The right of trust management of property. Features of trust management of real estate

General rules
Article 1012 of the Civil Code of the Russian Federation establishes that under a property trust management agreement, one party (the management founder) transfers property to the other party (the trustee) for a certain period of time. trust management, and the other party undertakes to manage this property in the interests of the founder of the management or the person indicated by him (the beneficiary).

The transfer of property into trust management does not entail the transfer of ownership of it to the trustee.

The trustee, while managing property, has the right to perform any legal and actual actions in relation to this property in accordance with the agreement in the interests of the beneficiary (Clause 2 of Article 1012 of the Civil Code of the Russian Federation).

Restrictions on certain actions for trust management of property may be provided for by law or agreement.

The trustee makes transactions with the transferred property on his own behalf, indicating that he acts as such a manager (clause 3 of Article 1012 of the Civil Code of the Russian Federation). In practice, this requirement is considered to be met if, when performing actions that do not require written documentation:
the counterparty is informed about their commission by the trustee;
in written documents after the name (title) the note “D. U."

If there is no indication of acting as a trustee, then he is liable to third parties personally and only with the property that belongs to him.

By general rule the founder of the trust management is the owner of the property (Article 1014 of the Civil Code of the Russian Federation). The trustee can be an individual entrepreneur or an organization, with the exception of a unitary enterprise (Article 1015 of the Civil Code of the Russian Federation). Property cannot be transferred for trust management to a state body or local government body (Clause 2 of Article 1015 of the Civil Code of the Russian Federation).

The trustee cannot be a beneficiary under the trust management agreement.

Can be transferred to trust management:
enterprises and other property complexes;
individual objects related to real estate;
securities;
rights certified by undocumented securities;
exclusive rights, etc. (clause 1 of article 1013 of the Civil Code of the Russian Federation).

Property under economic control or operational management cannot be transferred to trust management (clause 3 of Article 1013 of the Civil Code of the Russian Federation).

Features of concluding a contract
A property trust management agreement can only be concluded in writing (Article 1017 of the Civil Code of the Russian Federation). If the object of trust management is real estate, then the agreement must be concluded in the form provided for the contract for the sale of real estate (clause 2 of Article 1017 of the Civil Code of the Russian Federation), including state registration(Article 4 Federal Law dated July 21, 1997 No. 122-FZ “On state registration of rights to real estate and transactions with it”).

Trust management agreement real estate is considered concluded not from the day it is signed by the parties, but after the transfer of property to the trustee, provided that such transfer is certified by state registration.

At the same time, for tenants, the real estate trust management agreement will come into force only from the date of state registration of such transfer (Clause 2 of Article 551 of the Civil Code of the Russian Federation). Before registering the transfer of property, all rights and obligations to third parties are borne by the owner, and not the trustee.

It should be noted that it is not the trust management agreement itself that is subject to state registration, but rather the transfer of property into trust management. Thus, if changes and additions to the contract relate not directly to real estate, but to the procedure for managing it, then there is no reason to register these documents.

The essential terms of the property trust management agreement are (Article 1016 of the Civil Code of the Russian Federation):
composition of the property transferred to trust management;
the name of the legal entity or the name of the citizen in whose interests the management is carried out (the founder of the management or the beneficiary);
the amount and form of remuneration to the manager, if the agreement provides for the payment of remuneration;
contract time.

In the absence of one of the above conditions, the contract is considered not concluded. For example, the absence of data in the contract that would allow one to definitely establish the property to be transferred to the trustee is critical.

A property trust management agreement is concluded for a period not exceeding five years. For individual species of property transferred into trust management, the law may establish other deadlines for which an agreement can be concluded (clause 2 of Article 1016 of the Civil Code of the Russian Federation).

The time limit is established in order to protect the rights of the property owner. However, if the parties do not declare the termination of the contract at the end of its validity period, then it is considered extended for the same period and on the same conditions as provided for in the contract.

The peculiarity of trust management is that this agreement is not concluded for one-time transactions with property, but for managing it for a long time. By the way, this is confirmed by judicial practice. That is, a management agreement cannot be concluded to perform any one-time action, since trust management assumes the ongoing nature of the relationship.

Property transferred to trust management must be separated from the property of both the manager and the founder of the management (Article 1018 of the Civil Code of the Russian Federation). That is, the objects are reflected by the trustee on a separate balance sheet and independent accounting is maintained for them.

However, if securities from different founders are transferred to trust management, then they can combine their stakes 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 (clause 2 of Article 1019 of the Civil Code of the Russian Federation), and the pledgor remains its owner and retains the ability to dispose of it. This is also beneficial for the mortgagee, since additional income from competent property management can help the owner fulfill his obligations to him. At the same time, the manager must be warned about the pledge, otherwise he has the right to demand:
termination of the contract;
payment of remuneration for one year.

Rights and obligations of the parties
The trustee has the right to perform any legal and actual actions in relation to this property in accordance with the agreement in the interests of the beneficiary. Restrictions may be provided for by law or agreement (clause 2 of Article 1012 of the Civil Code of the Russian Federation).

In the interests of the property owner, the contract should stipulate aspects related to the reporting of the trustee, as well as the need to coordinate the conclusion of individual transactions with the property transferred to management.

In this way you can protect yourself, for example, from unauthorized sale of property. That is, the founder of the management can limit the actions of the trustee, for example, prohibit him from selling property without his consent.

The founder's property transferred under a trust management agreement is not allowed to be foreclosed on the founder's debts, except in cases of bankruptcy (Clause 2 of Article 1018 of the Civil Code of the Russian Federation). If, during the validity of the trust management agreement, debts arose under obligations in connection with the management of property, then they are repaid at the expense of this property.

If the property of the founder transferred under the trust management agreement and the property of the manager are insufficient, debt collection may also be applied to the property of the founder of the management that was not transferred to trust management.

