Lease agreement without registration for how long. How to renew a real estate lease agreement on the same terms for a new period (11 months) without registering with Rosreestr? Keeping the lease agreement in force when changing parties

Currently, a successful practice has been formed of recognizing an unregistered long-term lease agreement (from 1 year) and additional agreements to it as concluded, regardless of state registration.

This article is devoted to the legal nature of such transactions and their legal consequences.

What transactions are subject to state registration?

• - paragraph 2 of Art. 609 of the Civil Code of the Russian Federation "The lease agreement for real estate is subject to state registration, unless otherwise provided by law";
• - paragraph 2 of Art. 651 of the Civil Code of the Russian Federation “A contract for the lease of a building or structure concluded for a period of at least a year is subject to state registration and is considered concluded from the moment of such registration”;
• - Several lease agreements in relation to the same lease object with a total term of 1 year or more, concluded simultaneously and without interruption of the term, are also equated to a single transaction subject to state registration in Rosreestr (Decree of the Federal Antimonopoly Service of the North Caucasus District of March 31, 2010 No. in case No. A53-17516/2009).
• - A real estate lease agreement lasting less than a year, but which expires on the last day of the previous month of the next year (i.e. from 01/01/17 to 12/31/17) is equal to a year and is subject to registration (clause 3 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 11, 2002 No. 66 "Review of the practice of resolving disputes related to rent").
• -item 2 of Art. 164 of the Civil Code of the Russian Federation "A transaction involving a change in the terms of a registered transaction is subject to state registration."

Legal Consequences of an Unregistered Lease Agreement

In accordance with paragraph 1 of Article 164 of the Civil Code of the Russian Federation, in cases where the law provides for state registration of a transaction, then its legal consequences of the transaction occur after registration. However, in accordance with paragraph 3 of Art. 433 of the Civil Code of the Russian Federation, the moment of conclusion of an agreement subject to state registration is considered concluded for third parties from the moment of its registration, unless otherwise provided by law. The courts interpreted this provision in such a way that lease agreements that have not passed state registration give rise to rights and obligations exclusively and directly for the Parties to the agreement. Thus, the state registration of a DDA is not mandatory for the parties to the agreement, and none of the parties can refer to the lack of registration as a basis for recognizing a long-term lease agreement as null and void. State registration is aimed at protecting third parties who can acquire rights to the property that has become the subject of the contract.

The formation of such judicial practice on unregistered lease agreements began with the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 17, 2011 No. 73 “On Certain Issues in the Practice of Applying the Rules of the Civil Code of the Russian Federation on a Lease Agreement” (hereinafter referred to as the Resolution). In accordance with paragraph 14 of the Resolution, if the Parties have reached an agreement on all the essential terms of the lease agreement (an individually determined item, the amount of rent), the owner transferred and the tenant accepted the property for use, then the existing relations cannot be arbitrarily changed by one of the parties, and must be carried out and paid in accordance with the terms of the contract. Further, this position was supported in the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation.

In accordance with paragraph 3 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 25, 2014 No. 165 “Review of judicial practice on disputes related to the recognition of contracts not concluded” (hereinafter referred to as the information letter), within the meaning of Articles 164, 165, paragraph 3 of Article 433, paragraph 2 of Article 651 of the Civil Code of the Russian Federation, the state registration of the contract is carried out in order to create an opportunity for interested third parties to know about a long-term lease. An agreement that has not passed the required state registration does not give rise to those consequences (Article 617 of the Civil Code of the Russian Federation, paragraph 1 of Article 621 of the Civil Code of the Russian Federation) that may affect the rights and interests of third parties who did not know about the fact of concluding a lease agreement and about the content of its terms. At the same time, by providing a specific premises for use by the defendant on the terms of the agreement signed by the parties, the plaintiff assumes an obligation (Article 310 of the Civil Code of the Russian Federation), which must be properly performed. To such an obligation in relation to the parties, the rules of civil law on a lease agreement should apply. Therefore, if this does not affect the rights of third parties, then until the end of the period of use specified by the agreement, the defendant has the right to occupy the premises, paying for it a fee established by agreement of the parties. The landlord has the right to demand the return of the premises only after the expiration of the said period of use or in other cases when the obligations of the parties to each other are terminated in a general manner (Article 450 of the Civil Code of the Russian Federation). A different interpretation of the rules of civil law on the state registration of a lease agreement contributes to the unfair behavior of the parties to the agreement, which has not passed the necessary registration, but is being executed by them.

