23 characteristics of the lease agreement concept elements types. Lease contract
Article 606. Lease agreement
The fruits, products and income received by the lessee as a result of the use of the leased property in accordance with the agreement are his property.
Article 607. Lease objects
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) can be leased.
The law may establish types of property the rental of which is prohibited or limited.
2. The law may establish the specifics of leasing land plots and other isolated natural objects.
3. The lease agreement must contain data that makes it possible to definitely establish the property to be transferred to the lessee as the leased object. In the absence of this data in the contract, the condition regarding the object to be leased is considered not agreed upon by the parties, and the corresponding contract is not considered concluded.
Article 608. Lessor
Article 609. Form and state registration of the lease agreement
Article 610. Term of the lease agreement
Article 611. Provision of property to the tenant
Article 612. Lessor’s liability for defects in leased property
Article 613. Rights of third parties to leased property
Article 614. Rent
KINDS:
Rental agreement, Rent Vehicle, Rental of buildings and structures, Rental of enterprises, Financial lease (leasing), Residential lease agreement
14. Lease agreement. Under a lease (property lease) agreement, the lessor (lessor) undertakes to provide the lessee (tenant) with property for a fee for temporary possession and use or for temporary use. 15. Leasing agreement. Under a leasing agreement, the lessor undertakes to acquire ownership of the property specified by the lessee from a seller identified by him and to provide the lessee with this property for a fee for temporary possession and use for business purposes. 16.Rental agreement. Only non-consumable items can be leased objects, i.e. those whose properties do not change during their use. The form is predominantly written, because one of the parties is always a legal entity. Rental – movable property, usually for household purposes. Duration – up to 1 year. This is a public contract (i.e. anyone who wants it cannot be refused). 17. Enterprise lease agreement 1. Under a lease agreement for an enterprise as a whole as a property complex used for business activities, the lessor undertakes to provide the lessee for a fee for temporary possession and use of everything that is the enterprise and belongs to it.2. The rights of the lessor, obtained by him on the basis of a permit (license) to engage in the relevant activity, are not subject to transfer to the lessee. 18. Residential rental agreement 1. Under a residential lease agreement, one party - the owner of the residential premises or a person authorized by him (lessor) - undertakes to provide the other party (tenant) with residential premises for a fee for possession and use for living in it.2. Legal entities may be provided with possession and (or) use of residential premises on the basis of a lease or other agreement. A legal entity may use residential premises only for the residence of citizens. SHORT-TERM - up to one year, LONG-TERM - up to five years (Article 683).CONTRACT CONTRACT: CONCEPT, ELEMENTS, EXECUTION. TYPES OF CONTRACTS.
Lease agreement (property lease) A civil contract is recognized, by virtue of which the lessor undertakes to provide the lessee with certain property for temporary possession and use or for temporary use, and the lessee must pay rent for this to the lessor. At the same time, the fruits, products and income received by the lessee as a result of the use of the leased property in accordance with the agreement are his property (Article 606 of the Civil Code).
The last provision corresponds to the rule establishing the general rule that proceeds received as a result of the use of property by any person (non-owner) belong to the person using the property legally (Article 136 of the Civil Code).
Characteristic features of a lease agreement:
1) Transfer of property carried out by the lessor (tenant), not accompanied by a transfer of ownership for this property to the lessee (tenant) (the difference between a lease agreement and contracts such as, for example, purchase and sale, barter, loan).
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It is also noteworthy that the tenant (tenant) is given not only the right to use the leased property, but also general rule also has the right to own the said property. In other words, he gets the opportunity not only to extract useful properties from the leased property, but also to own it, to be its title owner. In those cases where the operation of the relevant property can be carried out without owning the latter, it is enough for the tenant to receive this property for use (for example, the owner, while retaining possession of the building, transfers to the tenant the right to use certain premises).
The use of property under lease is necessarily associated with its exploitation by the lessee, with the latter’s appropriation of the fruits, products and income received as a result of the use of the leased property. This quality distinguishes a lease agreement from an agreement for the provision of paid services, which may also be associated with the temporary use of the contractor’s property by the customer, whose interest, however, is reduced to receiving the service as such, excluding the possibility of appropriating the fruits, products and income that the use provides relevant property.
Giving the tenant the status of title owner allows us to optimally solve the problem of protecting his rights and legitimate interests related to the leased property. This means providing him, as the title owner, with proprietary methods of protection against encroachments by third parties on the leased property. This possibility follows from Art. 305 of the Civil Code, according to which the right to reclaim property from someone else’s illegal possession ( vindication claim), as well as the protection of rights from violations not related to deprivation of possession (negative claim), also belong to a person who, although not the owner, owns the property on the basis provided by law or contract.
Giving the tenant the status of title owner also allowed the legislator to additionally ensure his rights by using another element of property law relations, namely succession rights. This idea was implemented by including a special rule in the Civil Code that determines the fate of the lease during the transfer of ownership of the leased property. The transfer of ownership or other limited real right to leased property to another person is not grounds for changing or terminating the lease agreement (Clause 1, Article 617 of the Civil Code).
And another one characteristic lease agreement relating to the right to use the leased property. In modern civil law, the right of use belonging to the tenant is not interpreted as broadly as it was in pre-revolutionary Russian civil law. In any case, it does not include the right of the tenant to sublease the leased property. Rather, the Civil Code provided for a reverse presumption: the tenant does not have the right to sublease the leased property, except in cases where such a right is granted to him by the lessor (clause 2 of Article 615).
2) The Civil Code reveals the desire of the legislator to ensure detailed and direct regulation of the lease agreement, in any case, those issues that are common both to the lease agreement and to its individual types (which does not at all mean a limitation of the principle of freedom of contract in this area). In this way, all basic legal relations arising from the lease agreement are regulated:
- the term of the contract and the consequences of its expiration;
- the procedure for providing property to the tenant;
- form and procedure for paying rent;
- obligations of the parties to maintain the leased property;
- the tenant's pre-emptive right to renew the contract;
- the fate of property improvements made by the tenant, etc.
3) The identification of certain types of lease agreements (with the exception of rental, temporary charter, leasing) was made in the Civil Code not on the basis of any single classification criterion, but depending on the type of property being leased and the special subject composition.
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Rental agreement is allocated as a separate type of lease agreement based primarily on the subject composition: the lessor here can only be a person who professionally rents out property as a permanent business activity, as well as on the purposes of the tenant’s use of the leased property (these purposes must be of a consumer nature).
Lease contract(chartering for a time) of a vehicle has the peculiarity that the use of the vehicle being leased requires its management and its qualified technical operation by a professional crew.
Concerning leasing agreement (financial lease), then the main qualifying features that make it possible to distinguish it as an independent type of lease agreement are that in these relations, in addition to the lessor and the tenant, the seller of the property being leased is involved, and also that the legal relations arising from this agreement, in their own way The contents represent a combination of lease and purchase and sale obligations.
From point of view general characteristics of civil obligations the lease agreement is:
- bilateral,
- consensual
- compensated,
- mutual (synallagmatic) agreements.
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The lease agreement is consensual, since it is considered concluded from the moment the parties reach an agreement on its essential terms, and the moment the agreement enters into force is not associated with the transfer of the leased property to the lessee. The actual transfer of the leased property to the tenant represents the execution of the concluded and entered into force lease agreement on the part of the lessor. Therefore, in cases where the moment the agreement enters into force coincides with the actual transfer of the leased property, we can talk about a special procedure for concluding a lease agreement and that it is executed at the time of conclusion, but not about the real nature of the agreement.
The lease agreement is compensated, since the lessor, for fulfilling his obligations to transfer the property into possession and use to the lessee, must receive consideration from the latter in the form of payment of rent.
The lease agreement is bilateral, since each of the parties to this agreement (lessor and tenant) bears obligations in favor of the other party and is considered the debtor of the other party in what it is obliged to do in its favor, and at the same time its creditor in what it has the right to demand from it . Moreover, in the lease agreement there are two counter-obligations, equally significant and important: the obligation of the lessor to transfer the property to the tenant for possession and use and the obligation of the tenant to pay rent, which mutually determine each other and are, in principle, economically equivalent. Therefore, the lease agreement is a synallagmatic agreement.
The synallagmatic nature of the lease agreement is expressed in the fact that in all cases the tenant is responsible for the counter-fulfillment of his obligations, i.e. The fulfillment of the tenant's obligations to pay rent is conditioned by the landlord's fulfillment of its obligations to transfer the property into possession and use of the tenant (clause 1 of Article 328 of the Civil Code). In other words, the tenant must not fulfill his obligations to pay rent until the lessor fulfills his obligations to transfer the leased property to him.
Legal consequences of recognizing a tenant subject of counter execution obligations are that if a party fails to provide the performance stipulated by the contract or there are circumstances clearly indicating that such performance will not be carried out within the established period, the subject of counter-performance has the right to suspend the performance of its obligation or completely refuse to perform the contract and demand compensation for losses (Clause 2 of Article 328 of the Civil Code).
Essential terms of the lease agreement
In modern legal literature one can often find the judgment that an essential condition of a lease agreement is only its subject matter, which usually means the property being leased. Such judgments are based on a more general view of the essential conditions of any civil contract. According to this view, only those terms can be recognized as essential terms of a contract, the absence of which in the text of the contract entails recognition of it as not concluded.
It seems that this approach is logically incorrect, since in this case the very concept of “essential terms of the contract” is defined by indicating the consequences of the absence of such terms in the contract. In addition, the content and very existence of one of the most important categories of contract law are made dependent on the technique of legislative work.
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To clarify the essence of the concept of “essential terms of the contract,” it is necessary to answer the question of what aspect of the concept of “contract” we are talking about when we analyze the problem of the essential terms of the contract. A contract-transaction is a legal fact, which in principle cannot have its own content, including any essential conditions. An agreement is a document, i.e. a certain text consisting of clauses also cannot serve as a source of all the terms of the contract, since many of them are determined by imperative and dispositive norms, as well as business customs (paragraphs 4, 5 of Article 421 of the Civil Code). Consequently, the study of the essential terms of the contract involves an analysis of the contract - a legal relationship, the content of which is by no means limited to the clauses contained in the text of the contract.
