use agreement between you. His taxation will be determined by the tax payment system he chooses.