What do the parties to an unregistered lease agreement lose?

Despite the fact that the state registration of the lease agreement does not affect the validity of the transaction, it should be noted that in its absence, the following restrictions may arise:

• - The tenant cannot sublease the rented premises, because an unconcluded lease agreement does not give rise to rights and obligations for third parties;
• - The tenant cannot refer to the preservation of the lease agreement when the owner of the leased asset changes (clause 1 of article 617 of the Civil Code of the Russian Federation does not apply);
• - The tenant does not have a pre-emptive right to conclude an agreement for a new term (clause 1 of article 621 of the Civil Code of the Russian Federation does not apply);
• - In the case of a lease of a land plot, upon receipt by the Tenant's contractor of a construction / commissioning permit, their issuance will be denied, since the rights of the Tenant of the land plot have not arisen for third parties.

conclusions

Thus, the rights of the tenant under unregistered lease agreements cannot be opposed to third parties, both on the part of the Landlord (bona fide beneficiaries, including new tenants for the same object), and on the part of the Tenant (subtenant, contractor). Lack of registration will not bring any benefits to the tenant.

In conclusion, it should be noted that if one of the parties under the lease agreement (most often the Lessee) is obliged to organize the state registration of the transaction, then evading the fulfillment of such an obligation is a violation and the other party may, at its choice, apply to the court for registration of the transaction with the assignment of all costs related to the delay, to the responsible party (Article 165 of the Civil Code of the Russian Federation) or terminate the lease agreement unilaterally due to failure to fulfill an essential condition for state registration of a long-term lease agreement.

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The lease agreement is agreement landlord and tenant on the temporary use of property for a fee.

Parties lease agreements are the landlord and the tenant.

landlord This is a person who provides his property for temporary use. The lessor may be the owner or another person authorized by him.

Tenant a person who accepts property for temporary use for a fee.

Under a lease agreement (agreement), it can be transferred any property, which does not lose its natural properties in the process of its use and is not withdrawn from circulation on the territory of the Russian Federation.

The lease agreement must contain clear description leased property. If the lease agreement does not clearly describe the property that is leased, then such an agreement will be considered not concluded (invalid, inconsistent).

Form and state registration of the lease agreement

According to Article 609 of the Civil Code of the Russian Federation, a lease agreement must be concluded in writing. AT oral form of a lease agreement can be concluded, in the following cases:

• 1. If none of the parties to the lease agreement is a legal entity;
• 2. If the term of the lease does not exceed one year;
• 3. If movable property is rented out.

Real estate lease agreement for more than a year, it should be registered in the Federal Service for State Registration, Cadastre and Cartography of the subject where the leased premises are located.

For more information on the form and state registration of a lease agreement, see article"Form and state registration of the lease agreement".

Term of the lease agreement

Term of the lease agreement must be determined by the landlord and the tenant in the contract itself. The term of the contract can be any. The exception is the maximum terms of the lease agreement established by law for certain types of property. For example, the maximum term of a land lease agreement is 49 years.

If the lease agreement is not provided, then it is considered to be indefinite term, and its termination is possible by sending a written notice to the other party under the contract. Such notice must be sent at least one month before the proposed termination, and if it is a question of terminating the lease of real estate, then at least three months. The terms for sending the said notification may be changed by the parties in the contract.

Provision of leased property

The landlord is obliged to provide the property to the tenant in the condition and within the terms stipulated by the lease agreement. Unless otherwise provided by the lease agreement, the property must be transferred with a technical passport, quality certificate and other accessories.