If there is a dispositive rule regarding any condition of the contract, then the absence in the text of the contract (i.e. in the contract - document) of a clause defining this condition does not mean at all that the corresponding condition is absent from the contract. In this case, of course, we mean the contract as a legal relationship. This conclusion follows from the analysis of the provisions contained in paragraph 4 of Art. 421 of the Civil Code, according to which in cases where a condition of the contract is provided for by a norm applied insofar as the agreement of the parties does not establish otherwise (dispositive norm), the parties may, by their agreement, exclude its application or establish a condition different from that provided for in it. In the absence of such an agreement, the terms of the contract are determined by a dispositive norm. That is why (and not due to the fact that the condition of the contract loses its quality as an essential condition) the contract, in the absence of a corresponding condition in its text, cannot be recognized as not concluded.
Now let's turn to clause 1 of Art. 432 of the Civil Code, which contains a definition of the essential terms of the contract, which include conditions on the subject of the contract, conditions that are named in the law or other legal acts as essential or necessary for contracts of this type, as well as all those conditions regarding which, at the request of one of the parties must reach an agreement.
Among all the conditions of any contract, it is necessary to highlight those conditions that constitute the formative features of the corresponding contractual obligation (reflect the nature of the contract) and therefore are included by the legislator in the very definition of a particular contract. Such conditions are undoubtedly essential terms of the contract, because by naming them (including them in the definition of the contract), the legislator thereby makes it clear that these conditions are necessary at least for this type of contractual obligation.
Taking into account the legal definition of a lease agreement, namely: under a lease agreement (property lease), the lessor (lessor) undertakes to provide the tenant (tenant) with property for a fee for temporary possession and use or for temporary use, we must conclude that Conditions on the lease term and rent certainly relate to the essential terms of the lease agreement. Another thing is that the Civil Code includes discretionary rules that make it possible to determine these terms of the contract in the case when the text of the contract does not contain the corresponding clauses (Articles 610, 614), however, this circumstance does not mean that the conditions on the lease period and rental fees are not essential terms of any lease agreement.
The first among all the essential conditions of a civil contract in paragraph 1 of Art. 432 of the Civil Code names a condition on the subject of the contract. It must be emphasized that the subject of the lease agreement is not at all limited 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 obligated party must perform (or, accordingly, refrain from performing them). As noted by D.I. Meyer, “the subject of the contract is always the right to another’s action...”.
Subject of the lease agreement
The subject of any contract is the actions (or inaction) that the obligated party must perform (or, accordingly, refrain from performing them).
Subject of the lease agreement are:
- actions of the lessor to provide the tenant with possession and use of the leased property, to ensure its proper use by the latter (carrying out major repairs, refraining from actions that create obstacles to the use of property);
- actions of the tenant to maintain the property and use it for the purpose specified in the agreement, to pay rent, as well as to return the leased property at the end of the lease period.
Taking into account the specifics of lease legal relations, namely: the inclusion in their content of some proprietary elements (the right of succession, proprietary methods of protection), as well as endowing the tenant with the status of the title owner, we can say that the subject of the lease agreement includes two types objects:
- the first type - corresponding actions of obliged persons;
- of the second type - property that, as a result of such actions, is given into the possession and use of the tenant, and at the end of the lease period is returned to the lessor.
The subject of the agreement is an essential condition of the lease agreement, just like any other civil contract. The Civil Code establishes a special rule: the lease agreement, under penalty of being declared unconcluded, must contain data that makes it possible to definitely establish the property to be transferred to the tenant as the object of the lease (clause 3 of Article 607). This provision applies only to the leased object, and does not exhaust the essential terms of the lease agreement, as is often believed in the legal literature. Simply, the absence in the text of the agreement of other clauses regulating the actions of the parties to provide the leased property to the tenant, ensure its maintenance, pay rent, return the property to the lessor, is compensated by dispositive rules that determine the procedure and timing of these actions.
Thus, in order to recognize a lease agreement as concluded, the parties are actually required to agree and provide directly in the text of the agreement a condition regarding the property that is the subject of the lease. All other conditions related to the subject of the agreement can be determined in accordance with the dispositive rules contained in the Civil Code.
The second group of essential conditions, which are indicated directly in the text of the Civil Code (clause 1 of Article 432), includes conditions that are named in the law or other legal act either as essential or as necessary for contracts of this type.
For example, in accordance with paragraph 4 of Art. 15 of the Federal Law of October 29, 1998 “On Leasing”, the leasing agreement must contain the following essential provisions:
- an accurate description of the leased item;
- the volume of transferred property rights;
- name of the place and indication of the procedure for transferring the leased asset;
- indication of the validity period of the leasing agreement;
- the procedure for balance sheet accounting of the leased asset;
- the procedure for maintaining and repairing the leased item;
- a list of additional services provided by the lessor on the basis of a comprehensive leasing agreement;
- indication of the total amount of the leasing agreement and the amount of remuneration of the lessor;
- payment procedure (payment schedule);
- determination of the obligation of the lessor or lessee to insure the leased asset against risks associated with the leasing agreement, unless otherwise provided by the agreement.
The last group of essential terms of the contract consists of all those conditions regarding which, at the request of one of the parties, an agreement must be reached. This group of essential terms of the contract has legal significance only at the stage of concluding the contract (pre-contractual contacts of the parties), which is completely lost from the moment the contract is considered concluded.
Comment
Arbitration and judicial practice does not include all the terms of the contract that were contained in the offer or acceptance at its conclusion as essential conditions. This requires that, in relation to the relevant term, one of the parties expressly states the need to reach an agreement under the threat of refusal to conclude the contract. In practice, it often happens that the parties, when concluding an agreement, did not resolve differences, for example, about the amount of the contractual penalty for failure to fulfill obligations, but then fulfilled the terms of the agreement. And only when a dispute arises in connection with the application of liability, one of the parties declares that the contract should be considered not concluded, since at one time no agreement was reached on the terms of the contract on the amount of the penalty. In this case, the contract is recognized as concluded (but without a condition on the amount of the penalty), bearing in mind that when concluding the contract, neither party made a statement about the need to reach an agreement on the disputed term of the contract.
A slightly different approach is observed in the practice of concluding international commercial agreements. The UNIDROIT (International Institute for the Unification of Private Law) Principles of International Commercial Contracts provide that a response to an offer that is intended to serve as an acceptance but contains additional or different terms that do not change the terms of the offer is an acceptance unless the offeror objects to those terms without undue delay. reasoning. If he does not do this, then the terms of the contract will be the terms of the offer with the changes contained in the acceptance (Article 2.11). Thus, among the conditions contained in the acceptance that are additional or different from the offer, those that do not significantly change the terms of the offer are distinguished. And in this case, the contract is recognized as concluded with these changes, unless the offeror objects to them without undue delay. In actual commercial practice, the answer to the question of whether the conditions of the offer significantly change the conditions proposed in the acceptance, which differ from them, depends on specific circumstances, in particular, on the extent to which the different conditions proposed in the acceptance are usually used in the relevant field of business activity and therefore whether they are unexpected for the offeror. In any case, as a general rule, additional and different conditions relating to the price or method of payment, the place and deadline for fulfillment of a non-monetary obligation, the scope of responsibility and the procedure for resolving disputes between the parties are considered a significant change in the offer.
Rental period
The period of possession and use of the leased property by the tenant has always been recognized as an essential condition of the lease agreement (lease of property).
The Civil Code provides that a lease agreement is concluded for a period determined by the agreement, but it allows the conclusion of an agreement without specifying the lease period for the property. In this case, the lease agreement will be considered concluded for an indefinite period. The legal consequences of executing an agreement without specifying the rental period are that each of the parties to such an agreement receives the right to unilaterally refuse it at any time subject to warning about this from the other party one month in advance, and when renting real estate - three months in advance (clauses 1, 2 of Article 610).
The law may provide for deadlines for agreements in relation to certain types of leases or leases of certain types of property. In this case, regardless of whether the parties indicated any lease period in the agreement, upon expiration of the deadline established by law, the lease agreement will be considered terminated (clause 3 of Article 610 of the Civil Code).
In cases where, at the end of the lease agreement, the tenant continues to use the property and the lessor does not object to this, the agreement will be considered renewed on the same terms for an indefinite period. Consequently, each party may demand termination of such an agreement by warning the counterparty at least three months in advance (Article 610 of the Civil Code).
Form and state registration of the lease agreement
The requirements for the form of a lease agreement boil down to the fact that an agreement under which a legal entity acts as a lessor or a tenant must be concluded in writing.
If the parties to the lease agreement, with the exception of real estate, are citizens, mandatory written form is required only if the agreement is concluded for a period of more than one year (clause 1 of Article 609 of the Civil Code). Here we can note the difference between the requirements for the form of a lease agreement concluded between citizens and general rule, regulating the form of transactions between citizens among themselves, according to which such transactions must be concluded in writing if their amount exceeds 10,000 rubles, and only in cases provided for by law, regardless of the amount of the transaction (Article 161 of the Civil Code).
A real estate lease agreement, like any real estate transaction (Article 164 of the Civil Code), is subject to state registration.
The form of the lease agreement, which provides for the subsequent transfer of ownership of this property to the tenant, is regulated in a special way (Article 624 of the Civil Code). Such agreements must be concluded in the form provided for the purchase and sale agreement of the relevant property. In ch. 30 of the Civil Code, special requirements for the form of the contract are established only in relation to the sale of real estate (Article 550) and the sale of enterprises (Article 560). The essence of these requirements boils down to the fact that a real estate lease agreement is concluded in writing by drawing up one document signed by the parties, and if the subject of sale is an enterprise, an inventory report must be attached to the agreement, balance sheet, the conclusion of an independent auditor on the composition and value of the enterprise, as well as a list of all debts included in the enterprise, indicating the creditors, the nature, size and timing of their claims. The transfer of ownership of real estate under a contract for the sale of real estate to the buyer, as well as the contract for the sale of an enterprise, are subject to state registration.
