Transfer by the owner of his property into trust management. Real estate trust management agreement

In order to save their own time, property owners often transfer partial control rights to other persons. This possibility is provided for both commercial and residential real estate. In the article we will tell you what features such a transfer of rights has and how to draw up a real estate trust management agreement.

Trust management involves the transfer of property from one person (the management founder) to another person (the trustee) for a certain period of time in trust management. In this type of transaction, the manager must act in the interests of the founder or a third party - the beneficiary.

Trust management does not entail a transfer of ownership.

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This type of relationship is relevant, for example, if a person owns several real estate properties that he rents out. This takes a lot of time, so citizens draw up a trust management agreement, eliminating the need to waste their time and effort. The transfer of control is no less relevant if the owner moves for permanent residence abroad or will be absent for a long time for another reason.

However, not all real estate objects can become the subject of trust management. It is prohibited to enter into such transactions in relation to:

  • forests;
  • bodies of water;
  • subsoil;
  • real estate in municipal or state ownership.

As a rule, the object is property, as a result of the use of which profit can be made. But the money itself cannot be transferred to management - only as part of the company’s property.

The question often arises whether a collateral property can be subject to trust management. According to Art. 1019 of the Civil Code of the Russian Federation, this is allowed. In this case, nothing changes for the mortgagee in the legal sense. However, the owner is obliged to notify the manager that the property has encumbrances.

The trustee receives a certain fee for the services provided. In addition to directly managing the property, he is obliged to promptly pay the necessary payments for housing and communal services, as well as monitor the safety of the owner’s property.

We can highlight the main functions of the manager if the property is intended to be rented out:

  • searching for tenants whose characteristics meet the requirements of the property owner;
  • conclusion of a lease agreement;
  • receiving monthly rent;
  • control over the timeliness of payment transfer;
  • rendering household services if necessary (repairs, calling utility services, installing an alarm system, etc.);
  • insurance of the object against the risk of loss;
  • solution controversial issues with tenants;
  • other services, if they are specified in the text of the contract.

Like any legal relationship, trust management has legal nuances and features. Let's consider them further.

Features of trust management of real estate

The relationship between the founder of the management and the manager is regulated by Chapter 53 of the Civil Code of the Russian Federation. From a legal point of view, the basis of such relations is the agreement of trust management of real estate.

According to the Civil Code of the Russian Federation, an agreement is drawn up in writing and is subject to state registration. Otherwise, it will be considered invalid.

If adjustments and additions are made to the existing agreement that do not affect the transfer of rights to the subject of management, then they do not need to be registered. Only the main transfer of rights is subject to registration.

The term of the contract cannot be more than five years. If at the end of this period the parties have not declared their intention to terminate the agreement, then the agreement will be considered extended for the same period and on similar terms as the original document.

The document comes into full force from the moment it passes the state registration procedure with Rosreestr. Before this happens, the actions of the parties cannot serve as a basis for changing their legal relations with third parties (for example, with utilities, tenants, etc.).

Thus, even if the parties stipulate in the agreement that it comes into force from the moment of signing or from a specific date, before state registration, all obligations to third parties will be borne by the owner, and not the manager.

When drawing up a trust management agreement, the owner should pay attention to a number of nuances. First of all, if the subject of the transaction is leased, the tenants should be notified of the conclusion of an agreement with the manager. This is not the responsibility of the owner, but such actions would be reasonable, because another person will act on his behalf for the duration of the contract. Tenants should be notified so that they contact the manager with all questions and the rent payment is transferred to him.

The lease agreement between the owner and the tenant remains in force. It is necessary to draw up an additional agreement on the change of persons in the obligation. In the case where the lease agreement was concluded for a period of more than a year, the agreement must be registered with Rosreestr (Article 651 of the Civil Code of the Russian Federation).

When conducting any transactions in relation to the subject of trust management, the manager is obliged to convey to the counterparties his legal status. When signing documents, he must put the mark “D.U.”

The manager may transfer management to a trustee. However, he will still bear all obligations to the owner.

In accordance with Art. 1023 of the Civil Code of the Russian Federation, the manager has the right to receive not only remuneration, but also compensation for reasonable expenses that relate to the subject of the transaction.

Property trust management agreement

The text of the agreement begins with information about the time and place of preparation, personal data of the parties to the transaction and characteristics of the subject of the agreement. The latter is given special attention.

Must be described in detail in the text specifications of a property, its cadastral number, as well as other data that makes it legally recognizable among similar ones. The subject of the contract also includes the permissible activities of the manager in relation to the object.

After the information listed, the text of the document includes the following data:

  • property management rules (including possible restrictions);
  • rights and obligations of the parties;
  • management reporting rules;
  • liability of the parties;
  • procedure for terminating the contract;
  • sanctions and penalties for violation of conditions;
  • procedure for resolving disputes;
  • final provisions that reflect the nuances of the transaction;
  • details, contact information and signatures of the parties.

The essential terms of the trust management agreement, without which it cannot be recognized as valid, are:

  1. Detailed description of the subject of the agreement.
  2. Personal data of the parties.
  3. The amount and form of payment for services to the manager, if provided for by the terms of the document.
  4. Validity period of the document.

As mentioned above, the agreement must go through the state registration procedure. This is necessary if the document is concluded for a period of more than a year. The parties to the agreement can be citizens, individual entrepreneurs and organizations. Such activities are prohibited for state and municipal entities.