If the leased property, technical documents and other accessories have not been transferred landlord, the tenant has the right to:

• 1. Fighter ovate property or technical documents and its other accessories from the lessor;
• 2. Terminate the lease agreement;
• 3. Compensate for the losses caused to him.

Rent

Lease payment is a cash payment for the use of the leased property, which must be paid to the tenant in the terms and in the manner prescribed by the lease agreement.

Rent can be of the following types:

• 1. A fixed amount of money.
• 2. Share ratio to the results of the use of leased property(fruits, products or income).
• 3. Provision of services by the tenant to the landlord.
• 4. Transfer to the lessor by the lessor of the thing specified in the lease agreement inproperty or lease;
• 5. Improvement of the leased property at the expense of the tenant.

The parties to the lease agreement may provide for a combination of several types of rent in the agreement or establish its other form. The lessor has the right to change the amount of the rent within the time limits stipulated by the agreement, but not more than once a year.

If the tenant violates the deadlines for paying the rent, the landlord may require the tenant to pay the rent early, but not more than for two consecutive terms.

Rights and obligations of the parties to the lease agreement. Repair of rented premises.

Unless otherwise provided by law or the lease agreement, the lessor is obliged to carry out major repairs of the leased premises within the time period specified in the lease agreement. If the specified period is not provided for by the lease agreement, then the overhaul must be carried out within a reasonable time.

If the landlord has not made a major overhaul of the premises, the tenant has the right:

• 1. to carry out major repairs provided for by the contract or caused by urgent need, and recover from the lessor the cost of the repair or set it off against the rent;
• 2. demand a corresponding reduction in rent;
• 3. demand termination of the contract and compensation for damages.

In turn, the tenant is obliged to maintain the leased property in good condition, carry out current repairs of the leased premises and bear the costs associated with the maintenance of the property, unless otherwise provided by law or the lease agreement.

Keeping the lease agreement in force when changing parties

When the ownership of the leased premises is transferred from the lessor to another person, the lease agreement remains in force and is not subject to change on this basis.

Unless otherwise provided by the lease agreement, in the event of the death of the tenant, his rights and obligations shall pass to his heirs.

Early termination of the lease

The landlord may terminate the lease agreement ahead of time in court if the tenant:

• 1. uses the property with a material breach of the terms of the contract or assignment of the property, or with repeated violations;
• 2. significantly worsens the condition of the leased property;
• 3. fails to pay rent more than twice in a row;
• 4. does not make major repairs to the property, if this is the obligation of the tenant in accordance with the lease agreement or the law.

The tenant may terminate the lease agreement ahead of time in court in the following cases:

• 1. the lessor did not provide the leased property to the lessee;
• 2. creates obstacles for the tenant in using the leased property;
• 3. the leased property has significant shortcomings that were not specified by the lessor and they were not and could not be discovered by the lessee when concluding the contract;
• 4. the lessor does not carry out major repairs of the leased property, if this is his obligation under the contract;
• 5. the property has become unusable for reasons beyond the tenant's control.

The specified list of grounds for early termination of the lease agreement at the initiative of the landlord or tenant is not exhaustive, and therefore it can be expanded by the parties in the contract.

Before going to court with a request to terminate or change the lease agreement, one party to the agreement should send letter to the second party offer voluntarily change or terminate the contract.

Going to court Maybe only after refusal of the other party change or terminate the contract voluntarily or in the event of absence any answer at all.

Preemptive leasehold right

The tenant who performed the lease agreement without any violations has the right to to the pre-emptive right over other persons to conclude a lease agreement for a new term.

If the tenant intends to conclude a lease for a new term, he must in writing about it notify landlord. The term for such notice may be specified in the lease agreement. If the lease agreement does not provide for this period, then such notice must be sent by the tenant within a reasonable time.

If the landlord refused to conclude an agreement with the tenant for a new term, and during the year concluded a lease agreement with another person, the tenant has the right to apply to the court with a claim to transfer the rights and obligations of the tenant to himself and / or to compensate for the losses caused.