Obviously, the trustee must be chosen carefully, otherwise you may not only not make a profit, but also lose what you have.

The trustee is also liable for his own property if he:
did not notify the counterparty of the conclusion of the transaction as a manager;
made a transaction in excess of the powers granted to him;
made a transaction in violation of the restrictions established for him.

He is also obliged to compensate for any losses incurred by the founder (Article 1022 of the Civil Code of the Russian Federation).

The trustee must also take care of the interests of the founder and beneficiary, and failure to comply with this requirement entails the liability of the trustee:
the beneficiary is compensated for lost profits;
to the founder - losses caused by loss or damage to property, plus lost profits (clause 1 of Article 1022 of the Civil Code of the Russian Federation).

The trustee may be released from liability for losses caused to the beneficiary and the founder of the management as a result of force majeure or the action of the beneficiary or the founder of the management (clause 1 of Article 1022 of the Civil Code of the Russian Federation). That is, if a fire occurs due to the fault of third parties, then the trustee is responsible, but if the property is destroyed as a result, for example, natural disaster, then the manager is not responsible.

The property trust management agreement may provide for the provision by the trustee of a collateral to ensure compensation for losses that may be caused to the management founder or beneficiary improper execution trust management agreement (clause 4 of article 1022 of the Civil Code of the Russian Federation).

If securities are transferred to trust management, then you should pay attention to the fact that failure by the issuer to fulfill its obligations does not exempt from liability. Reason: the trustee is released from liability only by force majeure, the circumstances of which do not include, in particular, violations of obligations on the part of counterparties. With that said, attempts to include such terms in the contract should be discouraged.

The trustee has the right to remuneration provided for in the property trust management agreement, as well as to reimbursement of the necessary expenses incurred by him during the trust management of property, at the expense of income from the use of this property (Article 1023 of the Civil Code of the Russian Federation).

At the same time, the trustee must document the fact of incurring expenses related to the trust management of property, otherwise he may be denied compensation for the necessary expenses.

Termination of the contract
A property trust management agreement may be terminated due to (Article 1024 of the Civil Code of the Russian Federation):
death of a citizen who is a beneficiary, or liquidation of a legal entity - beneficiary, unless otherwise provided by the agreement;
refusal of the beneficiary to receive benefits under the agreement, unless otherwise provided by the agreement;
death of a citizen who is a trustee, recognition of him as incapacitated, partially capable or missing, as well as recognition of an individual entrepreneur as insolvent (bankrupt);
refusal of the trustee or founder of the management to carry out trust management due to the inability of the trustee to personally carry out trust management of the property;
refusal of the management founder from the agreement for reasons other than those specified in paragraph 5 of paragraph 1 of Article 1024 of the Civil Code of the Russian Federation, subject to payment to the trustee of the remuneration stipulated by the agreement;
recognition as insolvent (bankrupt) of a citizen-entrepreneur who is the founder of the management. If one party refuses a property trust management agreement, the other party must be notified of this three months before termination of the agreement, unless the agreement provides for a different notice period.

The extension of the agreement on the same conditions and for the same period may be refused if the founder of the trust management sent a letter within the prescribed period of termination of the trust management agreement and the obligation to return the property.

Upon termination of the trust management agreement, the property under trust management is transferred to the management founder, unless otherwise provided by the agreement.

IMPORTANT:

If a business entity owns property, the management of which requires special knowledge and qualifications, then it seems advisable to transfer the property to trust management by drawing up a special agreement for this purpose.

Failure to comply with the form of the property trust management agreement or the requirement to register the transfer of real estate into trust management entails the invalidity of the agreement (clause 3 of Article 1017 of the Civil Code of the Russian Federation).

The trustee has the right to perform any legal and actual actions in relation to the property in accordance with the agreement in the interests of the beneficiary. Restrictions may be provided for by law or agreement (clause 2 of Article 1012 of the Civil Code of the Russian Federation).

The trustee must document the fact of incurring expenses related to the trust management of property, otherwise he may be denied compensation for the necessary expenses.

Margarita POLUBOYARINOVA, expert at “Your Reliable Partner” LLC

Under the trust management agreement one party - the founder of the management transfers to the other party - the trustee for a certain period of time property for trust management, and the other party undertakes to manage this property in the interests of the founder of the management or the person indicated by him - the beneficiary (Article 1012 of the Civil Code).

The parties to the trust management agreement are founder of the management And trustee. The founder of the management, being the owner of the property, transfers it to the manager, and he undertakes to manage this property in the interests of the founder. If property management is not carried out in the interests of the founder of management or not only in his interests, another subject is included in the legal relationship - the beneficiary, who has an independent right of claim against the trustee. In these cases, the trust management agreement acquires the features of an agreement concluded in favor of a third party (Article 430 of the Civil Code).

Describing the trust management of property, the Civil Code names any legal and actual actions of the manager in relation to the transferred property (clause 2 of Article 1012), indicates the ability of the manager to treat this property as his own (clause 1 of Article 1020). The limits of managing someone else's property are established by law, as well as by the parties to the contract on the basis of free will.

The transfer of property is not included in the content of the trust management obligation, but is one of the elements of the actual composition necessary for the occurrence of the obligation. If real estate is transferred to trust management, then state registration of such a transfer is required to conclude an agreement (clause 2 of Article 1017 of the Civil Code). This allows us to speak of a real estate trust management agreement as a formal agreement.

The trust management agreement is personal-fiduciary, or fiduciary character, which is reflected in its name, in the name of the main debtor, as well as in the signs of his behavior. In entrepreneurial relations, without trust in the manager, based on knowledge about his professional and personal qualities, the owner is unlikely to enter into such a relationship with him. This is due to the risk of ineffective management or loss (full or partial) of property, which the owner bears when transferring the property to management. In the non-commercial sphere (for example, in the trust management of the property of a ward, in patronage, in the management of inheritance), the relationship of kinship or friendship between the owner and the manager is important. The Civil Code emphasizes the personal nature of the obligations of the trustee to the founder (clause 1, article 1021), and establishes the right of either party to refuse the agreement due to the impossibility of personal execution of the agreement by the manager (clause 1, article 1024).