As for the lease agreement for movable property containing a condition on the tenant's right to buy it out, such an agreement can be concluded in any form provided for the transaction, since in Chapter. 30 of the Civil Code there are no special rules governing the form of the purchase and sale agreement for movable property (clause 1 of Article 434).
In accordance with paragraph 2 of Art. 609 of the Civil Code, a lease agreement for real estate is subject to state registration, unless otherwise provided by law. In this sense, “otherwise” is established in relation to lease agreements for such real estate objects as buildings or structures, which are subject to state registration only if they are concluded for a period of at least a year, and in other cases, the conclusion of an agreement is sufficient for their entry into force in simple written form by drawing up one document signed by the parties (Article 651 of the Civil Code).
The practical significance of state registration of a real estate lease agreement is that, as a general rule, an agreement subject to state registration is considered concluded from the moment of its registration, unless otherwise provided by law (clause 3 of Article 433 of the Civil Code).
Lease agreements the object of which is real estate are subject to state registration.
More information about real estate objects
The Civil Code contains provisions that make it possible to determine both the general characteristics of real estate objects and an approximate list of real estate objects.
In accordance with Art. 130 of the Civil Code, immovable things (real estate, real estate) include land plots, subsoil plots, isolated water bodies and everything that is firmly connected to the land, i.e. objects, the movement of which without disproportionate damage to their purpose is impossible, including forests, perennial plantings, buildings, and structures. Immovable property also includes aircraft and sea vessels, inland navigation vessels, and space objects subject to state registration. The law may classify other property as immovable property.
Thus, the main characteristics of real estate are: firstly, a strong connection with the land; secondly, the impossibility of moving the relevant object without disproportionate damage to its purpose. However, these characteristics are not inherent in all real estate properties. Such real estate objects include land plots, subsoil plots and water bodies, which are named in the Civil Code and are independent main real estate objects. The specified real estate objects in the legal literature often refer to the so-called real estate by nature.
Land plots are among those real estate objects in respect of which the law may establish restrictions on participation in property turnover. This is evidenced, in particular, by the norm contained in paragraph 3 of Art. 129 of the Civil Code, according to which land and other Natural resources may be alienated or transferred from one person to another by other means to the extent that their circulation is permitted by laws on land and other natural resources.
Therefore, at present, only those land plots that already belong by right of ownership to citizens and legal entities can be recognized as objects of a lease agreement. Due to the special social significance, the circulation of land plots is legally limited in the public interest, as well as the content of the rights of any land user or natural resource user, including owners. The turnover of land plots and other natural resources should be carried out only to the extent that it is permitted by special legislation - laws on land and other natural resources.
Just like land plots, subsoil plots and isolated water bodies are recognized as independent real estate objects. They, just like land plots, are real estate due to their natural physical properties, and not because they form a single whole with the land plot. Otherwise, it would be impossible to establish ownership of subsoil, regardless of ownership of land. The peculiarity of this kind of objects is that they are subject to a presumption of state ownership: in accordance with paragraph 2 of Art. 214 of the Civil Code, natural resources that are not owned by citizens, legal entities or municipalities are state property. Thus, these objects, in principle, cannot be recognized as ownerless.
Real estate objects such as forests and perennial plantings are classified as real property due to their inextricable connection with the land and the impossibility of moving without disproportionate damage to their purpose. At the same time, it is necessary to distinguish from contracts with these objects as real estate (i.e. with the transfer of corresponding rights to a land plot) transactions in which forests and perennial plantings are sold as movable property, when, for example, “standing timber” or felled trees. In the latter case, the rules of the Civil Code on real estate transactions are not subject to application, and the corresponding agreements are concluded according to the rules for the sale of movable property<*>.
Buildings and structures are also objects of real estate due to their inextricable connection with the land and, as a result, the impossibility of moving them without disproportionate damage to their purpose.
The right of ownership of buildings, structures and other newly created real estate, subject to state registration, arises from the moment of such registration (Article 219 of the Civil Code). This provision of the Civil Code has given rise to discussions in the legal literature regarding the belonging to real estate of buildings and structures that have not been completed by construction (construction in progress).
According to some authors, the lack of mandatory state registration of unfinished construction projects raises doubts about their legal nature as real estate. This means that until state registration, newly created property cannot be considered immovable.
However, after the Federal Law “On State Registration of Rights to Real Estate and Transactions with It” came into force on July 21, 1997.<*>this issue is resolved unambiguously: according to paragraph 2 of Art. 25 of the Law, if it is necessary to complete a transaction with an unfinished construction project, the right to the specified real estate object is registered on the basis of documents confirming the right to use the land plot for the creation of real estate objects (in established cases, on the basis of design and estimate documentation), as well as documents containing a description unfinished construction project.
The official position of judicial practice on the issue of the possibility of classifying unfinished construction projects as real estate is reflected in the Resolution of the Plenum of the Supreme Arbitration Court Russian Federation dated February 25, 1998 No. 8 “On some issues in the practice of resolving disputes related to the protection of property rights and other property rights.” This Resolution includes an explanation according to which, within the meaning of Art. 130 Civil Code and Art. 25 of the Law on State Registration, unfinished construction projects that are not the subject of a valid construction contract are classified as real estate. Therefore, when resolving disputes about the ownership of unfinished construction projects, courts must be guided by the rules governing legal relations of ownership of real estate and transactions with it, taking into account the features established for the emergence of ownership of unfinished construction projects and their disposal.
The issue of classification as real estate is also controversial. non-residential premises inside buildings. The fact is that the norms of the Civil Code regulating relations related to the turnover of real estate objects did not mean non-residential premises as such. At the same time, the Code allowed for the possibility of classifying other objects not provided for by the Civil Code as real estate by federal law. The Federal Law “On State Registration of Rights to Real Estate and Transactions with It” includes non-residential premises in the list of real estate objects. Consequently, the special rules governing the contract for the sale of real estate are subject to full application to relations related to the sale of non-residential premises.
Another thing is that classifying non-residential premises inside buildings as real estate was not necessary and in practice gives rise to rather paradoxical situations when, for example, a tenant of a building for a period of less than a year, having the right to transfer individual premises (granted to him by the lease agreement) for sublease, subleases them to a third party. person for a couple of days in a meeting or conference room and such a lease agreement requires state registration, despite the fact that the lease agreement for the building itself was not registered. However, this is a question rather within the competence of the legislator, who has extended the real estate regime to transactions with non-residential premises.
The Civil Code established that a real estate lease agreement is subject to state registration (clause 2 of Article 609). Hence the clear legal consequence: a real estate lease agreement is considered concluded from the moment of its state registration (clause 3 of Article 433 of the Civil Code).
Federal Law No. 218-FZ of July 13, 2015 “On State Registration of Real Estate” contains Art. 51, which establishes that state registration of the lease of real estate is carried out through state registration of the lease agreement for this real estate.
One of the parties to the real estate lease agreement may apply for state registration of a real estate lease agreement. Since the legislator associates with the state registration of a real estate lease agreement moment of conclusion of the contract, this is a legal remedy for the parties to the agreement if the counterparty evades state registration of a real estate lease agreement.
Subjects (parties) of the lease agreement
The subjects (parties) of the lease (property lease) agreement are
- lessor (tenant);
- tenant (tenant).
Lessor of the property under a lease agreement there may be its owner or another person authorized by law or the owner to lease property (Article 608 of the Civil Code). In formulating this provision, the legislator, of course, took into account that leasing property is a form of disposal of this property. Hence, the lessor is the one who has the right to dispose of the relevant property. First of all, this right is vested in the owner, since the subjective right of ownership includes, as one of the main elements, the power to dispose of property (Article 209 of the Civil Code).
More about landlords
The issue of other persons acting as a lessor is somewhat more difficult to resolve, since they must be endowed with the appropriate powers by law or by the owner himself. By virtue of the law, such rights are possessed, for example, by subjects of economic management law: state and municipal unitary enterprises. True, they have the right to rent out real estate only with the consent of the owner represented by his authorized body (Article 295 of the Civil Code).
As for the subjects of operational management, a state-owned enterprise can act as a lessor of state property (both movable and immovable) only with the consent of the owner (Article 297 of the Civil Code), and the institution under no circumstances has the right to lease the property assigned to it, as well as property acquired by him from funds allocated to the institution according to the estimate. At the same time, an institution can act as a lessor of property acquired by it with income received as a result of entrepreneurial activity permitted by the institution in accordance with its constituent documents (Article 298 of the Civil Code).
Extremely important from a practical point of view is the question of which organs government controlled assigned the functions of managing and disposing of state property, including by leasing it.
State property related to the ownership of the constituent entities of the Russian Federation, as well as municipal property, must be leased in the manner determined by the legal act of the relevant constituent entity of the Russian Federation, and in the absence of such a legal act defining the body authorized to lease the specified property, arbitration and judicial practice recognizes the appropriate property management committees as proper landlords.
As is known, the Russian Federation, the constituent entities of the Russian Federation, as well as municipalities are recognized as independent subjects of property rights, although previously the objects covered by the property rights of these subjects constituted a single fund of state property. In this regard, disputes between these subjects of property rights regarding the delimitation of the latter’s powers to dispose of property, including by transferring it for rent, continue to this day. Such disputes are still resolved today by arbitration courts on the basis of the Resolution of the Supreme Council of the Russian Federation "On the division of state property in the Russian Federation into federal property, state property of republics within the Russian Federation, territories, regions, autonomous region, autonomous okrugs, cities of Moscow and St. Petersburg and municipal property", as well as other legal acts regulating the procedure for classifying various objects as federal property, property of constituent entities of the Russian Federation and municipal property.