Termination of the agreement is possible based on notification from the counterparty. Thus, the contract can be terminated at the will of one of the parties. In addition, the deal is terminated if:

  • the beneficiary refuses to receive income under the contract;
  • the beneficiary dies, and the contract does not provide for the option of transferring rights to another person;
  • circumstances have arisen that prevent the manager from fulfilling his obligations under the contract;
  • the owner decided to terminate the contract (in this case, he pays the manager a fee stipulated by the terms of the document);
  • the manager is declared incompetent, declared bankrupt or dies;
  • the founder of the management is declared bankrupt.

In addition to the above features, trust management has other nuances depending on the type of subject of the agreement.

Nuances of trust management depending on the type of property

There are two types of property – residential and commercial. Let's look at each in more detail.

If the property is residential

As a rule, an agreement is concluded between the owners of apartments or houses and realtors (both individual and companies), if the owner of the property lives in another region.


The manager independently finds tenants, enters into an agreement with them, and monitors compliance with the rules for the use of residential premises. If violations are detected, he has the right to evict the tenants, as well as recover compensation from them for damage caused.

The manager can contact judiciary with the requirement:

  • carry out repairs;
  • replace damaged equipment;
  • buy new furniture to replace damaged ones.

To achieve justice, it is necessary to formalize the transfer of the apartment for use by the tenant on the basis of a transfer and acceptance certificate.

If the property is commercial

Quite often, commercial real estate is empty because the owner cannot find tenants or does not have the time to do so. At the same time, the presence of such property entails certain maintenance costs, so trust management comes in handy.

The transfer of management of commercial real estate is carried out only upon execution of a transfer and acceptance certificate. The manager finds tenants and conducts all necessary negotiations, acting in the interests of the owner.

If you encounter any difficulties with drawing up a real estate trust management agreement, please contact legal advice to a specialist. A professional lawyer will be able to help in drawing up the document and tell you about the possible legal nuances of the transaction.

Whatever the subject of trust management, it should be remembered that the manager receives only partial property rights. That is, he cannot sell or otherwise transfer ownership of the real estate, since he himself does not have it.

Trust management is an integral part of the modern set of financial instruments in developed countries. This convenient opportunity free yourself from a number of responsibilities or entrust certain work to professionals who specialize in it. So let's look at the basics of trust management.

general information

First, let's understand the terminology. Trust management is a service that is provided by specialized companies in the securities market. In this case, the client transfers funds or other assets.

All important points are specified in the contract. Management Company in the future will carry out transactions on its own behalf, but always in the interests of the client. For this, she receives a certain remuneration in the form of a percentage of the value of assets that are under management or a part of the profit earned. Trust management is a reliable tool for preserving and increasing your assets. These services are usually provided in individually. This takes into account the personal needs of clients, as well as their investment goals.

What does the final result depend on?

There are many different aspects that need to be taken into account. This includes a property trust management agreement, the company’s experience, and much more. But greatest influence renders the professionalism of the employees who carry it out. Therefore, when concluding an agreement, it would be a good idea to inquire about the successful results of the specialist who will be making transactions. You should also carefully read the property trust agreement. In most cases, profitability is not guaranteed. But this applies to those cases when there is an economic situation. If insurance is offered, then you should seriously think about whether the company will be able to fulfill its obligations. Are there any means for this? Thanks to such simple fabrications, you can determine an acceptable level of risk and profitability for yourself.

Who can provide these services to us?

Trust management is quite popular destination. That's why this service offered by most major investment companies and banks. The average price in this case fluctuates around 15% of the profit received.

It should be noted that companies prefer to work with more or less significant amounts. In order to weed out people with a small amount of savings, minimum thresholds for the amount of funds that can be transferred under trust management are often introduced.

By the way, a little more about the trust management agreement. A sample transaction can be provided to help guide the client. Therefore, if there are any problems or questions, it is necessary to clarify them with a specialist on the spot.

What can you convey?

Trust management is a service that covers a wide range of objects. Thus, among them are office buildings, industrial and warehouse premises, retail space, housing stock, securities, copyrights and much more. Even enterprises and various property complexes can act as objects. Regarding money, it should be noted that there are a number of certain restrictions. Also, property that is under operational management or economic control cannot be transferred. Even trust management of the apartment can be carried out.

Enterprise as an object

What are the features in this case? Let's talk about the property complex that is used for entrepreneurial activity. It includes everything you need to get the final result. These are land plots, structures, buildings, equipment, raw materials, inventory, products, etc.

A property complex is allowed to be transferred into trust management only when it is not a unitary enterprise. Why is that? The fact is that unitary enterprises are always either under operational management or under economic management. But let's return to the topic of the article. In this case, the essence of trust management is that an external company is involved and the corresponding rights are delegated to it for a specific period.

It should be noted that existing bodies legal entity like the general meeting and the directors do not stop working. They continue to perform their duties. But in this case, the legal regime of restrictions applies, which is defined in the concluded agreement. It should contain a detailed list of available property. It should be noted that not the entire property complex, but only its structural subdivision can be transferred to trust management.

Let's say a word about the agreement

It must always be concluded in writing. A property trust agreement is extremely important document. If it is violated, during a dispute it will not be possible to refer to witness testimony - only to documentation.

All terms of the contract can be divided into essential and optional. Without the first, the document will not be considered concluded. Optional terms are included in the contract at the request of the parties. The essential ones are:

  1. The composition of the property that is transferred to trust management, as well as its value.
  2. The name of the person in whose interests the actions will be carried out;
  3. Limits of the rights of the trustee.
  4. Validity period of the contract.

The document can be concluded in the interests of both the owner and a third party, called the beneficiary. It should be noted that the contract term cannot exceed 5 years. If after this time no application for its termination has been received from either party, then it is considered that it has been extended.

What can be specified as optional conditions?