In the Civil Code norms, the trust management agreement is modeled as a paid one. By virtue of Art. 1016 of the Civil Code, if there are no terms in the contract regarding remuneration to the manager, the contract will be considered not concluded. At the same time, the Civil Code allows for the gratuitous nature of the trust management agreement (clause 1 of Article 1016). These are those cases when the parties to the agreement are citizens who do not pursue entrepreneurial goals (managing the property of the ward, etc.).

Trust management of property and proprietary rights to property.

The subject of limited property rights (unitary enterprise, institution) is endowed by the owner with the rights of ownership, use and disposal of the owner’s property.

It is necessary to distinguish between trust management of property and property rights to property. A direct legal connection arises between the subject of property law and the property assigned to him. The subject of property rights is vested with the powers of the owner within the limits determined by law (Articles 294, 296 of the Civil Code). The trustee is the actual owner of the founder's property and does not have the powers of the owner, but the right to exercise these powers in relation to the property on his own behalf * (222). The manager receives this right by virtue of the concluded agreement and exercises it as part of the performance of his primary responsibility for property management. By its nature, this right is obligatory. The limits of the manager’s powers are determined not only by law, but also by agreement (clause 2 of article 1012, clause 1 of article 1020 of the Civil Code). In addition, the subject of property law exercises the powers of the owner in his own interest, and the trustee always in the interests of another person (Article 1012 of the Civil Code).

Legal qualification of the agreement: real- is considered concluded at the moment of delivery of the thing, consensual when real estate is transferred to trust management, such transfer in accordance with clause 2 of Art. 1017 of the Civil Code of the Russian Federation must be carried out in the form provided for the contract for the sale of real estate, compensated, gratuitous, bilaterally binding- responsibilities are assigned not only to the trustee, but also to the founder of the management, who must pay the trustee the remuneration stipulated by the agreement and reimburse the costs of running the management.

Agreements in which the founders of management appoint beneficiaries are classified as contracts in favor of a third party.

Trust management of property can arise not only on the basis of an agreement, but also by force of law (trust management of the property of a ward, missing person, etc.). The basis of such a legal relationship (by force of law) is not just an agreement, but a complex legal structure - the decision of the guardianship and trusteeship authority to establish guardianship and the agreement.

Parties to the agreement : trust founder And trustee.

Subject composition of the parties: the founder of trust management is the owner of the property, and in cases provided for by law, other persons who are not owners of the property (guardianship and trusteeship authority, that is, other entities by law). Trustee - commercial organization(except for a unitary enterprise) or an individual entrepreneur. In cases where trust management of property is carried out on the grounds provided for by law, the trustee may be a citizen who is not an entrepreneur, or non-profit organization, with the exception of the institution.

If the founder of the management indicates in the agreement, instead of himself, another person in whose interests the trustee should act, then, along with the two named parties to the agreement, a third person - the beneficiary - also becomes a beneficiary.

The subject of the trust management agreement is the performance by the manager of legal and actual actions in the interests of the management founder (beneficiary);

Essential terms of the agreement.

· Composition of property transferred to trust management. The objects of trust management are:

o enterprises and other property complexes;

o individual objects related to real estate;

o securities, rights and other property.

The law does not contain a direct prohibition on the transfer into trust of things defined by generic characteristics. In this case, the transfer to trust management of only Money allowed only if the trustee is a credit institution or other entity which has received permission (license) to carry out trust management of funds of citizens and legal entities (clause 2 of article 1013 of the Civil Code of the Russian Federation).

When transferring securities into trust management, the owner does not lose ownership of them; it is not the right that is transferred to management, but the thing.

If property is transferred to trust management, then it must be separated from other property of the founder of the management and the property of the trustee himself, and a separate account is opened for settlements on it (Article 1018 of the Civil Code of the Russian Federation). It is not allowed to foreclose on this property for the debts of the founder. In this case, the trust management agreement is terminated and the property is included in the bankruptcy estate.

· The name of the legal entity or the name of the citizen in whose interests the property is managed (the management founder or beneficiary).

· Amount and form of remuneration to the manager (if the contract is paid). Typically, trust management agreements are compensated. Conditions on the form and timing of payment of remuneration to the trustee must be provided for in the agreement. If there is no provision for remuneration in the agreement, it is considered gratuitous, for example, when the guardianship and trusteeship body concludes an agreement on trust management of the ward’s property with his relative.

· Term validity of the contract, which cannot exceed five years, unless other deadlines are established by law. If, after the expiration of the contract, there is no statement from at least one of the parties about its termination, then the contract is considered extended for the same period and on the same conditions as were provided for in the contract (Clause 2 of Article 1016 of the Civil Code of the Russian Federation). Thus, the ongoing nature of the relationship under the contract makes it possible to extend it on the same terms.

Contract form : written(Article 1017 of the Civil Code of the Russian Federation). A real estate trust management agreement must be concluded in the form of a single document signed by the parties, with mandatory state registration. The transfer of property is carried out according to a transfer deed. If we're talking about on the transfer of the enterprise, then this act is accompanied by: a property inventory act, a balance sheet, an independent auditor’s conclusion on the composition and value of the enterprise, as well as a list of all debts (liabilities) included in the enterprise, indicating the creditors, their characteristics, size and duration requirements. The manager always performs the corresponding action on his own behalf, but at the same time indicates in whose capacity he is acting. This is achieved through relevant information from third parties in oral transactions or marks “DU” (Clause 3 of Article 1012 of the Civil Code of the Russian Federation).

The rights and obligations of the parties must be clearly regulated in the contract.