At the same time, it should be taken into account that all objects related to state or municipal property are divided into two categories: firstly, this is property that the state or municipal entity owns directly, i.e. property that is not assigned to other legal entities by proprietary right. Such property constitutes the treasury of the state (municipal entity). In relation to this property, the state (municipal entity), represented by authorized bodies, retains its ownership rights in full and can dispose of it at its own discretion, including by transferring the specified property for rent.
The second category includes property assigned by the state or municipality to legal entities on the right of economic management, operational management or other property rights. In relation to this property, the state (municipal entity), as well as the bodies authorized by them, retain only those powers of the owner that are directly specified in the law. For example, the owner of property under the economic control of a state (municipal) enterprise is not endowed by law with the right to dispose of property belonging to this enterprise (Article 295 of the Civil Code). Therefore, none of the state (municipal) bodies has the right to act as a lessor of property assigned to the balance sheet of a state (municipal) enterprise. In this sense, the provision on vesting the State Property Committee of the Russian Federation (now the Ministry of State Property of the Russian Federation) and other property management committees with the exclusive right to lease real estate of state-owned enterprises and their structural divisions, contained in Decree of the President of the Russian Federation of October 14, 1992 N 1230 "On regulation of rental relations and privatization of leased property of state and municipal enterprises" contradicts the Civil Code and is not subject to application.
Concerning tenant, then any capable citizen or organization that is a legal entity can act in this capacity. In any case, the Civil Code does not contain any special rules limiting the rights of subjects of property turnover to receive property for rent.
Rental objects
The object of lease can be any property (things) that does not lose its natural properties during use: land plots, natural objects, enterprises and other property complexes, buildings, structures, equipment, vehicles, etc.
The law may establish types of property, the rental of which is not permitted or limited (Clause 1, Article 607 of the Civil Code) (today there is no such law).
Some restrictions for leasing natural objects are established directly by federal laws. So, in accordance with Art. 11 of the Federal Law "On Subsoil" subsoil plots may be provided for use on the basis of licenses issued by authorized state bodies. Similar requirements are established by the Water Code of the Russian Federation (Articles 46 - 53) regarding the provision of water bodies for use. Forest fund areas can also be transferred for lease (use) only on the basis of licenses (Article 34 of the Forest Code of the Russian Federation).
The object of a lease agreement cannot be a property right, which, by definition, cannot be transferred into someone else's possession. The possibility of transferring for rent and Money, since the whole point of using them is to use them.
In the daily practice of sports clubs, contracts are often concluded for the rental of athletes in the field of team sports. Such agreements must be recognized as void transactions, since individuals (players) are subjects of civil rights and under no circumstances can be recognized as objects of civil transactions.
The terms of the lease agreement on the property must comply with the requirements of the Civil Code (clause 3 of Article 607), namely: the lease agreement must contain data that makes it possible to definitely establish the property to be transferred to the tenant as the leased object. In the absence of this data in the contract, the condition regarding the object to be leased is considered not agreed upon by the parties, and the corresponding contract is not considered concluded.
Contents of the lease agreement (rights and obligations of the parties under the lease agreement)
However, in any lease agreement there are groups of conditions that determine the responsibilities of the lessor and the lessee, respectively. For example, the conditions stipulating the obligations of the lessor usually include the following conditions: about the leased property, about the procedure and terms for providing it to the tenant.
The terms of the agreement regulating the procedure for using the leased property, the amount of rental payments, the procedure and timing for their payment, usually determine the obligations of the tenant.
Landlord's responsibilities
The main obligation of the lessor under a lease agreement is to provide the tenant with property in a condition that complies with the terms of the lease agreement and the purpose of this property, along with all its accessories and related documents (Article 611 of the Civil Code). The leased property must be transferred to the tenant within the period stipulated by the contract, and in its absence - within a reasonable period. If the lessor fails to fulfill this obligation, the tenant receives the right to reclaim the leased property in accordance with Art. 398 of the Civil Code and demand from the lessor to compensate for losses caused as a result of untimely transfer of leased property. If, as a result of a delay in the transfer of property, the tenant has lost interest in fulfilling the lease agreement, he may act differently: file a demand for termination of the agreement and for compensation by the lessor for losses caused by failure to fulfill contractual obligations.
As already noted, the property transferred to the tenant must comply with the terms of the agreement and the purpose of this property. Therefore, the lessor is not responsible for defects in the leased property that were agreed upon by him when concluding the lease agreement or were known to the tenant in advance. The lessor is also not responsible for those shortcomings that the tenant should have discovered during an inspection of the property or checking its serviceability when concluding an agreement or transferring the property for rent.
In all other cases, responsibility for defects in the leased property rests with the lessor. We are talking about such shortcomings that prevent the use of the leased property for its intended purpose, either completely or partially. In such situations, the tenant can use the methods provided to him by the Civil Code (Article 612) to protect the violated right, namely:
- demand from the lessor either the elimination of defects in the property free of charge, or a proportionate reduction in the rent, or reimbursement of expenses incurred by him to eliminate the defects of the leased property;
- directly withhold the amount of expenses incurred by him to eliminate such deficiencies from the rental payments due to the lessor, subject to prior notification of the lessor;
- demand early termination of the contract.
The lessor is given the only opportunity to avoid these negative consequences. To do this, he, having received the appropriate notice from the tenant, must immediately replace the property provided to the tenant with other similar property in proper condition or eliminate the defects of the property leased to him free of charge.
The Civil Code does not exclude the possibility of leasing property encumbered by the rights of third parties (such as easements, liens, etc.), which remain in force during the period of validity of the lease agreement. However, given that the exercise by third parties of their rights to the leased property may entail negative consequences for the tenant (for example, foreclosure on the leased property, which is also the subject of a pledge), the Civil Code obliges the lessor to warn the tenant about all rights of third parties to the leased property for rent property. Otherwise, the tenant may demand from the lessor a reduction in the amount of rent or termination of the contract and compensation for losses (Article 613).
In addition, under certain conditions, namely: when there is a real danger for the tenant to lose his lease right to the debtor's property due to a third party - the lessor's creditor - foreclosure on the leased property - the tenant can, at his own expense, satisfy the corresponding claim of the creditor without the consent of the debtor - landlord. In this case, the rights of the creditor under the obligation in which the lessor acts as a debtor will pass to the lessee by way of subrogation (Article 313 of the Civil Code).
The landlord's responsibilities do not end with the transfer of the leased property to the tenant. Until the end of the lease agreement, this obligation remains bilateral in nature.
By distributing responsibilities for the maintenance of the leased property between the parties to the lease agreement and taking into account the temporary nature of the tenant's possession and use of the leased property, the legislator assigned the responsibility for carrying out major repairs of the leased property to the lessor; otherwise may be provided by law or contract. Major repairs must be carried out by the lessor at his own expense within the period established by the contract, and if such a period is not specified in the contract or there is an urgent need, the lessor must carry out major repairs within a reasonable time. If the lessor fails to fulfill this obligation, major repairs may be carried out by the lessee, who has the right to demand reimbursement of the costs incurred from the lessor or to offset them against the rent due.
In addition to the obligation to carry out major repairs, the lessor must refrain from any actions that create obstacles for the tenant in using the leased property in accordance with its purpose provided for in the contract. Despite the absence of a direct indication in this regard in the law, the mentioned obligation of the lessor follows from the legal status of the tenant as the title owner who has the means of proprietary (property) protection, including against the owner of the property - the lessor.
Tenant's responsibilities
You can select three main responsibilities of a tenant arising from the lease agreement:
- use the leased property in accordance with the terms of the lease agreement, and if such conditions are not defined in the agreement, then in accordance with the purpose of the property (clause 1 of Article 615 of the Civil Code);
- timely pay rent for the use of leased property (Article 614 of the Civil Code);
- return of the leased property upon expiration of its lease term or upon termination of the lease agreement for other reasons (which must be specified in the contract, see Determination of the Supreme Court of the Russian Federation dated August 21, 2015 No. 310-ES15-4004, A08-7981/2013).
More details
Firstly, the tenant is obliged to use the leased property in accordance with the terms of the lease agreement, and if such conditions are not defined in the agreement, then in accordance with the purpose of the property (clause 1 of Article 615 of the Civil Code). It seems that the legislator in this norm, establishing the corresponding obligation of the tenant, focuses not on the word “use”, but on the fact that such use must comply with the agreement or the purpose of the property. This conclusion can be confirmed by the fact that negative consequences are provided not for the case when the tenant does not actually use the leased property, but as a consequence of using the specified property not in accordance with the terms of the contract or the purpose of the property, which may entail termination of the contract and compensation for losses ( clause 3 of article 615 of the Civil Code).
In the process of using the property, unless otherwise provided by law or contract, the tenant is obliged to maintain it in good condition, carry out routine repairs at his own expense and bear the burden of expenses for maintaining the leased property (clause 2 of Article 616 of the Civil Code).
As for the actual use of the leased property, it cannot be considered as the obligation of the tenant, since this is precisely the interest of the latter. In addition to satisfying the needs of the tenant, the use of property based on a lease agreement gives the tenant the opportunity to extract its beneficial properties and appropriate the fruits, products and income received as a result of the use of the leased property. As an obligation of the tenant associated with the use of the leased property, it is necessary to recognize the need to comply with the restrictions established by law or provided for by the contract.
In particular, some powers arising from the right to use the leased property can be exercised by the tenant only with the consent of the lessor. We are talking about special powers, the use of which may result in the disposal of leased property. These include the following rights: to sublease leased property (sublease); transfer your rights and obligations under the lease agreement to another person (release); provide leased property for free use; pledge rental rights; make rental rights as a contribution to the authorized capital of business companies, the share capital of business partnerships or a share contribution to a production cooperative. Obviously, the consent of the lessor in these cases is required for the reason that the exercise by the lessee of these rights may lead to the loss of the lessor's right of ownership of the property leased to him.