At the service of people:

  1. Create certain restrictions regarding certain actions during the management of property.
  2. Possibilities for managing real estate.
  3. Transfer to another person.
  4. Procedure, timing and necessity of submitting a report.
  5. Review and detail the responsibilities of the trustee.
  6. Instructions regarding the transfer of property.
  7. Succession in case the beneficiary died (individual) or was liquidated (organizational structure).
  8. The procedure for reimbursement of expenses incurred by the trustee during the performance of his functions.

Who can act as a principal?

Suitable for this commercial organization and individual entrepreneur. It should be understood that if a legal entity carries out fiduciary activities, then this fact must correspond to the goals established in the constituent documentation. Their main responsibility is to manage the property necessarily and exclusively in the interests of the owner or beneficiary. Depending on the goals set, it can acquire different shapes. The range here is wide - starting from preserving property and ending with the acquisition of certain benefits. Therefore, a clear definition of the tasks that the manager faces is the basis for trusting interaction, which should be noted in the contract.

It should be understood that the person managing the property will not have equal rights with the owner or beneficiary. Thus, an asset cannot be transferred for management to another person, nor can it be sold with payment to the manager’s pocket. But there are exceptions here.

About the trusted leader

As a rule, they carry out management themselves. But this responsibility can be delegated to another person in a number of cases:

  1. If there is authority under the contract.
  2. In the presence of written consent from the owner.
  3. Due to certain circumstances, when it is not possible to ensure interests within the prescribed period.

It should be noted that the trustee is responsible for the steps of the attorney as if they were his own.

What if the manager did not fulfill his obligations?

In this case, he is obliged to compensate:

  1. To the founder - losses that were caused by damage or loss of property.
  2. The beneficiary receives income lost during management.

The manager will be held liable if he does not prove that the situation arose due to actions:

  1. Founder.
  2. Beneficiary.
  3. Insurmountable situations.

The legislative framework

This is probably where the article should begin. Of greatest interest to us is the Civil Code of the Russian Federation, Chapter 53. It contains articles that regulate relationships. Below we will consider exclusively the rules of trust management.

Article 1013 discusses what can act as an object of trust management. In general, it was discussed well earlier, so there is no point in retelling it. Article 1014 stipulates the position of the founder. It clearly states that this role can only be played by the owner of the property. So, if trust management of an apartment is planned, then only the person to whom it belongs can transfer it.

Article 1015 stipulates various points with the trustee. It informs about who can act in his role when leadership is carried out on the grounds provided for by law. There is also a provision that the property cannot be transferred government agency or local government.

It should also be understood that the trustee cannot be a beneficiary. This state of affairs is established by law.

We continue to study

And the next one is Article 1016. It discusses the essential terms of concluded contracts. So, it is she who requires that the property be transferred to trust management. It is also necessary to indicate the name of the citizen or the name of the legal entity in whose interests the activity will be carried out. Data on the size and form of remuneration for managers, as well as the period of validity, are also of interest. This is where the requirement is that the contract should not exceed five years. And if none of the parties declares termination upon expiration, then it is considered that it is extended under the previous conditions.

Let's move on to Article 1017. It provides that the contract must be drawn up in writing. And when transferring real estate, you must additionally go through the state registration procedure. If the form of the contract is not observed, this may serve as a reason for declaring it invalid. Therefore, it is necessary to ensure that the transfer of property into trust management is carried out by competent people.

The next one is Article 1018. It stipulates the specifics of separating property that is in trust management. So, it contains a provision on the division of property that the founder has and which is managed by the invited management. For example, debt collection cannot be carried out except in bankruptcy. Therefore, in order to carry out trust management, a separate bank account is opened, through which payments are made.

Conclusion

Article 1019 describes the transfer of property that is encumbered with a lien. In this case, the mortgagee has the right to recover it, if there is legal grounds. In this case, the manager must be warned about such possible development business Article 1020 lists the rights and obligations of the manager who will be engaged in trust property. It describes what it can do, in what cases, and how this process is regulated.

The transfer of property under trust management is regulated by Article 1021. It also considers the possibility of delegating powers to another person. Section 1022 describes the responsibilities that a trustee has. So, it carefully examines when he is responsible for losses incurred, what obligations he fulfills, etc. Important here they are given to the contract. Section 1023 deals with executive compensation. Here, too, attention is paid to the contract. Article 1024 contains the grounds for termination of a transaction. Moreover, both normal failure and force majeure events are considered.

Not everyone individual entrepreneur there is an opportunity, in addition to the activities that he conducts in accordance with the certificate of state registration, to also competently manage his property. After all, as a rule, possession certain types property provides its owner not only with income. There are a lot of hassles associated with maintaining and using property.

That is why in Lately More and more entrepreneurs prefer to put their existing real estate and securities into trust management. As a result, they only receive profit from the use of their property - however, minus the costs of its maintenance and the remuneration of the trustee.

An individual entrepreneur himself can also act as a trustee, except for cases specifically provided for by law.

Fiduciary management relations (or trust relations) are relatively new to Russian legislation and business practice. However, they are gaining increasing popularity among entrepreneurs. The author’s task is to help you understand the features of these operations.

Legal basis of trust management

Trust management of property is the process of managing property transferred by the founder of management to a trustee for a certain period. Relations between participants in the process are regulated Civil Code RF.

The owner can transfer his property into trust management to another person (trustee). In this case, the trustee does not receive ownership rights to the transferred property (clause 4 of Article 209 of the Civil Code of the Russian Federation).

Thus, the powers of the owner are transferred to the manager only within the limits established by the contract and law, allowing the latter to carry out not only legal, but also actual actions in the interests of the beneficiary.