The extension of the lease agreement also occurs if the leased property remains in the use of the tenant after the expiration of the lease agreement and the landlord does not object to this. In this case, the lease agreement is considered to be renewed on the same terms for an indefinite period.

Return of leased property to the landlord

Upon termination of the lease agreement, the tenant is obliged to return the leased property to the lessor. The property must be returned taking into account its normal physical wear and tear, unless otherwise provided by the contract. In the event of a delay in returning the leased property, the landlord has the right to require the tenant to pay the rent for the entire delay.

Rental Property Improvements

Unless otherwise provided by the lease agreement, all improvements made by the tenant at his own expense are his property.

If the improvements were made with the consent of the landlord and cannot be withdrawn by the tenant without harm to the leased property, then after the termination of the lease agreement, the tenant has the right to reimburse his expenses for such improvements at the expense of the landlord.

If the improvements were made without the consent of the landlord, then the tenant is not entitled to a refund.

You can find more details about the lease agreement for vehicles, buildings, structures, enterprises, financial lease, rental in the Agreements section.

Keywords: rent, treaty, advocate

You have access to the contract designer. Just log in to the 1C-Start portal and create your rental agreement in 11 minutes. More detailed material on lease agreements below.

Many of us had to enter into contractual lease relations: either office space, renting household items or transport,. All these legal relations are united by the fact that, under a lease agreement, the tenant receives property not in ownership, but only for temporary possession and (or) use. The lease agreement may also provide for the subsequent purchase of property, both during the period of the agreement and after its termination.

Subject of the lease agreement

According to Article 607 of the Civil Code of the Russian Federation, under a lease agreement, the owner (or a person authorized by him) may transfer land plots, isolated natural objects, enterprises and property complexes, buildings, structures, equipment, transport and other property.

The main requirement for rental property is preservation of its natural properties during use(the so-called non-consumable things). Income and products received by the lessee as a result of the use of the leased property are his property.

In addition, the law may restrict or completely prohibit the possibility of renting certain property and establish the peculiarities of the lease of natural objects, including land plots.

The Civil Code distinguishes separate sections on the lease of movable property (rental); transport with and without a crew; buildings and structures; enterprises and financial lease (leasing), rental of residential premises. In this article, we will consider only the general provisions of the lease agreement.

Form of the lease agreement

The lease agreement must be concluded in simple written form if its validity period is more than one year or if one of its parties is a legal entity. Notarization of the lease agreement is carried out at the request of the parties.

Lease holidays: dangerous and tax-safe wording in a lease agreement (Wightman E.)

Article placement date: 01/16/2016

It is safer not to mention rental holidays in the contract.
Manipulating the lease start date is risky.
It is more expedient to "play" with the size of the rent.

At the request of the tenant, the landlord has the right to release him from paying rent for a certain period. That is, to provide rental holidays. Usually this time is necessary for the tenant to carry out repairs or redevelopment in the rented premises.

Rental holidays may also be granted for other reasons. Even a few years after the start of the lease. For example, to convert an office space into a store or vice versa. The parties themselves determine the duration of the rental vacation.

The tax consequences of rental holidays depend on how the condition for their provision is spelled out in the lease agreement. Let's figure out which formulations are most beneficial in terms of taxation for the tenant and the landlord.

It is dangerous to indicate in the contract that the tenant does not pay rent for several months

During the rental period, the tenant retains the right to use the leased object. But he does not pay rent during this period. There is free use of the property. If this is explicitly stated in the lease agreement, the adverse tax consequences are guaranteed to both the tenant and the landlord (see table below):

Dangerous term of the lease agreement about rental holidays

"For the period from November 16, 2015 to January 31, 2016, the Lessor provides the Lessee with rental holidays. During the rental holidays, the Lessee is exempt from paying rent for the leased premises."

Table

Tax consequences of gratuitous lease of depreciable property

With this wording in the contract, the tenant has non-operating income in the form of economic benefits from the gratuitous use of the premises (clause 1, article 41 of the Tax Code of the Russian Federation). Income tax must be paid on this income (clause 8, article 250 of the Tax Code of the Russian Federation).