As noted, a sublease agreement can be concluded by a tenant with a third party (subtenant) only with the consent of the lessor. Naturally, the term of the sublease agreement cannot exceed the term of the main lease agreement. The rules on lease agreements apply to sublease relationships.
In real life, sublease relationships are quite widespread. Therefore, the relevant provisions of the Civil Code require some additional comment.
Previously, under existing legislation, the transfer by a tenant of leased property to sublease was also allowed with the consent of the main lessor. However, other issues related to the regulation of sublease, in particular the fate of the sublease agreement in the event of termination of obligations under the main lease agreement, remained outside the scope of the legislator. At the same time, arbitration and judicial practice was based on the need to ensure the protection of the rights of the subtenant even in the event that the activities of the tenant were terminated, which served as the reason for the termination of contractual relations related to the lease. In such situations, arbitration courts believed that the sublease agreement remained in force in a modified form: the place of the tenant who subleased the property was occupied by the lessor under the main lease agreement.
At the same time, the introduction of part one of the Civil Code deprived such a practice of the right to exist. The fact is that, according to paragraph 3 of Art. 308 of the Civil Code, an obligation cannot create obligations for persons not participating in it as parties, i.e. for third parties (in our case, for the lessor). The second part of the Civil Code (Article 618) includes some provisions that provide additional protection of the rights and legitimate interests of the subtenant. Early termination of the lease agreement, of course, entails the termination of the sublease agreement concluded in accordance with it. However, the subtenant in this case receives the right to demand from the lessor in the main lease agreement to conclude a lease agreement with him for the property that was in his use in accordance with the sublease agreement, within the remaining term of the sublease and on terms corresponding to the terms of the terminated lease agreement. This can be implemented by the subtenant up to filing a claim in court (arbitration court) to force the lessor to enter into a lease agreement.
The second main responsibility of the tenant consists of timely payment of rent for the use of leased property (Article 614 of the Civil Code). Moreover, from the definition of a lease agreement (providing the tenant with property for temporary possession and use for a fee), it follows that the condition of rent refers to the essential terms of any lease agreement.
However, a lease agreement in which there is no indication of the amount of rent to be collected from the tenant, in contrast to the general rule regarding the essential terms of the agreement (Article 432 of the Civil Code), cannot be recognized as not concluded. This became possible thanks to a special rule established by the Civil Code for the case when the lease agreement does not define the procedure, conditions and terms for paying rent. According to this rule, in such situations it will be considered that the parties have established in the agreement the procedure, conditions and terms for payment of rent, usually applied when leasing similar property under comparable circumstances. It is easy to notice that this rule fully corresponds to the provisions that make it possible to determine the price of any paid civil contract in the absence of a corresponding condition in the text of the contract (Article 424 of the Civil Code).
The Civil Code provides for a number of options for establishing the rent in the agreement. At the same time, the scope of expression of the will of the parties is significantly expanded.
The rent can be established in the contract both in relation to the leased property as a whole, and in relation to each of its main parts. The following main forms of rent are provided: certain payments in a fixed amount, made periodically or simultaneously; the established share of products, fruits, and income received as a result of the use of leased property; certain services provided by the tenant to the landlord; transfer by the lessee to the lessor of the property or lease of the thing stipulated by the contract; imposing on the lessee the costs stipulated by the contract for improving the leased property.
It should be emphasized that the above list of possible forms of rent is not exhaustive or imperative. The parties have the right to establish rent in the contract either in the form of a combination of several of these forms, or in a completely different form not provided for by the Civil Code.
Changes in rent may be made by agreement of the parties within the time limits provided for in the contract, but not more than once a year. At the request of one of the parties, namely the lessee, the amount of rent may be revised downwards if, due to circumstances for which he is not responsible, during the period of the lease agreement the conditions for use of the leased property or the condition of this property deteriorate significantly.
Practice shows that when disputes arise related to changes in rent, the decisive factor is how the parties settled the procedure for changing rent when concluding a lease agreement.
One more tenant's primary responsibility is the return of the leased property upon expiration of its lease term or upon termination of the lease agreement for other reasons. By virtue of Art. 622 of the Civil Code, in the event of termination of contractual relations related to the rental of property, regardless of the reasons for such termination, the tenant is obliged to return to the lessor the property leased to him by the latter in the condition in which he received it, taking into account normal wear and tear or in the condition provided for agreement. If this obligation is not fulfilled by the tenant, he must pay rent to the landlord for the entire period of delay in returning the property and, in addition, compensate him for losses in the part not covered by the amount of rental payments. If the specified obligation to return the property is not fulfilled, the lessor, of course, has the right to demand the return of his property forcibly.
In arbitration and judicial practice, a problem has arisen related to the qualification of such claims of landlords, which in statements of claim are usually referred to as demands for the eviction of a former tenant or for the latter to vacate premises occupied by him without legal grounds. There were often cases when such demands were qualified by the courts as negatory claims or as claims to restore the situation that existed before the violation of subjective rights; but most often, landlords’ demands to evict a tenant or to vacate the premises they occupied were considered in arbitration and judicial practice as vindication claims (to reclaim property from someone else’s illegal possession). Using one of the cases as an example, the Supreme Arbitration Court of the Russian Federation recognized this practice as erroneous and gave an appropriate explanation.
We are talking about a typical situation when the owner of a non-residential premises applied to the arbitration court with a claim 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 for use to the plaintiff, erroneously motivated its decision by reference to Art. 301 Civil Code. In relation to this case, the Presidium of the Supreme Arbitration Court of the Russian Federation indicated that Art. 301 of the Civil Code (vindication claim) is applied in the case when a person who considers himself the owner of the disputed property reclaims this property from someone else’s illegal possession, i.e. from the possession of a person possessing property without proper legal basis. In this case, the defendant occupied the premises on the basis of a lease agreement (until its termination), therefore his obligation to return the property in a vacated form to the lessor must be determined in accordance with the conditions provided for by the legislation on lease (See paragraph 17 of the Review of practice in resolving disputes related to protection of property rights and other real rights (information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 28, 1997 No. 13).
From this clarification of the Supreme Arbitration Court of the Russian Federation it clearly follows that the landlord’s requirement to evict the tenant from the occupied premises (or to return the latter’s movable property) does not apply to proprietary legal methods of protection. The question of how to qualify such requirements is left open. It seems that this question can be answered as follows. The tenant’s obligation to return the property upon termination of the lease agreement is included in the concept of “content of the legal relationship” arising from of this agreement(obligation on the lessee's side). In this regard, the owner-lessor's demand for the return of property (vacation of the premises, eviction of the tenant), by its legal nature, is a requirement for an award to fulfill an obligation in kind, which has nothing to do with proprietary methods of protection.
The fate of improvements to the leased property made by the tenant is determined by the Civil Code depending on their nature (Article 623). All improvements separable from the leased property are the property of the lessee. Inseparable improvements to the property belong to the lessor. True, the cost of such improvements made by the tenant at his own expense with the consent of the landlord is subject to reimbursement by the landlord. Improvements to the leased property made by the lessee at the expense of depreciation deductions from this property are in all cases the property of the lessor.
Concept, types and general characteristics lease agreement
According to the lease agreement one party (the lessor) undertakes to provide the other party (the lessee) with property for a fee for temporary possession and use or for temporary use (see Article 606 of the Civil Code of the Russian Federation).
The lease agreement is consensual, compensated, mutual.
Legislation: Art. 606-625 Civil Code of the Russian Federation " General provisions about rent."
Use means taking it out of a thing. useful properties without changing the substance of the thing, incl. acquisition of fruits and income. The right of use may also include the right to purchase this property (see Article 614 of the Civil Code of the Russian Federation). The tenant's right of use has the property of following the thing (see Article 617 of the Civil Code of the Russian Federation). The transfer of ownership of an item is not grounds for termination of the lease agreement.
When transferring property for use, the right of ownership to it remains with the transferring party. A person who receives property on lease acquires the rights to own and use it or only the right to use. In the first case, the property passes into the economic sphere of the tenant, in the second, it remains in the economic sphere of the lessor.
Because the we're talking about on temporary possession and (or) use, A lease agreement is always limited in duration - definite or indefinite.
Elements of the contract
Parties are any subjects of civil law.
Landlord- the owner of a thing is any person authorized by law or the owner to lease property.
Item- any bodily non-consumable thing, since it does not lose its properties during use, with the exception of things the rental of which is not allowed or limited by law.
Non-consumability- this is the quality of things that allows them not to lose their natural properties during use. The law does not specify how many times an item must be used before it can be considered non-consumable. Therefore, any thing that can be used more than once should be considered non-consumable.
Consumable items, i.e. those that are destroyed in one act of using them (food, fuel, etc.) cannot be rented out. The list of rental objects includes both real estate and movable property (Article 130 of the Civil Code). Man-made real estate includes buildings and structures, enterprises and some vehicles (see paragraph 2, paragraph 1, article 130 of the Civil Code). All other rental objects are classified as movable property. The specifics of leasing land plots are established by the Land Code of the Russian Federation.
The subject of the lease agreement is its essential condition
Article 607. Lease objects (extraction)
3. The lease agreement must contain data that makes it possible to definitely establish the property to be transferred to the lessee as the leased object. In the absence of this data in the contract, the condition regarding the object to be leased is considered not agreed upon by the parties, and the corresponding contract is not considered concluded.
The subject of a lease agreement is always an individually defined non-consumable thing.
Lease agreement form:
Lease agreement for a period of more than a year or with the participation of legal entities - a simple written form;
A real estate lease agreement is subject to state registration, unless otherwise provided by law (lease agreement for buildings, structures - for a period of at least a year - clause 2 of Article 65 i of the Civil Code of the Russian Federation);
A lease agreement providing for the subsequent transfer of ownership of this property to the lessee - in the form established for a purchase and sale agreement.