If the trustee enters into a transaction orally, then he must warn the counterparty about his status, that is, that he acts as a trustee (clause 3 of Article 1012 of the Civil Code of the Russian Federation). If the transaction is made in writing, then in the documents after the name or title of the trustee the mark “D.U.” must be made.

In case of non-compliance this condition It is considered that the manager has made a transaction for personal purposes, and not in the interests of managing someone else’s property, and he will be liable for it to the counterparty with his personal funds, and not with the property transferred to him for management (Clause 3 of Article 1012 of the Civil Code of the Russian Federation).

In practice, the question often arises about which documents bear the mark “D.U.” must be entered. For example, only when signing contracts, additional agreements, letters, or in all cases where a person acts as a trustee?

So, often the mark “D.U.” is indicated in payment orders for the payment of any amounts. A number of organizations and entrepreneurs acting as managers put the mark “D.U.” even in orders to pay rent. This is not entirely true. Settlement documents must contain a number of details (clause 2.10 of the Regulations of the Central Bank of the Russian Federation dated October 3, 2002 No. 2-P “On non-cash payments in the Russian Federation”). In particular, the name of the recipient of the funds, his account number and taxpayer identification number (TIN). Meanwhile, the mark “D.U.” is not part of the name of the organization or individual entrepreneur. So, in payment order should not be marked “D.U.” In the “Purpose of payment” column of the payment order, in the author’s opinion, a reference should be made to the document in accordance with which the payment is made.

Thus, the use of the mark “D.U.” should not conflict with regulations, establishing the procedure for processing documents in a particular area.

It is not uncommon that certain agreements have already been concluded in relation to the transferred property. A typical example is real estate lease agreements. The transfer of real estate into trust management does not in any way affect the tenants, since the transfer of property into trust management is not grounds for termination of the lease agreement. Exactly the same as the transfer of ownership (Article 617 of the Civil Code of the Russian Federation). Their agreements with the property owner remain valid. However, the owner and trustee are interested in bringing to the attention of tenants the fact of concluding a property management agreement. This is necessary to ensure that the tenants fulfill their obligations under the lease agreement to the manager. They must also turn to him to exercise their rights under the contract. This can be done by concluding an additional agreement on the change of persons in the obligation to the lease agreement. It is necessary to take into account that lease agreements for a building or structure concluded for a period of more than one year are subject to state registration (Article 651 of the Civil Code of the Russian Federation). Accordingly, it is necessary to register all additional agreements to such contracts.

As for the lease agreements that the trustee will enter into during the term of the trust, no questions arise here. The normal rules will apply to them.

Subjects of trust management

Participants in trust relations can be:

  • founder of the management;
  • beneficiary;
  • trustee.

The decision to establish trust management is made by the owner of the property. It is he who concludes the contract and establishes management. If the agreement was not concluded by the owner of the property, then it is void and does not entail legal consequences (resolution of the Federal Antimonopoly Service of the Volga Region in resolution dated March 9, 2004 No. A72-2890/03-G199). The founder of the management can be any individual, including an individual entrepreneur. And with regard to legal entities, legislators have established a number of restrictions. Property cannot be transferred into trust management either to a unitary enterprise, or to a state body, or to a local government body.

In many cases, trust relations involve a beneficiary (beneficiary), who does not become a party to the agreement. At the same time, this person has the right to demand from the manager execution in his favor and to defend this right in court if the trustee evades his duties (Article 430 of the Civil Code of the Russian Federation). Early modification or termination of the contract may also require his consent.

The beneficiary can be any individual or legal entity, including the founder, if he has established management in his favor.

Trustees can be a commercial organization or an individual entrepreneur, with the exception of cases of professional management of securities (Article 5 of the Federal Law of the Russian Federation “On the Securities Market”). If trust management is carried out on the grounds provided for by law, the manager may be a citizen who is not an entrepreneur, or non-profit organization, for example, a foundation other than an institution. An example of such management is the management of the property of a ward (Article 38 of the Civil Code of the Russian Federation) or the management inherited property(Article 1173 of the Civil Code of the Russian Federation).

The manager can be neither a founder nor a beneficiary. At the same time, he can occupy for his work one of the offices of the building transferred to management. How to format this correctly? The simplest way is to exclude from the property transferred to the trust the premises that the manager intends to use as an office. Instead, they should be leased to him under a separate agreement. For example, a building can be transferred to trust management with the exception of rooms No. 1-15 on its first floor.

In addition, the trustee is entitled to remuneration stipulated by the contract(Article 1023 of the Civil Code). The founder is also obliged to reimburse the manager for reasonable expenses incurred during the trust management of property (this rule also applies in the case of gratuitous property management). This should be done at the expense of income from the use of this property. The law does not determine how remuneration should be calculated, however, the arbitration court in a decision on a specific case indicated that it is unlawful to establish remuneration in a fixed amount that does not depend on the results of management (Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated August 9, 2005 No. A17-324 /1). In this regard, it seems to the author that it is most appropriate to set the management fee as a percentage of the income received.

Objects of trust management

Objects of trust management are organizations, property complexes, individual objects related to real estate, securities, rights certified by uncertificated securities, exclusive rights and other property. Other property should be understood as movable things and rights of claim or use.

It would seem that any movable property can be transferred to trust management. However, legislators prohibited “managing” money as an independent object, except in cases provided for by law. Such exceptional cases can be considered the management of funds by credit institutions on the basis of the Law of December 2, 1990 No. 395-1 “On Banks and Banking Activities”. It should be borne in mind that the legislation allows a credit institution to manage funds denominated in both national and foreign currencies.