The trustee is obliged:

· exercise, within the limits provided for by law and (or) agreement, the powers of the owner in relation to property transferred to trust management (Article 1020 of the Civil Code of the Russian Federation). The law requires him to carry out trust management of property personally. The manager can entrust these actions to another person in the following cases (Article 1021 of the Civil Code of the Russian Federation):

a) if authorized to do so by agreement, or has received the written consent of the founder of the management;

b) if forced due to circumstances to ensure the interests of the founder or beneficiary and does not have the opportunity to receive instructions from the founder of management within a reasonable time;

· provide the management founder and beneficiary with a report on its activities within the time limits established by the agreement (clause 4 of Article 1020 of the Civil Code of the Russian Federation);

· termination of the agreement entails the obligation of the trustee to return to the founder of the management all property under trust management, unless otherwise provided by the agreement.

The trustee has the right:

· exercise the owner’s powers over the property transferred to him within the limits established by law and (or) agreement;

· apply all civil law methods to protect property transferred to trust management (clause 3 of article 1020 of the Civil Code of the Russian Federation). To protect the rights to property under management, the trustee is endowed with the legal right to bring vindication and negatory claims (Articles 301, 302, 304, 305 of the Civil Code of the Russian Federation, by virtue of clause 3 of Article 1020 of the Civil Code of the Russian Federation);

· demand payment of remuneration, if provided for by the contract, as well as reimbursement of necessary expenses incurred during the trust management of property at the expense of income from the use of this property (Article 1023 of the Civil Code of the Russian Federation);

· demand from the founder of management after the conclusion of the agreement the actual transfer of property to him.

Rights of the management founder:

· has the right to demand from the trustee the proper execution of the contract;

· has the right to demand from the trustee a report on his activities in property management;

· has the right to demand termination of the contract if it is impossible for the trustee to implement it.

Responsibilities of the management founder - a third party:

· payment of remuneration;

· reimbursement of expenses from income received from the use of property.

The primary responsibility of the trustee is to third parties (Article 1022 of the Civil Code of the Russian Federation):

· for obligations to third parties arising in connection with the implementation of trust management of property, losses are repaid from the property under trust management, if there is a shortage of it - from the personal property of the manager, and only if there is a shortage - from the property of the founder of the management not transferred to the trust control. Further, the founder of the management has the right to demand, by way of recourse, compensation for losses incurred by him from the actions of the trustee. E. Sukhanov defined this complex structure of liability as two-stage subsidiary liability;

· if, when making transactions with third parties, the trustee or the attorney appointed by him goes beyond the powers granted to the trustee, or acts in violation of established restrictions, then the trustee with his own property bears responsibility for the obligations arising in this case, unless third parties prove that they did not know and could not know about the violations committed by the trustee or the attorney appointed by him.

The property trust management agreement is terminated (Article 1024 of the Civil Code of the Russian Federation) due to :

· proper fulfillment of the obligation;

· death of a citizen who is a beneficiary, or liquidation of a legal entity - beneficiary;

· death of the trustee, recognition of him as incompetent, partially capable, or missing;

· recognition of a trustee who is an individual entrepreneur as insolvent (bankrupt);

· recognition of the founder of the management, who is an individual entrepreneur, as insolvent (bankrupt);

· the impossibility for the trustee to personally carry out trust management of the property, and the trustee is obliged to notify the founder of the management about this, as a general rule, three months before termination of the agreement.

Commercial concession agreement

The term “commercial concession” is essentially synonymous with the term “franchising”, which has entered international practice, which means the voluntary cooperation of two or more entrepreneurial partners for the purpose of sharing means of individualization (company name, commercial designation, trademark or service mark) belonging to one of them. In this case, the party that has granted the right to use means of individualization simultaneously provides the user with protected commercial information (know-how) and provides ongoing consulting assistance in organizing a business. (The most famous example is the opening of the McDonald's restaurant chain around the world.)

Under a commercial concession agreement one party (the copyright holder) undertakes to provide the other party (the user), for a fee for a period or without specifying a period, the right to use in the user’s business activities a set of exclusive rights belonging to the copyright holder, including the right to the company name and (or) commercial designation of the copyright holder, to the protected commercial information, as well as other objects of exclusive rights provided for in the contract - trademark, service mark, etc. (Clause 1 of Article 1027 of the Civil Code of the Russian Federation).

Commercial concession agreement - consensual, compensated, bilaterally binding. The parties to the contract are copyright holder(a person granting the right to use his means of individualization and know-how) and user(the person to whom these rights are granted). They can be commercial organizations and citizens registered as individual entrepreneurs (clause 3 of Article 1027 of the Civil Code of the Russian Federation).

Subject A commercial concession agreement is a set of exclusive rights to a company name and (or) commercial designation, a trademark and commercial information, including experience in organizing relevant business activities. From the definition of the contract it follows that the subject of the contract may include exclusive rights to other objects of intellectual property (for example, an industrial design).

In the subject of a commercial concession agreement, special emphasis should be placed on commercial designations - for example, the name of a legal entity, although unregistered, but widely known, which is protected without special registration (for example, Coca-Cola).

A commercial concession agreement must be concluded in simple written form, non-compliance with which entails its invalidity (clause 1 of Article 1028 of the Civil Code of the Russian Federation). This agreement is subject to state registration by the body that registers the legal entity or individual entrepreneur acting under the agreement as the copyright holder. The need for such registration is due to the fact that by transferring the use of rights that individualize the activity, the copyright holder also limits his own rights, and such a limitation must be public.

State registration of legal entities is carried out by the relevant bodies of local administration (a special Registration Chamber has been created in Moscow). In the future, it is planned to concentrate this function in the justice authorities.

When concluding a commercial concession agreement, exclusive rights to certain objects of intellectual property are transferred, the transfer of rights to which is subject to special registration at the Patent Office (right to a trademark, invention, industrial design).