The base for this tax is determined based on the market rental rate for identical real estate objects (clause 2 of the Review given in the Appendix to the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of December 22, 2005 N 98, Letters of the Ministry of Finance of Russia of August 25, 2014 N 03-11-11 /42295 and dated 05.07.2012 N 03-11-06/2/84). But the tax authorities will certainly focus on the rent under the contract. That is, they will require that the tenant include in non-operating income the rent for the months during which he was granted rental holidays.

The landlord will have to charge VAT on the amount of rental payments that he did not receive for these months (clause 1 clause 1 article 146 and clause 2 article 154 of the Tax Code of the Russian Federation). Also, he will not be able to accrue depreciation of the premises in tax accounting. After all, property transferred for gratuitous use is excluded from the composition of depreciable property (clause 3, article 256 of the Tax Code of the Russian Federation).

The discrepancy between the start date of the lease and the date from which the rent is paid will lead the tax authorities to think about rental holidays

Even if the lease does not say that the tenant is exempt from rent payments, other factors may indicate this. First of all, the discrepancy between the date when the tenant received the right to use the premises, and the date from which he pays the rent.

For example, the parties entered into a lease agreement on October 12, 2015. This date is on the agreement. They agreed on a two-month rental holiday and arranged it like this:

Dangerous condition about the date from which the rent payments are paid

"1. From the moment of the conclusion of this agreement, the Lessee is granted access to the leased premises. The Lessee has the right to carry out repairs, re-equipment and other work in them necessary to bring the leased premises into a condition suitable for their intended use.

The date when the tenant gained access to the rented premises is likely to be considered by the tax authorities as the beginning of the lease. The tenant will start paying rent two months after the start of the lease. This means that during these two months he uses the premises free of charge. Therefore, it must include in non-operating income the amount saved on rent (clause 8, article 250 of the Tax Code of the Russian Federation). And the landlord is obliged to charge VAT on unreceived rent and is not entitled to depreciate the premises in tax accounting (clause 1 clause 1 article 146 and clause 3 article 256 of the Tax Code of the Russian Federation).

The situation will not be improved by the inclusion in the contract of the condition that during the transition period the tenant is not entitled to use the premises for its intended purpose. For example, as an office or shopping center:

Dangerous condition on restrictions on the use of rented premises

"From the moment of the conclusion of this agreement, the Tenant has access to the leased premises, but until December 11, 2015, he is not entitled to use them for their intended purpose (as office premises)."

The fact that the tenant has access to the rented premises is sufficient to consider that he began to use this object. And since it is used free of charge, there is a risk of additional taxes being charged to both parties to the contract.

Several safe options

Option one - reduce the rent for the first months of rent, but within reasonable limits

Suppose the parties have agreed on a long-term lease of office space. Preliminarily for one year with the subsequent annual prolongation of the contract. The rent for the entire office is 200,000 rubles. per month. During the renovation, the landlord provided a rental vacation for a period of three months.

Under such conditions, the rent for the first year of the lease will be 1,800,000 rubles. . The parties may prescribe in the lease agreement that for the first four months the rent is 50,000 rubles. per month, and then rises to 200,000 rubles. per month. The amount for the year will remain unchanged - 1,800,000 rubles. [(50,000 RUB x 4 months) + (200,000 RUB x 8 months)].

The temporary reduction in rent can be logically explained by the need for repairs in the rented premises:

2. For the period of repair and finishing work in the leased premises (from November 16, 2015 to March 15, 2016), the rent is 50,000 (fifty thousand) rubles. per month, including VAT 18%.

The legislation does not contain restrictions on rent reduction. The parties independently agree on a price that suits them (clause 1, article 424 of the Civil Code of the Russian Federation). But it is still risky to reduce the rent for the first months to an implausible amount. For example, up to 1 rub. per sq. m per month or up to 1000 rubles. per month for a large room. Tax authorities can equate this to the gratuitous use of the object and charge additional taxes to the tenant and landlord.