By general rule, the right to trust management belongs to a credit organization (for example, a bank) that has a license to carry out relevant banking operations. And only in some exceptional cases Trust management of funds can be carried out by a non-credit organization that has received a license to conduct the specified activity in accordance with the established procedure.

When trusting funds for the purpose of investing in securities, the trustee must maintain the asset structure agreed upon by the parties throughout the entire term of the agreement. That is, to maintain the ratio between securities and funds of a given founder, as well as the ratio between different types of securities. Such information is reflected in the investment declaration.

The investment declaration is a mandatory part of the trust management agreement for funds and contains information about the directions and methods of investing these funds. The declaration also indicates information about the purpose and term of management (clause 7.3. Regulations on trust management of securities and funds for investing in securities, approved by Resolution of the Federal Commission for the Securities Market of October 17, 1997 No. 37).

By the way, funds can be transferred to management in another way: as part of other property, in particular, a property complex.

Only individually defined property can be in trust management. This means that each object must have characteristics unique to it. Accordingly, upon termination of the contract, it is the previously transferred property that is returned, and not its analogues. In this case, the terms of the agreement may provide that property that is still subject to acquisition or even creation, that is, property that does not yet exist at the time of conclusion of the agreement, will be transferred to management. The most common object of management is corporate securities - shares, especially voting ones, that is, including the powers to manage the affairs of the company that issued them - the issuer. The second most common object of management is real estate.

Trust management of issue-grade securities has some features that are determined by federal legislation (Part 3 of Article 1025 of the Civil Code of the Russian Federation, Law of April 22, 1996 “On the Securities Market” No. 39-FZ) and the regulations on trust management of securities and funds investing in securities, approved by Resolution of the Federal Commission for the Securities Market dated October 17, 1997 No. 37.

Only an appropriately licensed professional participant in the securities market can act as a manager under a trust management agreement for shares and bonds (Article 5, 39 of the Law of April 22, 1996 No. 39-FZ).

The trustee of shares and bonds exercises all the powers of their founder (owner), secured by the corresponding security. This means that he is not limited to just playing on stock quotes, he can use all the rights of a shareholder, including the right to vote at the general meeting. If trust management is associated solely with participation in the management of the company, a license for a professional participant in the securities market is not required (Article 5 of the Law “On the Securities Market”).

A trust management agreement cannot contain provisions on the transfer to management of only one or several powers of the owner of a security (for example, only the right to receive a dividend or only the right to vote at a general meeting of shareholders of the company). At the same time, the possibility of alienation of shares and bonds transferred for management may be limited or excluded by agreement.

In the interests of the founder (or beneficiary), rules have been established that the manager does not have the right to alienate the securities transferred to him for management into his own property or into the property of his founders. And also he cannot enter into transactions with them in which he simultaneously represents the interests of another person as his attorney, commission agent or agent. The manager is deprived of the right to exchange these securities for his own securities or the securities of his founders or clients (principals, principals, principals). In addition, he cannot alienate shares and bonds transferred to his management under compensated agreements that provide for a deferred or installment payment for more than 30 days, as well as transfer them for storage, indicating a third party as a recipient or manager. Finally, the manager cannot pledge the securities transferred to him for management to secure personal obligations, the obligations of his founders or other persons (clause 8.1 of FCSM Regulations No. 37).

If a trustee in the same transaction simultaneously represents the interests of two parties with whom he has concluded trust management agreements, then he is obliged to obtain the prior consent of the counterparties to carry out such a transaction. The securities that the manager acquired during the execution of the agreement also become the object of his trust management on the terms provided for in the original agreement with the founder.

Property trust management agreement

The property trust management agreement is concluded in writing (Clause 1, Article 1017 of the Civil Code of the Russian Federation).

The transfer of real estate into trust management requires state registration in the same manner as the transfer of ownership of this property (Clause 2 of Article 1017 of the Civil Code of the Russian Federation, Article 4 of the Law of July 21, 1997 No. 122-FZ “On State Registration rights to real estate and transactions with it"). It should be borne in mind that for third parties - tenants or organizations providing utility services - the agreement will come into force only from the date of such registration (clause 2 of Article 551 of the Civil Code of the Russian Federation). This situation must be taken into account. Until this date, all rights and obligations to third parties are borne by the owner himself, and not by the trustee.

Failure to comply with the requirements for registering the transfer of property entails the invalidity of the management agreement itself.

Is it necessary to register changes in the agreement regarding trust management of real estate? The real estate trust management agreement itself does not require state registration. Accordingly, if changes and additions to the agreement do not directly relate to real estate, but only to the procedure for managing it, then they also do not require registration.

A situation may arise when other legal acts establish Additional requirements to transfer certain types of property into trust management. Thus, when transferring securities and funds for investment in securities into trust management, an investment declaration is required, which is an integral part of the agreement (clause 7.2 of FCSM Regulation No. 37).

The parties must indicate in the property trust management agreement (Article 1016 of the Civil Code of the Russian Federation):

  • composition of property transferred to trust management;
  • the name of the legal entity or the name of the citizen in whose interests the property is managed (the founder of the management or the beneficiary);
  • the amount and form of remuneration to the manager, if the payment of remuneration is provided for in the contract;
  • contract time.

The composition of the property transferred to trust management must be clearly and in detail described. Failure to agree on this condition, as well as the conditions on the term and form of remuneration, will entail the recognition of such an agreement as not concluded. In this case, the founder may accuse the manager of unjust enrichment. But this is difficult to prove, so it is worth agreeing on a condition on the exact list of property being transferred, including the amount of money.