In derogation from the general rule enshrined in Art. 161 of the Civil Code, a lease agreement between citizens for a period of more than a year, regardless of the amount, must be concluded in simple written form.
a lease agreement for an amount exceeding 10 minimum wages must be concluded in simple written form, regardless of its term. In this case, the amount of the lease agreement should be considered the cost of the leased property or the amount of rent for the entire lease term, depending on whichever is greater.
For lease agreements involving legal entities, simple written form is required in all cases.
Clause 2 of Art. 609 establishes the mandatory state registration of a real estate lease agreement as a real estate transaction (clause 1 of Article 164 of the Civil Code). Registration of transactions with real estate is carried out in accordance with Art. 131 of the Civil Code and the Law on State Registration. According to Art. 1 of the said Law, a lease agreement is considered as a restriction (encumbrance) of the right to the relevant real estate. a real estate lease agreement is considered concluded, i.e., it gives rise to the rights and obligations of the parties from the moment of its state registration.
Contract price- is not an essential condition. The forms of rent are established by Art. 614 Civil Code of the Russian Federation.
Article 614. Rent (extraction)
2. The rent is established for all leased property as a whole or separately for each of its components 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) provision of certain services by the tenant;
4) transfer by the lessee to the lessor of the thing stipulated by the contract for ownership or lease;
5) assignment to the tenant of the costs stipulated by the contract for improving the leased property.
The parties may provide in the lease agreement for a combination of these forms of rent or other forms of rent payment.
3. Unless otherwise provided by the agreement, the amount of rent may be changed by agreement of the parties within the time limits provided for by the agreement, but not more than once a year. The law may provide for other minimum terms for reviewing 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 tenant has 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 in 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 for payment of rent, the lessor has the right to demand from him early payment of rent within the period established by the lessor. In this case, the lessor has no right to demand early payment of rent for more than two consecutive terms.
Rent- this is a payment specifically for the ownership and (or) use of the leased property, and not for any additional services that the lessor may provide to the tenant. The amount, procedure, conditions and terms of payment of rent are established by the agreement.
If there is a delay in paying rent, the tenant is liable to the landlord in the form of compensation for losses, payment of interest under Article 395 of the Civil Code of the Russian Federation, as well as payment of a penalty if it is provided for in the lease agreement. The relationship between these measures of responsibility is established by the general rules provided for by the Civil Code.
The rent may be set for the entire leased property or separately for each of its component parts, depending on what provisions in this regard are contained in the agreement.
In the event that the rent is not agreed upon in relation to a unit of area or other indicator characterizing the size of a building (structure), a rule has been established that is used to determine absolute value rent. To do this, you need to multiply the rental rate by the number of units of area contained in the building (structure) actually transferred to the tenant.
Duration of the lease agreement
A certain period. The law may provide for maximum (limit) periods for certain types of leases. A lease agreement concluded for a period exceeding the deadline established by law is considered concluded for a period equal to the maximum (Clause 3 of Article 610 of the Civil Code of the Russian Federation). If the tenant continues to use the property after the expiration of the agreement in the absence of objections from the lessor, the agreement is considered renewed on the same conditions for an indefinite period (Article 610 of the Civil Code of the Russian Federation).
Indefinite term. In this case, either party has the right to withdraw from the agreement by notifying the other party 1 month in advance, and under a real estate lease agreement - 3 months, unless a different period is established by the agreement (clause 2 of Article 610 of the Civil Code of the Russian Federation).
Lessor's responsibilities:
Provide the property in a condition that complies with the terms of the lease agreement and the purpose of the property within the prescribed period (Article 611 of the Civil Code of the Russian Federation);
Warn the tenant about all rights of third parties to the leased property (Article 61Z of the Civil Code of the Russian Federation);
Carry out major repairs at your own expense (unless otherwise provided by the contract) - Art. 616 Civil Code of the Russian Federation;
Reimburse the tenant for the cost of inseparable improvements made with the consent of the landlord and at the expense of the tenant, unless otherwise provided by the lease agreement (Article 624 of the Civil Code of the Russian Federation).
Tenant's responsibilities:
Use the leased property in accordance with the terms of the lease agreement, and if such conditions are not specified in the agreement, in accordance with the purpose of the property (Article 615 of the Civil Code of the Russian Federation);
Pay fees for the use of property on time.
Peculiarities: The tenant may be given a pre-emptive right to enter into a lease for a new term.
The lessor is responsible for any defects in the leased property, regardless of whether they prevent the use of the property in whole or only in part. Responsibility does not apply only for those shortcomings that are named in paragraph 2 of Art. 612 Civil Code.
Sublease
The most common case of disposal of leased property is sublease. In sublease, the tenant becomes the lessor in relation to the subtenant, while at the same time retaining a certain amount of rental rights for himself. It is no coincidence that the rules on lease agreements apply to sublease agreements, unless otherwise provided by law or other legal acts.
A sublease agreement cannot be concluded for a period exceeding the term of the lease agreement. The sublessee cannot have more rights under the lease agreement.
As a general rule, the sublease agreement follows the fate of the lease agreement (clause 2 of Article 615 of the Civil Code of the Russian Federation). In particular, early termination of the lease agreement entails the termination of the sublease agreement concluded in accordance with it. A subtenant cannot acquire rights under a sublease if the tenant does not have rights under the lease.
If the tenant does not use the property in accordance with the terms of the lease agreement or the purpose of the property, the lessor has the right to demand early termination of the contract and compensation for losses (clause 3 of Article 615).
Article 621 of the Civil Code of the Russian Federation (extract)
1. Unless otherwise provided by law or the lease agreement, a tenant who has properly fulfilled his duties, upon expiration of the agreement, has, other things being equal, a preferential right over other persons to conclude a lease agreement for a new term. The tenant is obliged to notify the lessor in writing of his 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 refuses to enter into an agreement with the lessee for a new term, but within a year from the date of expiration of the agreement with him has concluded a lease agreement with another person, the lessee has the right, at his own discretion, to demand in court the transfer of rights and obligations under the concluded agreement and compensation for losses, caused by the refusal to renew the lease agreement with him, or only compensation for such losses.
Improvement of leased property
Under improvements it is necessary to understand such changes in the leased property during the period of validity of the contract that increase its consumer properties and value.
There are improvements that are separable and not separable from the leased property, as well as those made with or without the consent of the lessor.
Separable improvements are recognized that can be separated from the thing without harm to it. Accordingly, inseparable improvements, when separated from a thing, worsen its condition, as a result of which it acquires defects.
Separable improvements to the leased property made by the tenant are recognized as his property, which he can dispose of at his own discretion. At the end of the lease, the severable improvements must be separated from the leased property.
Inseparable improvements are inextricably linked with the leased property, and therefore, as part of it, become the property of the lessor. However tenant, who made improvements at his own expense and with the consent of the lessor, has the right, after termination of the contract, to be reimbursed for the cost of these improvements.
Redemption of leased property
The law or the lease agreement may provide that the leased property becomes the property of the lessee upon expiration of the lease period or before its expiration, subject to the payment by the lessee of the entire purchase price stipulated by the agreement.
A lease agreement with the right to purchase is a mixed one, since it combines the features of purchase and sale and lease. If the condition for the purchase of the leased property is not provided for in the lease agreement, it may be established by an additional agreement of the parties, which has the right to agree to offset previously paid rent into the purchase price.
Types of lease agreement:
Rental agreement;
Vehicle rental agreement;
Lease agreement for buildings and structures;
Enterprise lease agreement;
Financial lease agreement (leasing).
LEASE AGREEMENT OF REAL ESTATEPlace of conclusion of the contract ____________
Date of conclusion of the contract _____________
Hereinafter referred to as the “Lessor”, represented by __________, acting on the basis of ____________, on the one hand, and ______________, hereinafter referred to as the “Tenant”, represented by ____________, acting on the basis of ________, on the other hand, collectively referred to as the “Parties”, and individually “Parties” have entered into this agreement (hereinafter referred to as the Agreement) as follows.
1. THE SUBJECT OF THE AGREEMENT
1.1. The Lessor undertakes to transfer to the Tenant for temporary possession and use (rent) non-residential premises (hereinafter referred to as the premises) for a fee, and the Tenant undertakes to accept the premises and pay rent to the Lessor.
1.2. The object under the Agreement is a premises with an area of ___ square meters. m , which is located on floor N ___, in the building at the address: _________ (hereinafter referred to as the building).
Cadastral number of the premises: ______ according to an extract from the Unified state register real estate (USRN) (Appendix No. 1 to the Agreement).
The boundaries of the premises and its location on the floor are shown on a copy of the technical plan (Appendix No. 2 to the Agreement).
1.3. Purpose of use of the premises: _________.
1.4. The premises are owned by the Lessor, which is confirmed by an extract from the Unified State Register of Real Estate (Appendix No. 1 to the Agreement).
1.5. The Lessor guarantees that at the time of conclusion of the Agreement the premises are not in dispute or under arrest, are not subject to pledge and are not encumbered by other rights of third parties.
2. TERM OF THE CONTRACT
2.1. The contract is concluded (select the one you need)
— for a period up to ___ inclusive.
- For undefined period.
2.2. The agreement comes into force on the date of its (select the one you need)
— state registration (if the contract is concluded for a period of at least a year). Expenses associated with state registration of the Agreement are paid by ______.
— signing by the Parties (if the contract is concluded for a period of less than a year or for an indefinite period).
(if, according to clause 2.1, the Agreement is concluded for a specific period/otherwise, you should choose a different version of clause 2.3)
2.3. Upon expiration of the Agreement, the Tenant, who has properly fulfilled his duties, has a pre-emptive right to conclude an agreement for a new term. The Tenant is obliged to notify the Lessor in writing of his desire to conclude an agreement for a new term no later than ___ business days before the expiration of the Agreement.