Therefore, if the complex of exclusive rights includes the rights to specified objects, then, in addition to state registration, registration with the Patent Office is required. Failure to comply with the requirement for such registration also leads to the invalidity of the contract.

A mandatory condition of a commercial concession agreement is the remuneration paid by the user to the copyright holder. Article 1030 of the Civil Code of the Russian Federation contains an approximate list of forms of such payments, among which are mentioned fixed one-time or periodic payments, deductions from revenue, markups on the wholesale price of goods transferred by the copyright holder for resale. However, in practice, the copyright holder's remuneration usually consists of two parts: a fee for joining the copyright holder's corporate network and subsequent periodic payments, determined in fixed amounts or as a percentage of revenue.

Situations are possible when the copyright holder changes his company name or commercial designation to one that is more consistent with his image. Such a change to a certain extent affects the user, therefore the law establishes that the commercial concession agreement also applies to the new brand name or commercial designation of the copyright holder. If the user does not want to exercise his right, he may demand termination of the contract and compensation for losses or a proportionate reduction in the remuneration due to the copyright holder.

Commercial concession agreements are characterized by the presence of conditions, the implementation of which may lead to restriction of competition in the market. In particular, we are talking about assigning a certain territory to the user, in which neither other users nor the copyright holder himself can act, as well as a prohibition for the user to enter into competition, either independently or by obtaining similar rights from the copyright holder’s competitors (such a ban may valid for a certain period and after the expiration of the contract).

Realizing that these provisions may contradict antimonopoly legislation, the Civil Code of the Russian Federation makes it possible to challenge these conditions and invalidate them at the request of the antimonopoly authority (State Committee on Antimonopoly Policy) or another interested party, if these conditions, taking into account the state of the relevant market and the economic situation of the parties, contradict antimonopoly legislation (clause 1 of article 1033 of the Civil Code of the Russian Federation). The decision to challenge the restrictive terms of the contract should be made both after studying the general situation and clarifying the position that the parties to the contract occupy in this market. At the same time, in Art. 1033 of the Civil Code of the Russian Federation mentions two conditions limiting the rights of the parties, which in any case must be recognized as void. Such restrictions apply to:

a) the right of the copyright holder to determine the selling price of goods by the user or the price of work (services) performed (rendered) by the user, or to set an upper or lower limit for these prices;

b) the user’s obligation to sell goods, perform work or provide services exclusively to a certain category of buyers (customers) or exclusively to buyers (customers) located (place of residence) in the territory specified in the contract.

A commercial concession agreement can be concluded for a specific period or without specifying a period. It follows from this that the deadline is not essential condition agreement.

The Civil Code of the Russian Federation provides for a number of obligations of the copyright holder, which must be included in the commercial concession agreement. So, in accordance with paragraph 1 of Art. 1031 of the Civil Code of the Russian Federation, the copyright holder is obliged to:

transfer to the user technical and commercial documentation and provide other information necessary for the user to exercise the rights granted to him under the commercial concession agreement, as well as instruct the user and his employees on issues related to the exercise of these rights;

issue the user the licenses provided for in the contract, ensuring their execution in the prescribed manner.

A number of obligations of the copyright holder are optional and can be included in the contract at the discretion of the parties. These, in particular, include the responsibilities of the copyright holder:

ensure registration of the commercial concession agreement (clause 2 of Article 1028 of the Civil Code of the Russian Federation);

provide the user with constant technical and advisory assistance, including assistance in training and advanced training of employees (clause 2 of article 1031 of the Civil Code of the Russian Federation);

control the quality of goods (work, services) produced (performed, provided) by the user on the basis of a commercial concession agreement (clause 2 of Article 1031 of the Civil Code of the Russian Federation).

A commercial concession agreement may provide for the right of the user to allow other persons to use the complex of exclusive rights granted to him or part of this complex on the terms of the subconcession agreed upon by him with the copyright holder or specified in the commercial concession agreement. The agreement may provide for the user's obligation to provide, within a certain period, to a certain number of persons the right to use the specified rights on the terms of a subconcession (Clause 1 of Article 1029 of the Civil Code of the Russian Federation).

Thus, according to the agreement subconcessions the user acts as a secondary copyright holder, and his counterparty acts as a secondary user. With the help of a subconcession, the original copyright holder expands its ability to influence the market for its goods or services and is therefore interested in issuing them. In this regard, the law allows for the possibility of replacing the secondary copyright holder (i.e. the user under the main commercial concession agreement) with the primary copyright holder in the event of early termination of a concession agreement concluded for a period, or termination of such an agreement concluded without specifying a period (clause 3 of Art. 1029 of the Civil Code of the Russian Federation).

If a commercial concession agreement was concluded for a certain period, then it is valid during this period, and if concluded without specifying a period, until termination in the manner prescribed by law. However, even before the expiration of the contract, it can be terminated or amended.

The agreement is amended by agreement of the parties. It can also be changed in court at the request of one of the parties if significant violation contract by the other party. Finally, the contract can be amended if there is a significant change in the circumstances from which the parties proceeded when concluding the contract. Moreover, any changes to the commercial concession agreement are subject to mandatory state registration in the same manner as its conclusion (Article 1036 of the Civil Code of the Russian Federation), and only from the moment of registration the changes become valid for third parties.

As for the termination of the contract, in addition to the general grounds for termination of obligations, it is also terminated in the following cases:

a) unilateral refusal of a contract concluded without specifying a period. Each of the parties to the agreement has the right to withdraw from the agreement at any time, notifying the other party six months in advance, unless the agreement provides for a longer period (clause 1 of Article 1037 of the Civil Code of the Russian Federation);

b) the user’s unilateral refusal of the contract in the event of a change in the company name or commercial designation of the copyright holder (Article 1039 of the Civil Code of the Russian Federation);

c) termination of the rights to a company name and commercial designation belonging to the copyright holder without replacing them with new similar rights (clause 3 of Article 1037 of the Civil Code of the Russian Federation);

d) death of the copyright holder, if the heir does not register as an individual entrepreneur within six months from the date of opening of the inheritance (clause 2 of Article 1038 of the Civil Code of the Russian Federation);

e) declaring the copyright holder or user insolvent (bankrupt) in the prescribed manner (clause 4 of Article 1037 of the Civil Code of the Russian Federation).