The term of management cannot exceed five years. Lawmakers have limited it to protect the owner. However, without a special statement from the parties, the agreement upon expiration of its validity period will be in force under the same conditions. By the way, a management agreement cannot be concluded to perform any one-time action, since “the nature of trust management presupposes the ongoing nature of the relationship” (Resolution of the Federal Antimonopoly Service of the Moscow District dated January 30, 2001 No. KG-A41/112-01).

Property transferred to trust management is separated from other property of the management founder, as well as from the property of the manager (Article 1018 of the Civil Code of the Russian Federation). These objects are reflected by the trustee on a separate balance sheet, for which he maintains independent accounting.

If a manager receives securities for trust management from different founders, then they can combine their blocks of shares for transfer to him (Article 1025 of the Civil Code of the Russian Federation).

Property encumbered with a pledge can be transferred to trust management, since the pledgor remains its owner and retains the ability to dispose of it. In addition, additional income from the profitable use of the property will help the owner fulfill his obligations to the mortgagee. Legislators have established that the manager must be warned about the pledge. Otherwise, he has the right to demand in court the termination of the contract and payment of remuneration for one year (clause 2 of Article 1019 of the Civil Code of the Russian Federation).

Rights and obligations of the parties under the property trust management agreement

In accordance with the agreement, the manager receives complete freedom in managing the property. If the founder wants to control the actions of the manager, then he must stipulate in detail the following points in the agreement:

  • manager's reporting;
  • the need to coordinate the conclusion of individual transactions with the transferred property.

That is, the founder of the management can limit the manager. For example, prohibit him from selling property without his consent.

If such restrictions are not established, then the transactions cannot be challenged in the future (FAS resolution Far Eastern District dated September 15, 2003 in case No. F03-A51/03-1/2252).

Property transferred to management must be separated. In this case, foreclosure on the debts of the founder is not allowed, with the exception of cases of bankruptcy (clause 2 of Article 1018 of the Civil Code of the Russian Federation). If the court finds the founder insolvent, then the trust management is terminated and the property goes into the bankruptcy estate.

But it would be a mistake to believe that separate property is absolutely inviolable. If during the validity of the trust management agreement debts have arisen regarding obligations in connection with property management, then they are repaid at the expense of it. If it is insufficient, the property of the manager himself is sold to offset the debts. If the founder’s property transferred under the trust management agreement and the manager’s property are not enough to pay off the debts, then foreclosure may be applied to the rest of the founder’s property. This means that an entrepreneur should be very careful in choosing a manager, because the profit and loss from management depends on his actions.

The manager is liable with his own property even if he did not notify the counterparty of the conclusion of the transaction as a manager, or carried out the transaction in excess of the powers granted to him or in violation of the restrictions established for him. In the same case, he compensates for any losses incurred by the founder.
The manager is obliged to take care of the interests of the founder and beneficiary. Otherwise, he compensates them for lost profits, and the founder also for losses caused by loss or damage to property.

Being a professional entrepreneur, the manager is responsible for both faulty and accidental losses. But he can escape liability if he proves that the losses arose as a result of force majeure circumstances (force majeure) or the founder. Force majeure is extraordinary and unavoidable circumstances under given conditions (clause 3 of Article 401 of the Civil Code). For example, the manager is responsible for losses caused to property as a result of a fire due to the fault of third parties, but if the property was destroyed as a result of a natural disaster, the manager is not responsible.

The founder may include in the contract a requirement that the manager must provide him with a deposit to ensure compensation for possible losses (Clause 4 of Article 1022 of the Civil Code of the Russian Federation).

It should be noted that the trustee often tries in the contract to leave only his responsibility for guilty behavior, excluding accidental damage or damage caused by third parties. This is unacceptable, since the norm of paragraph 1 of Article 1022 of the Civil Code of the Russian Federation is imperative, that is, it is not subject to change by agreement of the parties. Such a condition should alert the founder, as it indicates the manager’s lack of confidence in his competence.

A very controversial condition, often found in securities trust management agreements, releases the manager from liability due to the fact that the issuer has not fulfilled its obligations. After all, only force majeure relieves a manager from responsibility. Such force majeure circumstances do not include, for example, violations of obligations on the part of the debtor's counterparties, the lack of goods on the market necessary for performance, or the debtor's lack of necessary funds.

It is recommended to exclude these items, since illegal actions by the issuer are a fairly common occurrence. Consequently, the manager, by abdicating responsibility, significantly worsens the position of the founder compared to the legal one.

Termination of relations under a trust management agreement

The founder of the management may unilaterally repudiate the agreement if he pays the manager the remuneration stipulated by the agreement.

In addition, the bankruptcy of the founder terminates this agreement, since the property transferred for management must go to the bankruptcy estate. The death of the founder (while retaining the beneficiary) may not entail the end of the agreement, because his rights and obligations in this case will pass to the heirs. However, the death of the beneficiary or the liquidation of the beneficiary organization terminates the contract.

Recognition of the beneficiary citizen as incompetent, partially capable or missing, as well as the reorganization of the beneficiary company does not entail termination of the contract. Moreover, the agreement of the parties may provide for its preservation in the event of the death of the beneficiary (for the latter’s heirs).

As a general rule, a trust management agreement is terminated due to the unilateral refusal of the beneficiary to receive benefits, since the beneficiary independently disposes of the right received under the agreement concluded in his favor. However, the agreement may provide for other consequences in this case in the form of transfer of the rights of the beneficiary to the founder (clause 4 of article 430, clause 1 of article 1024 of the Civil Code of the Russian Federation).

Upon termination of the contract, the manager must return to the founder the property transferred for management (clause 3 of Article 1024 of the Civil Code of the Russian Federation). However, the agreement may also provide for another consequence, for example, the transfer of property to the beneficiary or its acquisition by the manager (under a purchase and sale agreement).