(if, according to clause 2.1, the Agreement is concluded for an indefinite period / otherwise, you should choose the above version of clause 2.3)
2.3. Each Party has the right to terminate the Agreement at any time by notifying the other Party ___ working days (months) in advance.
3. RIGHTS AND OBLIGATIONS OF THE PARTIES
3.1. The lessor is obliged:
3.1.1. Prepare the premises for transfer, including drawing up a Certificate of Acceptance and Transfer of Real Estate (non-residential premises) in the form agreed upon in Appendix No. 3.
3.1.2. Transfer to the Tenant the premises in a condition corresponding to its purpose and the terms of the Agreement, within a period of _____ under the Acceptance and Transfer Certificate of Real Estate (non-residential premises), which is an integral part of the Agreement.
(Clause 3.1.3 is included in the Agreement if the responsibility for insurance is assigned to the Lessor)
3.1.3. Insure the premises against risk at your own expense (select the one you need)
- loss (death).
- damage.
The beneficiary under the premises insurance contract is the Lessor.
(Clause 3.1.4 is included in the Agreement if the obligations to perform the relevant type of repair are assigned to the Lessor)
3.1.4. Produce at your own expense (select the one you need)
— major repairs of the premises at least _____ in _____, as well as its current repairs at least _____ in _____.
3.2. Tenant (select the one you need)
- has the right without the consent of the Lessor
- not entitled
sublease the premises, provide it for free use, transfer rental rights as collateral and contribute them to pay for a share in authorized capital business partnerships and societies or as a contribution to joint activities.
3.3. The tenant is obliged:
3.3.1. Before signing the Acceptance and Transfer Certificate of real estate (non-residential premises), inspect the premises and check its condition.
3.3.2. Pay rent in the amount, terms and manner provided for in the Agreement.
(Clause 3.3.3 is included in the Agreement if the responsibility for insurance is assigned to the Lessee)
3.3.3. Insure the premises against risk at your own expense (select the one you need)
- loss (death)
- damage
for the entire period during which the specified risks are borne by the Lessee. The Tenant bears this risk from the moment of receipt of the premises from the Lessor under the Certificate of Acceptance and Transfer of Real Estate (non-residential premises) and until the moment the premises are returned to the Lessor under the Certificate of Return of Real Estate (non-residential premises) (Appendix No. 5).
The beneficiary under the premises insurance contract is (select the one you need)
- Landlord.
- Tenant.
(Clause 3.3.4 is included in the Agreement if the responsibilities for performing the relevant type of repair are assigned to the Lessee)
3.3.4. Carry out at your own expense (select the one you need)
— current repairs of the premises at least _____ in _____.
- current repairs of the premises at least _____ in _____, as well as its major repairs at least _____ in _____.
— major repairs of the premises at least _____ in _____.
3.4. Income received by the Tenant as a result of the use of the premises in accordance with the Agreement is his property.
4. RENTED PROPERTY IMPROVEMENTS
4.1. Separable improvements to the premises made by the Tenant are the property of (select the one you need)
- Tenant.
- Landlord.
4.2. The Tenant has the right, with the consent of the Landlord, to make inseparable improvements to the premises. After termination of the Agreement (select the one you need)
— The Landlord is obliged to reimburse the Tenant for the cost of inseparable improvements.
— the cost of inseparable improvements is not reimbursed to the Tenant.
5. SIZE, TERMS AND PROCEDURE FOR PAYMENT OF RENT
5.1. Rent is set (select the one you need)
— in the amount of ___ rubles, including VAT ___ rubles, for __________ and includes the cost of consumed by the Tenant utilities.
— in the form of a fixed payment in the amount of ___ rubles, including VAT ___ rubles, for ____ (indicate the billing period: month, quarter, etc.) and a variable payment in an amount equal to the cost of utilities (cold and hot water supply, sewerage, heating, electricity) consumed by the Tenant for this period. The amount of the variable payment is determined on the basis of invoices of resource supply organizations in proportion to the area occupied by the Tenant and is paid on the basis of an invoice issued by the Lessor with copies of invoices of resource supply organizations attached.
— in the amount of ___ rubles, including VAT ___ rubles, for _____ (indicate the billing period: month, quarter, etc.). In addition to the rent, the Tenant is obliged to compensate the Lessor for the cost of utilities (cold and hot water supply, sewerage, heating, electricity) consumed by the Tenant during this period. The corresponding amount is determined on the basis of invoices of resource supply organizations in proportion to the area occupied by the Tenant and is paid on the basis of an invoice issued by the Lessor with copies of invoices of resource supply organizations attached.
5.2. Rent is due (select the one you need)
- no later than ___ working days after the next ______ (indicate the billing period: month, quarter, etc.).
- no later than ___ working days before the start of the next __________ (indicate the billing period: month, quarter, etc.).
— regarding the fixed payment — no later than ___ working days before the start of the next __________ (indicate the billing period: month, quarter, etc.), in terms of variable payment - no later than ___ working days after the next __________ (indicate the billing period: month, quarter, etc.).
- in accordance with the Payment Schedule, which is an integral part of the Agreement (Appendix No. 4).
(clause 5.3 is included in the Agreement if clause 5.2 provides for advance payments towards rent/otherwise, the subsequent numbering of clauses should be changed)
5.3. The parties agreed that advance payments under the Agreement are counted towards the rent in the following order.
(if 100% advance payment (or partial prepayment) is paid for each billing period separately, you should select this version of clause 5.3.1)
5.3.1. Upon receipt of 100% advance payment (or partial advance payment) for each billing period separately, the advance payment is counted in full towards the rental period for which it is intended.
(if 100% advance payment (or partial prepayment) is paid for the entire rental period in several payments, you should select this version of clause 5.3.1)
5.3.1. Upon receipt of 100% advance payment (or partial prepayment) for the entire rental period in several payments for each __________ (indicate the billing period: month, quarter, etc.) ____ percentage of the amount of advance payments received from the Tenant is counted.
(if 100% advance payment (or partial prepayment) is paid for the entire rental period in one payment, you should select the below version of clause 5.3.1)
5.3.1. Upon receipt of 100% advance payment (or partial prepayment) for the entire rental period in one payment for each __________ (indicate the billing period: month, quarter, etc.) _____ percentage of the amount of the advance payment received from the Tenant is counted.
5.4. Interest on the payment amount under the Agreement is not accrued or paid.
5.5. The date of payment of rent and other payments under the Agreement is the date of crediting funds to the Lessor’s bank account.
6. SUBSEQUENT PURCHASE OF THE LEASED PROPERTY
6.1. Tenant (select the one you need)
- has the right to purchase the premises upon or before the expiration of the lease term.
- has no right to subsequent repurchase of the premises.
(clauses 6.2 - 6.4 are included in the Agreement if, within the framework of clause 6.1 of the Agreement, the Parties provided for the Tenant’s right to purchase the premises)
6.2. When purchasing the premises upon expiration of the lease term, the purchase price is ___ rubles, including VAT ___ rubles. The purchase price is paid no later than ___ business days from the expiration of the lease term.
6.3. When purchasing the premises before the expiration of the lease term, the redemption price specified in clause 6.2 of the Agreement increases by the amount of rental payments (in terms of the fixed payment ( if in clause 5.1 a payment procedure is selected that provides for a variable payment)) for the period from the moment of purchase until the end of the established lease period.
6.4. After paying the redemption price in accordance with clause 6.2 or clause 6.3 of the Agreement, as well as subject to payment of rent in accordance with the provisions of clause 6.2 or clause 6.3 of the Agreement for the entire period of use, the premises become the property of the Tenant.
7. RETURN OF PROPERTY TO THE LESSOR
7.1. The Tenant is obliged to return the premises to the Landlord in the condition in which he received it, taking into account normal wear and tear, unless clause 6.1 of the Agreement provides for the Tenant's right to buy out the premises or such a right is provided but not exercised by the Tenant.
7.2. The Tenant is obliged, at his own expense, to prepare the premises for return to the Landlord, including drawing up a Certificate of Return of Real Estate (non-residential premises) in the form agreed upon in Appendix No. 5.
7.3. In case of untimely return of the premises, the Lessor has the right to demand that the Tenant pay 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 compensation in excess of the amount of the fine established by clause 8.3 of the Agreement.
8. RESPONSIBILITY OF THE PARTIES
8.1. The Party that fails to fulfill or improperly fulfills its obligations under the Agreement is obliged to compensate the other Party for losses caused by such violations.
8.2. For late payment of rent, the Lessor has the right to demand from the Tenant payment of a penalty (penalty) in the amount of ___ percent of the unpaid amount for each day of delay.
8.3. For untimely transfer of premises, the Party that violated the Agreement will be obliged to pay the other Party a fine in the amount of ___ rubles.
8.4. Payment of penalties and fines does not relieve the Party that violated the Agreement from fulfilling its obligations in kind.
8.5. In all other cases of failure to fulfill obligations under the Agreement, the Parties are liable in accordance with the law.
9. CIRCUMSTANCES OF FORCE MAJEURE (FORCE MAJEURE)
9.1. The parties are released from liability for non-fulfillment or improper fulfillment of obligations under the Agreement if proper fulfillment turned out to be impossible due to force majeure, that is, extraordinary and unpreventable circumstances under the given conditions, which are understood as: _________________________ (prohibited actions of the authorities, civil unrest, epidemics, blockades, embargoes, earthquakes, floods, fires or other natural disasters).
9.2. If these circumstances occur, the Party is obliged to notify the other Party about this within ___ business days.
9.3. Document issued by _________ (authorized government body, etc.), is sufficient confirmation of the presence and duration of force majeure.
9.4. If force majeure circumstances continue to apply for more than _____, then each Party has the right to unilaterally withdraw from the Agreement.
10. DISPUTE RESOLUTION
10.1. All disputes related to the conclusion, interpretation, execution and termination of the Agreement will be resolved by the Parties through negotiations.