Termination of a commercial concession agreement is subject to state registration with the same authorities that register the conclusion of this agreement. Moreover, if any change to the contract is registered, then the termination of the contract is registered only if it occurred ahead of schedule (in cases where the contract was concluded for a certain period) or if the contract was concluded for an indefinite period.

During the term of the commercial concession agreement, the copyright holder may assign one or all of the exclusive rights belonging to him to a third party. In itself, such a transfer of rights is not a basis for changing or terminating the contract (Clause 1 of Article 1038 of the Civil Code of the Russian Federation). In this case, the new copyright holder simply acquires all the rights and obligations arising from the previously concluded commercial concession agreement.

In the event of termination of one of the exclusive rights included in the complex of exclusive rights transferred under a commercial concession agreement, the agreement continues to be in force with the exception of those provisions that relate to the terminated right.

As an exception to the general rule, the liability of the parties under a commercial concession agreement occurs regardless of fault. In this case, the copyright holder is responsible not only to the user for improper performance of the contract, but also to third parties for the inadequate quality of goods (work, services). This liability can be either subsidiary (additional) or joint.

In particular, the copyright holder bears judicial liability for the requirements presented to the user regarding the non-conformity of the quality of goods (work, services) sold, performed, provided by the user under a commercial concession agreement (Part 1 of Article 1034 of the Civil Code of the Russian Federation). If the requirements are presented to the user as a manufacturer of products (goods) of the copyright holder, then the latter is liable jointly with the user. At the same time, the liability of the copyright holder is limited to the quality condition and does not extend to the user’s violation of other terms of contracts concluded with third parties (quantity, terms, etc.).

In accordance with paragraph 1 of Art. 1012 of the Civil Code, under a property trust management agreement, one party (the management founder) transfers property to trust management for a certain period of time to the other party (the trustee), and the other party undertakes to manage this property in the interests of the management founder or the person specified by him (the beneficiary).

The property trust management agreement is new to Russian civil legislation. He formalizes relations for managing someone else's property in the interests of its owner (or another authorized person - a creditor in an obligation, a subject of exclusive right) or another (third) person specified by him. Such management can be carried out at the will of the owner or authorized person, due, for example, to his inexperience or inability to use certain types of his property himself. In some cases, the manager must replace the owner (or other authorized person) by direct instructions of the law in connection with special circumstances: the establishment of guardianship, trusteeship or patronage (Articles 38, 41 of the Civil Code), recognition of a citizen as missing (Article 43 of the Civil Code) or his death (when the executor of the will, the executor, disposes of the inherited property until the heirs accept the inheritance).

In contrast to Anglo-American law, which adheres to the concept of “trust property,” Russian legislation directly states that the transfer of property into trust management does not entail the transfer of ownership of it to the trustee (clause 4 of article 209, paragraph 2 of clause 1, Article 1012 of the Civil Code). The relations arising as a result of the conclusion of the contract in question are obligatory, not proprietary.

By its legal nature, a property trust management agreement is an agreement for the provision of services. Its peculiarity lies in the fact that, by virtue of this agreement, the manager performs in the interests of the counterparty or beneficiary a complex of both legal and actual actions that constitute a single whole, and therefore its subject, unlike some other agreements, cannot be considered as simple sum legal and factual services.

This agreement is real. It comes into force from the moment the property is transferred to the manager for trust management, and when real estate is transferred to the management - from the moment of its state registration. It can be both paid and gratuitous, and is bilateral in nature.

As a general rule, the founder of trust management must be the owner of the property - a citizen, a legal entity, a public legal entity, as well as subjects of certain obligatory and exclusive rights, in particular depositors of banks and other credit institutions, authorized under “book-entry securities”, authors and patent holders .

In cases directly provided for by law (clause 1 of Article 1026 of the Civil Code), the founder of trust management may not be the owner (copyright holder), but another person, for example, a guardianship and trusteeship body (clause 1 of Article 38, clause 1 of Article 43 GK).

Only a professional participant in property turnover - an individual entrepreneur or a commercial organization - can act as a trustee, since we are talking about the use of someone else's property in order to generate income for its owner or the beneficiary indicated by him, i.e. essentially about entrepreneurial activity.

In cases where trust management of property is carried out on the grounds provided for by law, a citizen who is not an individual entrepreneur (a guardian of a minor or an executor appointed by the testator, etc.) or a non-profit organization (foundation, etc.) can act as a trustee. , with the exception of the institution.

In many cases, trust management relationships involve a beneficiary who is not a party to the agreement. In relation to such situations, a trust management agreement is an agreement concluded in favor of a third party (clause 1 of Article 430 of the Civil Code). The founder himself can act as a beneficiary, establishing trust management in his favor.

However, the trustee cannot become a beneficiary (clause 3 of Article 1015 of the Civil Code), since this contradicts the essence of this type of agreement.

Both all the property of the founder and his certain part(individual things or rights). According to paragraph 1 of Art. 1013 of the Civil Code, the objects of such management are:
real estate, including enterprises and other property complexes, as well as individual real estate objects;
securities;
rights certified by uncertificated securities;
exclusive rights;
other property (movable things and rights to claim or use someone else’s property).

Money cannot be an independent object of trust management, except in cases provided for by law (clause 2 of Article 1013 of the Civil Code).

Under penalty of nullity, a property trust management agreement must be concluded in writing (clauses 1, 3 of Article 1017 of the Civil Code). The transfer of real estate into trust management is subject to state registration in the same manner as the transfer of ownership of this property (clause 2 of Article 1017 of the Civil Code).