Taxation

VAT

If the trustee-entrepreneur is a VAT payer, then he acts in accordance with the general rules Tax Code: calculates tax and also pays it to the budget. “Input” VAT presented to him by suppliers is accepted for deduction in the usual manner. The regulations do not provide any special requirements for this situation. At the same time, in tax registers, documents and reports, after the name of the manager, a note “D.U.” is made.

Due to the fact that all the duties of the taxpayer are performed by the manager, the founder (beneficiary) does not pay VAT on income. According to the author, the transfer of property for management is not subject to VAT, since there is no sale (Article 146 of the Tax Code of the Russian Federation).

Transport tax, land tax, property tax for individuals

The transport transferred into trust management is the property of the founder. Accordingly, it is in his name that they are registered vehicles(Clause 12 of the Rules for Registration of Motor Vehicles, approved by Order of the Ministry of Internal Affairs of Russia dated January 27, 2003 No. 59). This means that the owner must calculate and pay taxes to the budget. Neither the trustee nor the beneficiary has obligations to the budget.

The issue of land tax and property tax for individuals was resolved in a similar manner. In accordance with Art. 388 of the Tax Code of the Russian Federation and Art. 1 of the Law of December 9, 1991 No. 2003-1 “On taxes on property of individuals”, these taxes must be paid by the owner.

Personal income tax

The income of an individual entrepreneur as a management founder (beneficiary) is taxed as follows.

Income from the use of property is subject to personal income tax (subclause 4, clause 1, article 208 of the Tax Code of the Russian Federation). The agreement should clearly indicate that the income of the founder (beneficiary) is the income received from the use of the property minus the manager’s remuneration. It is on this difference that tax should be paid.

Special rules for determining the tax base are established for income from transactions of purchase and sale of securities (Article 214.1 of the Tax Code of the Russian Federation). In particular, it directly states that the income of the founder (beneficiary) is reduced by the loss from the sale of securities, as well as by the manager’s remuneration (clauses 4-7 of Article 214.1 of the Tax Code of the Russian Federation).

At the same time, a feature of paying personal income tax on such transactions is that for each type of securities the tax base is determined separately (paragraph 4, paragraph 7, article 214.1 of the Tax Code of the Russian Federation). For example, if income is received from the sale of shares, and a loss is received from the sale of bonds, then this loss cannot reduce the income generated from the sale of shares. In this case, no object of taxation arises in relation to bonds, but the tax on transactions with shares is paid in in full.

Upon termination of the trust management agreement, the property can either be returned to the founder or transferred to another person. In the case of such a return, the founder does not generate income (loss), regardless of the occurrence of a positive (negative) difference between the value of the property at the time of entry into force and at the time of termination of the trust management agreement. In this case, he does not pay personal income tax.

The trustee acts as a tax agent, that is, he calculates, withholds and pays personal income tax to the budget for the founder of the management or the beneficiary (Article 226 of the Tax Code of the Russian Federation). In this case, a tax rate of 13 percent applies. If the manager did not withhold tax, the recipient of the income must independently declare and pay it (clause 4 of Article 228 of the Tax Code of the Russian Federation).

As for the entrepreneur-manager, he pays personal income tax on his income in the form of remuneration under the contract in the generally established manner.

Like any entrepreneur, he can claim a professional tax deduction in the amount of actually confirmed expenses associated with management, or 20 percent of the amount of income (clause 1 of Article 221 of the Tax Code of the Russian Federation).


How in process commercial activities, and in many other cases it may be necessary to draw up a property trust agreement. This agreement will be discussed in more detail in this article.

Trust management agreement - who can enter into it and for what purpose?

A property trust management agreement is drawn up in cases where the owner transfers his property to a person who will manage it in the interests of the owner or another entity. Typically, property is transferred to management for its more efficient use and maximum benefit. Sometimes an object comes into trust management if there are temporarily no persons obligated to take care of it (for example, until the heirs enter into inheritance rights, a notary has the right to conclude an agreement on trust management of property).

The parties to the agreement include:

  1. The founder of the management is the owner of the object.
  2. A trustee is an entity that assumes the responsibility for managing property.
  3. Beneficiary (optional figure) is the person in whose interests the object is used. In a situation where it is not specified in the contract, the profit from the use of the object is received by the founder of the management.

As a general rule, a trustee can be an individual with the status of an individual entrepreneur or a commercial organization. This rule is quite logical, since the manager’s activity is entrepreneurial. If a property trust management agreement is concluded on the grounds specified in the law, then there is no such restriction.

For those wishing to draw up a property trust management agreement, a sample of this agreement is available on our website.

What objects can be transferred to management?

Those objects from which profit can be made as a result of their management are transferred to trust management. Management involves a variety of legal and factual actions performed to make a profit (for example, renting out one part of the land plot and growing agricultural products on the other).

As a rule, a property trust management agreement is drawn up for the management of real estate (trade, office space etc.) or a property complex (for example, an enterprise). Among movable things, securities are most often transferred to management. Cash themselves cannot go into trust management, but if they are integral part enterprises, then go into management along with other components of this property complex.

Pledged items can be transferred to trust management, but this will not prevent the pledgee from collecting the amount of debt from such property. In this regard, the owner is obliged to notify the manager that an encumbrance in the form of a pledge has been imposed on the property coming to him. If he does not do this, then the manager has the right to terminate the property trust management agreement through the court and receive compensation equal to the annual remuneration.

How is a real estate trust management agreement drawn up? Contract form

Download the contract

The rules of the law determine that a property trust management agreement is drawn up strictly in in writing. If this condition is not met, the agreement between the owner and manager will be considered invalid.