This option is inconvenient for the tenant, since under the terms of the contract he will have to pay rent for the first month of rent. That is, there will be no rental holidays as such. Only the total amount of rent payments for the year will decrease.

The parties have the right to add a deferred payment clause to the contract. For example, for the same three months of rental holidays. There are no tax risks involved. The main thing is that no interest is charged for granting a deferment from the tenant (clause 1 of article 823 of the Civil Code of the Russian Federation). Although the condition of deferred payment may lead the tax authorities to believe that the parties thus veiled the rental holidays.

Option two - spread the rent evenly over the first year of the lease

This option is similar to the previous one. Only the amount of rent during the first year or other period does not change.

Let's use the condition of the above example. Taking into account the rental holidays for three months, the rent for the first year of the lease will be 1,800,000 rubles. The parties indicate in the agreement that the rent is 150,000 rubles. per month (1,800,000 rubles: 12 months):

Safe lease clause for rent reduction

"1. The rent during the first year of the lease is 150,000 (one hundred and fifty thousand) rubles per month, including 18% VAT.

2. An agreement on the amount of rent for the next year or another period is formalized by an additional agreement to this agreement.

At the end of the first year of the lease, the parties will renegotiate the contract for the new year or sign an additional agreement to it on changing the rent. That is, they will fix that the rent from the second year of the lease will be 200,000 rubles. per month.

Option three - set off the tenant's expenses for the repair of the premises against the payment of rent payments

With this option, the rent is set from the first month of rent in full. But the tenant does not pay for the rental period.

Since the landlord agrees to reimburse him for the repair of the rented premises by offsetting them against the payment of the rent. This is allowed by civil law (clause 2, article 614 of the Civil Code of the Russian Federation).

Let's use the above example again. Possible wording in the lease agreement:

Safe condition for offsetting the cost of repairs against the rent

"1. The rent is 200,000 (Two hundred thousand) rubles per month, including 18% VAT.

7. The Lessee carries out repairs, re-equipment and other works in the leased premises necessary to bring it into a condition suitable for use as an office space.

8. The Lessor shall reimburse the Lessee for the costs associated with the repair, re-equipment of the leased premises and carrying out other work in it necessary to bring it into a condition suitable for use as an office space.

9. Reimbursement of the costs specified in clause 8 of this agreement is carried out by offsetting them against the payment of rent for the first three months of this agreement. The offset is drawn up by an act of offset, which is signed by the Tenant and the Landlord.

10. Starting from the fourth month of this agreement, the Lessee pays the rent to the Landlord in the amount specified in clause 1 of this agreement.

It is also necessary to state in the lease agreement that it is the responsibility of the landlord to carry out current repairs in the rented premises. After all, as a general rule, the lessor is obliged to make only major repairs at his own expense (clause 1, article 616 of the Civil Code of the Russian Federation).

The current repair is entrusted to the tenant (clause 2 of article 616 of the Civil Code of the Russian Federation). But in the lease agreement, the parties may establish a different procedure. For example, they have the right to indicate that the landlord is carrying out both major and current repairs of the premises.

A lease (property lease) agreement regulates the legal relationship between the lessee and the lessor in the transfer of property and protects them in case of default by one of the parties. Therefore, it is very important to correctly establish all the necessary conditions in the contract. Three articles will be devoted to the lease agreement. In them, 1C: ITS specialists will talk about what pitfalls exist when concluding and executing a contract and how to get around them without loss for themselves. Both legal and tax aspects of the agreement will be considered. The first article will analyze in detail the conditions for concluding a lease agreement, which have the same meaning for both parties to the agreement. In the next two articles, we will talk about the tax consequences of concluding this agreement for the landlord and tenant.

What is a lease agreement and in what form should it be concluded?

Under a lease agreement, one party (the lessor) transfers property to the other party (the lessee) for a fee for temporary possession and use or for temporary use (Article 606 of the Civil Code of the Russian Federation). At the same time, the transfer of ownership of this property to the tenant does not occur, except in cases where the contract provides for the right of redemption.