The property trust management agreement is concluded for a period not exceeding five years. For certain types of property transferred into trust management, other deadlines are established.

The subject of the trust management agreement is the performance by the manager of any legal and actual actions in the interests of the beneficiary (clause 2 of Article 1012 of the Civil Code), since the full range of these actions is usually impossible to determine at the time of establishment of management. At the same time, the law or agreement provides for restrictions in relation to certain actions for trust management of property, for example, in relation to transactions for the alienation of property transferred to management.

As a general rule, the trustee is obliged to manage the founder’s property personally (clause 1 of Article 1021 of the Civil Code). The manager has the right to entrust another person to perform on his behalf the actions necessary to manage the property, if he is authorized to do so by agreement or has received the consent of the founder in writing, or he is forced to do this due to circumstances to ensure the interests of the management founder or beneficiary, without being able to obtain instructions of the founder within a reasonable time. In the case of transfer of trust management of property, the manager is responsible for the actions of the attorney he has chosen as for his own (Clause 2 of Article 1021 of the Civil Code).

The main responsibilities of the trustee also include submitting reports on its activities to the founder and beneficiary within the time frame and in the manner established by the agreement (clause 4 of Article 1020 of the Civil Code).

The trustee has the right to remuneration, if it is provided for in the contract, as well as to compensation for the necessary expenses incurred by him in managing the property. The peculiarity of the agreement in question is that payment of remuneration, as well as reimbursement of necessary expenses, must be made from income from the use of property transferred to management (Article 1023 of the Civil Code).

The manager shall dispose of real estate only in cases provided for by the agreement(Clause 1 of Article 1020 of the Civil Code).

Legal and actual actions are always performed by the trustee on his own behalf, who in this regard does not need a power of attorney. At the same time, he is obliged to inform all third parties that he is acting as such a manager. When performing actions that do not require written documentation, the specified communication is carried out by informing the other party in one way or another, and in written transactions and other documents, after the name or designation of the manager, the note “D.U.” must be made. (“Trustee”). If this requirement is not met, the manager becomes obligated to third parties personally and is liable to them only with the property belonging to him (paragraph 2, clause 3, article 1012 of the Civil Code).

Subject to the above conditions, debts under obligations arising in connection with the trust management of property are repaid at the expense of this property. In case of insufficiency of the latter, the penalty can be applied to the property of the trustee, and if his property is insufficient - to the property of the founder that has not been transferred to trust management (clause 3 of Article 1022 of the Civil Code). Thus, a two-stage system of subsidiary liability has been established - the manager and the founder.

For a transaction made by a trustee in excess of the powers granted to him or in violation of the restrictions established for him, the obligations are borne by the trustee personally.

However, if third parties participating in the transaction did not know and should not have known about these violations, the resulting obligations are subject to fulfillment in general procedure, provided for in paragraph 3 of Art. 1022 Civil Code. In this case, the founder may demand from the manager compensation for losses incurred by him (clause 2 of Article 1022 of the Civil Code).

According to paragraph 2 of Art. 1018 of the Civil Code, foreclosure of the debts of the founder on property transferred by him to trust management is not allowed, except in cases where he is declared insolvent (bankrupt). If the founder goes bankrupt, trust management of this property is terminated and it is included in the bankruptcy estate.

The trustee bears property liability for the results of his activities. The trustee, who, as a rule, is a professional entrepreneur, is liable for losses caused unless he proves that these losses arose as a result of force majeure or actions of the benefit of the acquirer or founder of the management (clause 1 of Article 1022 of the Civil Code).

Being a fixed-term transaction, the trust management agreement is terminated upon the expiration of the period for which it was concluded (or the deadline established by law). In the absence of an application from one of the parties to terminate the contract at the end of its validity period, it is considered extended for the same period and on the same conditions that were provided for by the contract (paragraph 2, clause 2, article 1016 of the Civil Code). If one party refuses a property trust management agreement, the other party must be notified of this three months before termination of the agreement, unless a different notice period is specified in the agreement. Upon termination of the agreement, the property held in trust is transferred to the founder, unless otherwise provided by the agreement (Article 1024 of the Civil Code).

Trust management of securities has certain features (Article 1025 of the Civil Code).

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 register additional agreement about a change of persons in an 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:

Detailed description of the subject of the agreement.
Personal data of the parties.
The amount and form of payment for services to the manager, if provided for by the terms of the document.
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 contract may 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.

If time is limited or there is a lack of knowledge and experience, the management of property assets can be delegated to a third party. Such a transaction is formalized by a trust management agreement. The essence of the process is the transfer for use, limited in time, to a trusted person of his property, so that this person is engaged in the efficient operation of assets to increase the level of profit of the owner of the objects used.

The essence of trust management

Measures to provide assets for trust management are determined by civil law. The procedure and rules for registering the procedure for transferring property are prescribed in Chapter. 53 Civil Code of the Russian Federation. The definition of the process of transferring objects or resources to another person under a trust management agreement is given in Art. 1012 of the Civil Code of the Russian Federation. The legislator indicates that one party grants the right to the other party to the transaction to dispose of property on a temporary basis. The main goal This format for disposing of property objects is an increase in the capital of the owner of the asset.

IMPORTANT! The trustee does not receive ownership of the property after the conclusion of the transaction; the agreement provides only for a temporary disposal to increase the profit of the asset owner.

The managing person can enter into transactions with the property entrusted to him. He draws up all contractual relations on his own behalf, but the documentation must indicate the status of a trustee and not a full owner. If the appropriate notes are not made in the documentation, then the manager will be responsible for the results of the transaction with his material resources and property (Article 1012, paragraph 3 of the Civil Code of the Russian Federation). According to the standards of paragraph 1 of Art. 1013 of the Civil Code of the Russian Federation, the object of a trust order may be:

exclusive rights;
sets of property assets;
selected real estate assets;
shares, bonds and other types of securities.