10.2. If an agreement is not reached during negotiations, the interested Party shall submit a claim in writing, signed by an authorized person.
The claim is sent in any of the following ways:
— by registered mail with acknowledgment of delivery;
- courier delivery. In this case, the fact of receipt of the claim must be confirmed by a receipt from the Party. The receipt must contain the name of the document and the date of its receipt, as well as the surname, initials, position and signature of the person who received the document.
The claim entails civil consequences for the Party to which it is sent (hereinafter referred to as the addressee), from the moment the claim is delivered to the specified Party or its representative. Such consequences also arise in cases where the claim was not served on the addressee due to circumstances beyond his control.
The claim is considered delivered if it:
- arrived to the addressee, but due to circumstances depending on him, was not delivered or the addressee did not familiarize himself with it;
- delivered to the address indicated in the Unified State Register of Legal Entities or named by the addressee himself, even if the latter is not located at such an address.
10.3. The claim must be accompanied by documents substantiating the demands made by the interested Party (if the other Party does not have them), and documents confirming the authority of the person who signed the claim. These documents are submitted in the form of duly certified copies. If a claim is sent without documents confirming the authority of the person who signed it, then it is considered unsubmitted and is not subject to consideration.
10.4. The Party to which the claim is sent is obliged to consider the received claim and notify the interested Party in writing about the results within __ business days from the date of receipt of the claim.
10.5. If disagreements are not resolved through the claim procedure, as well as if a response to the claim is not received within the period specified in clause 10.4 of the Agreement, the dispute is referred to the arbitration court at the location of the defendant, except in cases where other jurisdiction is established by law.
11. CHANGE AND EARLY TERMINATION OF THE AGREEMENT
11.1. All changes and additions to the Agreement are valid if made in writing and signed by both Parties. The corresponding additional agreements of the Parties are an integral part of the Agreement.
11.2. The Agreement may be terminated early by agreement of the Parties or at the request of one of the Parties in the manner and on the grounds provided for by law.
12. FINAL PROVISIONS
(if, in accordance with clause 2.1 of the Agreement, the Parties have provided for a rental period of the premises of less than a year or for an indefinite period)
12.1. The Agreement is drawn up in two copies, one of which is kept by the Lessor, the second by the Tenant.
(if, in accordance with clause 2.1 of the Agreement, the Parties have stipulated a rental period for the premises of one year or more)
12.1. The Agreement is drawn up in three copies, one of which is kept by the Lessor, the second by the Tenant, the third is transferred to the body that carries out state registration of rights.
12.2. Unless otherwise provided by the Agreement, notifications and other legally significant messages (hereinafter referred to as messages) may be sent by the Parties by fax, e-mail or other means of communication, provided that it allows one to reliably establish from whom the message came and to whom it was addressed.
12.3. The following are attached to the Agreement:
— extract from the Unified State Register of Real Estate (Appendix No. 1);
— copy of the technical plan (Appendix No. 2);
— Certificate of acceptance and transfer of real estate (non-residential premises) (Appendix No. 3);
— Payment schedule (Appendix No. 4) (if you select the appropriate condition within the framework of clause 5.2 of the Agreement / otherwise, the application should be deleted, the subsequent numbering of the applications should be changed);
— Certificate of return of real estate (non-residential premises) (Appendix No. 5)
13. ADDRESSES, DETAILS AND SIGNATURES OF THE PARTIES
Landlord ____________
Tenant _______________
Lecture 16. Lease agreement
Basic concepts included in the training testing system:
lease contract; the result of the contract; parties to the contract; subject of the contract; price; term of the contract; rental agreement form; main legislative acts; tenant's responsibilities; landlord's responsibilities; the most important responsibility of the tenant; the primary responsibility of the landlord; tenant rights; landlord's rights; rental agreement; subjects of the rental agreement; subject of the rental agreement; rent under a rental agreement; rental agreement term; rental agreement form.
Lease contract (property lease) is an agreement by virtue of which one party - the lessor (tenant) undertakes to provide the other party - the tenant (tenant) with property for a fee for temporary possession and use or for temporary use.
The result of this agreement, as is clear from its definition, is the transfer of property not into ownership (economic management, operational management), but into temporary possession and use.
Lease contract - consensual, paid, bilateral .
Parties to the lease agreement are the lessor and the lessee. They can be individuals, legal entities, or the state. According to Art. 579 of the Civil Code, the right to lease property belongs to its owner. Lessors can also be persons , authorized by law or the owner to lease property. This provision mainly applies to enterprises to which property is assigned under the right of economic management or operational management. Thus, a unitary enterprise can be a lessor of real estate, which is assigned to it under the right of economic management, only with the consent of the owner (clause 3 of Article 276 of the Civil Code). A state-owned enterprise and institution has the right to hand over the property assigned to them under the right of operational management only with the consent of the owner of this property.
Subject of the lease agreement There can only be individually defined non-consumable things. They may gradually wear out, but retain their shape throughout the rental period. Property that has generic characteristics cannot be the subject of a lease agreement. An approximate list of objects that may be the subject of a lease agreement is given in Article 578 of the Civil Code.
The subject of the lease agreement is its essential condition. The lease agreement must contain data that makes it possible to definitely establish the property to be transferred to the lessee as the leased object. In their absence, the condition on the subject of the agreement is considered not agreed upon by the parties and the corresponding agreement is not considered concluded (clause 3 of Article 578 of the Civil Code).
The results of creative intellectual activity cannot be leased: inventions, utility models, selection achievements, topologies of integrated circuits, and other objects of intellectual property. The party that has the exclusive right to use the result of intellectual activity grants the other party permission to use the object of intellectual activity on the basis of a license agreement (Article 985 of the Civil Code).
Resolution of the Council of Ministers of the Republic of Belarus dated June 13, 1990. No. 148 “On types (groups) of enterprises (associations), organizations and types of property that are not subject to lease or purchase” defines a list of objects, the lease of which is not allowed or limited,
The Law of the Republic of Belarus of May 5, 1998 “On objects owned only by the state” determines that the lease of objects specified in this regulatory act is carried out in accordance with current legislation without granting the tenant the right to buy out the leased property.
Price is not an essential term of the lease agreement. The tenant is obliged to promptly pay fees for the use of the property. The procedure, conditions and terms for paying rent are determined by the lease agreement. In cases where they are not defined by the agreement, it is considered that the procedure, conditions and terms usually applied when renting similar property under comparable circumstances have been established (clause 1 of Article 585 of the Civil Code).
However, for a lease agreement for a building or structure, price is an essential condition.
Term is also not an essential condition of the lease agreement. If the lease period is not specified in the agreement, the lease agreement is considered concluded for an indefinite period, and each party has the right to cancel the agreement at any time by notifying the other party one month in advance, and when leasing real estate - 3 months in advance. True, legislation or an agreement may establish a different warning period for the termination of a lease agreement concluded for an indefinite period (clause 2 of Article 581 of the Civil Code).
A lease agreement concluded for a specific period does not automatically terminate upon expiration of the period established by the agreement. If the tenant continues to use the property after the expiration of the contract in the absence of objections from the lessor, the contract is considered renewed for an indefinite period on the same conditions (clause 2 of Article 592 of the Civil Code).
The lessor's objections to the renewal of the contract for a new term must be communicated to the tenant within the period specified in the lease agreement, and if it is not specified in the agreement, this period is established according to the rules of Art. 295 Civil Code.
In accordance with clause 3, art. 581 of the Civil Code, legislation may establish maximum (limit) terms of the contract for certain types of lease, as well as for the lease of certain types of property.
Yes, Art. 29 of the Water Code determines that water bodies can be provided for short-term use for a period of up to 5 years and for long-term use for a period of 5 to 25 years.
Article 13 of the Subsoil Code differentiates deadlines depending on the purposes of subsoil use. Thus, for a period of up to 5 years, subsoil can be provided for use for geological study, for a period of up to 20 years - for the extraction of mineral resources, and for up to 25 years - for combining these types of uses.
The lease period for land plots should not exceed 99 years, and the lease of land plots for agricultural use cannot be less than five years (Article 45 of the Land Code of the Republic of Belarus).
If the lease agreement, for which a deadline is established, does not specify its validity period, then it is valid until the expiration of the deadline, provided that before this moment neither party declares its refusal from the agreement. A lease agreement concluded for a period exceeding the deadline established by law is considered to be concluded for a period equal to the deadline.
Lease agreement form determined in accordance with Art. 580 GK. A lease agreement for a period of more than one year, and if at least one of the parties to the agreement is a legal entity, regardless of the term, must be concluded in writing.
Lease agreements for real estate are subject to state registration, unless otherwise established by legislative acts (clause 2 of Article 580 of the Civil Code).
So, in accordance with the resolution of the Council of Ministers of the Republic of Belarus dated September 20, 2000. No. 1452 “On approval of temporary regulations on the procedure for state registration of lease agreements for buildings, structures, non-residential premises”, lease agreements for buildings, structures, non-residential premises concluded for a period of at least one year are subject to state registration.
Special requirements apply to a property lease agreement that provides for the subsequent transfer of ownership of this property to the lessee . Such an agreement is concluded in the form provided for the contract of sale and purchase of such property (clause 3 of Article 580 of the Civil Code).
The Civil Code distinguishes the following types of lease agreements: rental, rental of vehicles with and without a crew, rental of buildings and structures, rental of enterprises, leasing.
Main legislative acts , regulating rental relations are: Law of the Republic of Belarus dated December 12, 1990 “On Lease”; Decree of the President of the Republic of Belarus dated January 4, 1996 No. 9 “On streamlining the use of buildings, structures and other premises owned by the state”; Decree of the President of the Republic of Belarus No. 30 of January 13, 1998 “On some issues of concluding lease agreements for state property”; Resolution of the Plenum of the Supreme Court of the Republic of Belarus dated March 18, 1994. No. 2 “On the practice of courts’ application of legislation regulating rental relations”, etc.
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