If the agreement does not provide for payment for the use of property, then such an agreement is recognized as a loan agreement (gratuitous use of property). This type of legal relationship is regulated by the norms of chapter 36 of the Civil Code of the Russian Federation.

The rules relating to the lease agreement apply in this case only partially.

The lessor under a lease agreement may be the owner of the property or another legal owner authorized by the owner or the law to lease this property (Article 608 of the Civil Code of the Russian Federation). Thus, a person who has a power of attorney on behalf of the owner for the right to lease property can be a landlord.

Any capable citizen, individual entrepreneur or legal entity can be a tenant.

The law allows you to conclude a lease agreement orally, but in most cases a written form is used, since it allows you to agree on all the terms of the agreement in more detail and eliminates many disagreements between the parties in the process of its execution.

The lease agreement is concluded in writing if:

• the term of the contract is more than one year (clause 1 of article 609 of the Civil Code of the Russian Federation);
• one of the parties to the agreement is a legal entity (clause 1, article 609 of the Civil Code of the Russian Federation);
• the object of the contract is a building or structure (clause 1, article 651 of the Civil Code of the Russian Federation);
• the object of the contract is a vehicle with a crew (Article 633 of the Civil Code of the Russian Federation).

Do I need to register a lease agreement?

The lease agreement is subject to mandatory state registration if the object of the lease is real estate or an enterprise (clause 2, article 609, article 658 of the Civil Code of the Russian Federation).

There are exceptions to this rule. So, for example, prisoners for a period of less than one year are not subject to state registration (clause 2 of article 651 of the Civil Code of the Russian Federation, clause 2 of article 26 of the Land Code of the Russian Federation):

• land lease and sublease agreements;
• lease agreements for buildings or structures.

Regarding vehicle lease agreements with and without a crew, the law also stipulates that they are not subject to state registration (Articles 633, 643 of the Civil Code of the Russian Federation).

The civil law does not resolve the issue of whether it is necessary to register a lease agreement for non-residential premises.

On the one hand, all non-residential premises are part of buildings and structures, and on the other hand, they are not directly listed along with these objects.

This issue was clarified only in the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of 06/01/2000 No. 53. In the opinion of the arbitrators, the same rules apply to lease contracts for non-residential premises as to contracts for the lease of buildings and structures. Therefore, a lease agreement for non-residential premises must be registered only if it is concluded for a year or more.

Also, in the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 16, 2001 No. 59, the following is explained: if a real estate lease agreement is concluded for a period of 11 months, but the conditions provide for its automatic extension for the same period, then such an agreement does not need to be registered.

What is the subject and object of the contract?

In a lease agreement, a distinction should be made between the subject and the object of the agreement.

The subject of the contract is the obligations of the parties to transfer property and use it in accordance with the terms of the contract, as well as to pay a fee for such use.

To determine the object of the lease, it is necessary to clearly define the characteristics of the property that is leased.

The objects of lease can be (clause 1 of article 607 of the Civil Code of the Russian Federation):

• land plots and other isolated natural objects;
• enterprises and other property complexes;
• buildings and constructions;
• equipment;
• vehicles;
• other things.

In order for the lease agreement to be recognized as concluded, it must contain data that makes it possible to determine which property is to be transferred to the tenant.

If there are no such data in the contract, the condition on the object is recognized as inconsistent, and the contract is recognized as not concluded (clause 3 of article 607 of the Civil Code of the Russian Federation).

Thus, in the contract it is necessary to indicate as precisely as possible the individually-defined features of the property that characterize it.

Such data on property include (decree of the Federal Antimonopoly Service of the Volga District of December 16, 2009 in case No. A65-13380 / 2009):

• its location relative to other objects;
• area, technical characteristics;
• other features that individualize the object.

It would also be useful to indicate the address, the technical characteristics of the property, the type of permitted use (for land).

As the analysis of judicial practice shows, the constituent parts of a thing cannot be the object of a lease. For example:

a separate structural element of a building (roof, wall, etc.) (clause 1 dated 11.01.2002 No. 66 "Review of the practice of resolving disputes related to rent");

part of the cable line (decree of the Federal Antimonopoly Service of 07.17.2007 in case No. A55-12242 / 06-33).