The execution of a transaction has its own peculiarities in cases where real estate is transferred to management. The rules for drawing up a real estate management agreement are similar to the rules established for the case of its sale. In particular, a property trust management agreement should be registered with Rosreestr if the following goes into management:

  • living space;
  • company.

In other cases, when transferring to a real estate trustee, it is not the agreement itself that is registered, but only the fact of transfer of property.

Features of the property trust management agreement

This agreement has some similarities to other deals. Thus, within the framework of an agency agreement, the agent, like the trustee, carries out in the interests of the other party various actions(factual and legally significant). In a rental relationship, the tenant uses someone else's property, including for profit. The manager does the same.

However, the property trust management agreement has some features:

  1. Management is carried out during a specifically specified period.
  2. The manager carries out transactions with the property always from own name(as opposed to an agent who may act on behalf of the customer).
  3. The manager does not act in his own interests (unlike the tenant), but in the interests of the owner of the property or the beneficiary.
  4. Unlike an agent who carries out specific instructions from the customer, the trustee is free in his actions. He independently chooses the optimal methods of property management and implements them.
  5. An object entered into trust management must be separated from other property of the owner and manager. This object cannot be collected for the debts of its owner (except for mortgaged property and in case of bankruptcy).

Terms of the property trust management agreement

The Civil Code clearly lists the conditions that must be reflected in the text of the agreement. Without agreement between the parties, the property trust management agreement is simply considered unconcluded. Thus, the essential conditions include:

  • about objects transferred to the manager (complex property is transferred according to the inventory);
  • the subject in whose interests the agreement will be implemented;
  • the amount of remuneration that the owner will pay to the manager (if remuneration is not expected, then the text of the agreement should directly indicate that it is gratuitous);
  • duration of the agreement (maximum 5 years).

The remaining terms of the property trust management agreement are not mandatory. However, in order to avoid disagreements and ambiguities, it is worth reflecting in the agreement:

  • the presence of restrictions on certain transactions with property (for example, a ban on its alienation);
  • the ability to dispose of real estate;
  • frequency of presentation by managers of reports on their work;
  • the right of the manager to entrust the performance of certain actions to another entity;
  • causes early termination contracts;
  • the procedure for compensating the manager’s expenses incurred in fulfilling his obligations;
  • rights and obligations of the parties;
  • liability of the parties in case of violation of the contract.

Does the manager bear any responsibility?

Behind improper execution of his duties (in particular, poor quality property management), the manager bears property liability. In this case, he must compensate:

  • to the beneficiary - lost profits;
  • to the owner - damage caused by damage to property.

The manager is released from liability if he can prove that the damage was caused due to force majeure or as a result of the actions of the owner or beneficiary.

If the manager, when concluding transactions with third parties, goes beyond the limits of authority established for him, he will be responsible for such transactions independently. However, in this case, the founder of the management will need to prove that third parties knew (or should have known) that the manager was going beyond the established limits.

In other cases, expenses for transactions concluded by the manager in the process of managing the property are paid at the expense of such property. If the value of this property is not enough to cover all debts, the property of the manager is subject to recovery. If in this case it is not possible to completely repay the debts, the property belonging to the founder of the management is recovered.

In what cases does the contract end?

Upon expiration of the term of the property trust management agreement, the relationship between the parties is terminated if at least one of the parties declares this. In this case, the object must be returned to its owner. If neither the owner nor the manager wants to terminate cooperation, the contract is considered extended for the same period.

In addition, relations under the property trust management agreement are terminated:

  • if the beneficiary refuses the profit under the agreement or in the event of his death (unless the agreement stipulates that in this case the right to receive the profit passes to another person);
  • the occurrence of circumstances that prevent the manager from personally executing the contract, if in this case he (or the founder) intends to terminate cooperation;
  • the owner makes a decision to terminate the contract (in this situation, he is obliged to pay the manager the remuneration specified in the agreement);
  • bankruptcy of the management founder, who has the status of an individual entrepreneur;
  • in case of recognition of the manager as fully or partially incompetent, declaring him bankrupt, as well as in the event of death.

Sample template of property trust management agreement

TRUST MANAGEMENT AGREEMENT

g.___________ “__”________ ____ g.

Represented by ________________________, acting on the basis of _________________, referred to as “Party 1”, and _________________________ represented by ________________________, acting on the basis of _________________, referred to as “Party 2”, have entered into this agreement as follows:

1. THE SUBJECT OF THE AGREEMENT

1.1. Party 1 transfers property to Party 2 for trust management according to the list contained in clause 2 of the agreement for the period specified in section 4 of the agreement, and Party 2 undertakes to manage this property in accordance with the terms of the agreement.

1.2. The property transferred into trust management is the property of Party 1, as confirmed by ______________________.

2. OBJECT OF TRUST MANAGEMENT

The object of trust management is: ___________________________________________________________________.

3. RIGHTS AND OBLIGATIONS OF THE PARTIES

3.1. Party 2 is obliged:

  • carry out property management in the interests of Party 1;
  • other duties: ___________________________________________________________________.

3.2. Party 2 has the right:

  • independently decide on ways to implement management;
  • other rights: ______________________________________________________________.

3.3. Party 1 is obliged:

  • transfer the property for management to Party 2 under a transfer deed;
  • other duties: _____________________________________________________.

4. TERM OF THE CONTRACT

4.1. The agreement comes into force from the moment of its signing.

4.2. The contract is concluded for a period of up to ________.

5. RESPONSIBILITY OF THE PARTIES

The liability of the parties to the contract is determined current legislation.

6. FINAL PROVISIONS

The parties must immediately notify each other of a change of address, bank details, telephone numbers.