Rules for the transfer of property under a trust management agreement

To provide property to third parties for trust management, a number of restrictive measures are provided:

funds cannot be entrusted to the manager;
Property operated under the terms of operational management is prohibited from being transferred to managers (clause 3 of Article 1013 of the Civil Code).

A legal entity or individual entrepreneur can act as a trustee (clause 1 of Article 1015 of the Civil Code of the Russian Federation). Not allowed to manage other people's property government bodies and local government structures. The procedure for operating property assets is specified in an agreement between the owner of the assets and the manager. The transaction is formalized by a written agreement. Contractual documentation relating to real estate management must undergo state registration.

NOTE! The agreement for trust disposal and management of real estate is considered valid and entered into force from the moment the manager receives the property.

In the contract documentation in mandatory indicate the following information (Article 1016 of the Civil Code of the Russian Federation):

composition of the property to be transferred to the manager;
designation of the person who will act as a trustee;
the form of remuneration for the manager’s work and the amount of payment to him (if the contract involves the introduction of a payment system for such services);
expiration date of the agreement (maximum period of delegation of powers for property management is 5 years).

The absence of even one of the listed conditions creates preconditions for recognizing the contract as invalid. The rules for the transfer of trusted assets assume that these objects will be separated from the general complex of the owner’s property. The property entrusted to the manager must be accounted for on a separately allocated balance sheet, which is compiled by the party carrying out actions to dispose of the assets.

Taxation

The nuances of accounting for trust management are revealed in clause 1 of Art. 1018 of the Civil Code of the Russian Federation and in Order of the Ministry of Finance of November 28, 2001 No. 97n. The provisions of these legal acts regulate not only the transfer of powers to dispose of property, but also the emergence of an obligation for the manager to keep separate records of the objects entrusted to him. For the appointed manager, the situation is complicated in that he needs to maintain basic accounting of his activities and separate accounting of transactions with the property entrusted to him.

To reflect in accounting the fact of receiving one or more objects for trust management, the manager uses account 79.

REMEMBER! When organizing separate accounting for assets in trust management, the manager must be guided by the provisions accounting policy owner of the property.

Order No. 97n obliges managers to draw up financial statements and generate a manager’s report to familiarize yourself with the owner’s data contained therein. From the reporting documentation, the property owner must see the amount of assets and liabilities, the level of income and expenses associated with the disposal of assets.

To implement trust management activities, the legislator established restrictions on the possibility of applying the following tax regimes:

UTII;
patent system.

The norm dictating the impossibility of a manager switching to these special modes comes from the provisions of the Tax Code in clause 2.1 of Art. 346.26 and paragraph 6 of Art. 346.43.

Payment of VAT

Activities related to the disposal of property under a trust management agreement impose on the manager an obligation to calculate and pay. The manager must issue invoices for transactions involving the sale of goods or services, making appropriate entries in the purchase and sales ledger. VAT can be deducted by the manager if counterparties have issued invoices in his name.

Clause 5 Art. 174.1 of the Tax Code obliges managers under each of their contracts for the trust disposal of property at the end of the reporting period to prepare and submit VAT returns to the tax authorities. Tax authority for filing a declaration, it is selected in relation to the place of registration of the manager. For transactions with property held in trust, the owner of the assets does not have obligations to pay and report VAT.

Property tax

Property tax in cases of trust management by a person authorized to dispose of individual assets is not charged or paid. The obligation to make payments to the budget regarding property tax remains with the owner of the assets (clause 1 of Article 378 of the Tax Code).

Income tax

To ensure correctness, the manager organizes the recording of income and expenses in accounting for activities related to the management of other people’s property, separately from his own accounting activities (Article 332 of the Tax Code of the Russian Federation). Tax calculation is carried out only in one way - the accrual method. The procedure for calculating the amount of tax and its payment depends on the terms of the agreement between the asset owner and the manager:

If the owner acts as the beneficiary, the manager regularly submits reports to him with information on the amounts of income and expenses for the objects. The owner takes this data into account as part of non-operating items of profitability and costs.
If the owner is not identified as the beneficiary under the terms of the agreement, then the expenditure and income bases for the objects are used to determine the tax base for taxation by the beneficiary.

IT IS IMPORTANT! The costs of paying remuneration to the manager should always remain an expense item for the owner of the assets; their amount does not participate in the calculation of income tax for the beneficiary if he is another person.

Land tax

The manager does not have any obligation to pay land tax for the plots transferred to his disposal under the trust management agreement. The justification for this fact follows from paragraph 1 of Art. 388 of the Tax Code of the Russian Federation, which establishes a list of payers of this type of tax. Payers are persons who have the right:

property;
unlimited use;
lifelong inheritable ownership.

Controversial issues

One of the reasons that may lead to the recognition of the procedure for transferring property into trust as illegal is incorrect registration contractual relations asset owner and manager. The main requirements for the validity of a transaction:

The transaction must be supported by a documented written form of the contract.
The agreement must be signed by both parties.
If one of the participants used a facsimile, then the document will be recognized as legal only if there is a preliminary agreement between the participants in the transfer of property to trust management on the possibility of using a facsimile. Such an agreement is signed by the parties without using a facsimile.

Disputes arise in situations where parties to a transaction indicate consent to the use of facsimiles in the trust agreement itself. In this case, the agreement in judicial procedure will be declared invalid.

Other controversial issues are recognized:

determining the terms of reference when disposing of securities - the owner has the right to determine investment objects and develop a strategy, although decisions on how to manage assets must be made by the manager;
availability in civil law when denoting the responsibility of a manager, the term “due diligence” - the manager can be held liable for the lack of such diligence in relation to the assets entrusted to him; the legislator does not provide a decoding of the content of this concept, therefore, discrepancies regularly arise regarding the signs of the manager’s guilt.