How to specify the term of the contract?

The condition on the lease term indicates the period of time during which the lessee has the right to use the leased thing and is obliged to pay rent for this. In accordance with paragraph 1 of Article 610 of the Civil Code of the Russian Federation, the lease term is established by the parties in the contract.

The term of the contract can be determined:

• calendar date;
• the expiration of a period of time calculated in years, months, weeks, days or hours;
• an indication of an event that must inevitably occur.

It is necessary to distinguish between the term of the lease itself and the term of the contract. Often times these times don't match. So, for example, leased property can be transferred to the tenant (clause 2 of article 425, clause 3 of article 433 of the Civil Code of the Russian Federation):

• before the lease agreement is signed;
• before the state registration of the contract, when such registration is necessary.

In these cases, if the parties agree, their rights and obligations (including the obligation to pay rent) may also extend to the period preceding the signing or state registration of the contract.

In practice, there are two types of disputes about the payment of rent: if the property is used before the conclusion of the contract or after the expiration of its validity, or if the property is not used, but the contract is still valid.

If the property is used in the period preceding the state registration of the contract, then it is necessary to determine whether there was an agreement on the use of the property during this period. Such an agreement may directly follow from the terms of the contract or follow from other terms. If there is an agreement, then the rent is paid for the entire period of use of the property (Decree of the Federal Antimonopoly Service of the East Siberian District dated June 15, 2011 No. F02-2137/11 in case No. A33-13835/2010).

If the contract has terminated, but the tenant has not returned the property, then he is also obliged to pay rent for the entire time of delay (clause 38 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 11, 2002 No. 66). This is due to the fact that the termination of the lease agreement does not entail the termination of the tenant's obligation to pay rent if the property is not returned to the landlord.

In a situation in which the lease agreement is still valid, but the property has been returned, the tenant is also obliged to pay lease payments before the termination of the lease agreement (clause 13 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 11, 2002 No. 66).

Please note that according to paragraph 2 of Article 621 of the Civil Code of the Russian Federation, if after the expiration of the lease agreement the tenant continues to use the leased property, and the landlord does not object to this, the agreement is considered automatically renewed on the same terms for an indefinite period.

The contract is recognized as concluded for a certain period only if the condition on the period is included in its text. If there is no such condition in the contract, it is considered concluded for an indefinite period. Such an agreement has some features of the procedure for its termination.

So, for example, if the term of the contract is not defined, on the basis of paragraph 2 of Article 610 of the Civil Code of the Russian Federation, any of the parties may at any time withdraw from the contract, but is obliged to notify the other party of this at least one month in advance. If the property is leased out, the notice period is three months. Compliance with these deadlines by the parties is mandatory if they have not provided for other notice periods in the contract.

For some types of lease (for example, a rental agreement (Article 627 of the Civil Code of the Russian Federation)) and types of leased property (for example, forest plots (clause 3 of Article 72 of the Forest Code of the Russian Federation), water bodies (Article 14 of the Water Code of the Russian Federation)), The law may set maximum terms for the duration of a lease agreement. In these cases, the contract is terminated at the expiration of the maximum period. If the parties have agreed in the contract for a period exceeding the maximum, the contract is also valid only until the expiration of the maximum period (clause 3, article 610 of the Civil Code of the Russian Federation).

How to set rent?

It should be borne in mind that, on the basis of paragraph 12 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 11, 2002 No. 66 “Review of the practice of resolving disputes related to rent”, the rent cannot consist entirely of utility bills, since in this case the tenant does not derive any benefit from the lease of property, which contradicts the compensated nature of the lease agreement.

So, we have considered issues common to the parties that are important to highlight in the lease agreement.

In the next issue, we will consider the practical aspects of the execution of the contract from the point of view of the landlord.

All the information provided is available in the ITS PROF system in the Handbook on contractual relations in the "Legal Support" section.