Lease agreement for an indefinite period of the Civil Code of the Russian Federation. Term of the lease agreement

27.03.2019

Conclude any additional agreements to renew the contract for indefinite term not required. Since a lease agreement concluded (renewed) for an indefinite period cannot be considered concluded for a period of at least a year, such an agreement is not subject to state registration (clause 11 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 16, 2001 N 59). Let us recall that that each of its parties may refuse to execute a real estate lease agreement concluded for an indefinite period at any time by notifying the other party three months in advance, unless a different period for warning is established by law or agreement (clause 2 of article 610 of the Civil Code of the Russian Federation ).2. In accordance with paragraph 2 of Art. 1 of the Civil Code of the Russian Federation, citizens and legal entities are free to determine any terms of the contract that do not contradict the law. By virtue of paragraph 4 of Art.

How to correctly specify the term of the lease?

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Good afternoon. I LLC rent a garage box from an individual. To carry out my type of activity (beer production), I need a lease term of a year or more, but this will entail a long and costly registration in the cadastre.

Attention

If the contract is open-ended, if I understood correctly, then I can not register the contract in the cadastre. How to correctly formulate the clause of the lease agreement? And can I get an indefinite contract? P.S.

garage box issued to my mother, i.e. I actually rent from myself.

3. term of the lease and the term of the lease agreement

How to renew a real estate lease agreement on the same terms new term(11 months) without registering with Rosreestr? Having considered the issue, we came to the following conclusion: A real estate lease agreement concluded for a period of less than a year can be extended under the same conditions for a period of 11 months, including by concluding an additional agreement to it. State registration of the contract is not required.

Important

Rationale for the conclusion: In accordance with paragraph 1 of Art. 610 of the Civil Code of the Russian Federation, a lease agreement is concluded for a period specified in the agreement. If the lease term is not specified in the contract, the lease contract is considered concluded for an indefinite period.

2 of that article).

Renewal of the lease agreement

It is very convenient for hurried people (the case is on fire, but papers are tolerated) and slobs (he has already done something, but the contract is too lazy to make). If the beginning of the term of the agreement is not specified in its text, and the date of signing it by each of the parties is not indicated, then it will begin to operate from the date indicated in the preamble.

Info

The term of the contract may be indefinite (going to infinity until it is terminated) or definite - limited. An indefinite period takes place when: 1. In the contract regarding the term of the contract (with the exception of contracts for which, in accordance with the Civil Code, the term of the contract is essential condition and without specifying the term, the contract is considered not concluded, for example, insurance contracts, contracts for trust management of property) nothing is said; 2.

When the contract expressly states that it is concluded for an indefinite period; 3.

Lease, lease agreement (part 3)

It suffices to specify the following essential conditions:

Title of the document ( additional agreement on the extension of the rental period of residential / non-residential premises under the lease agreement No. ...);
description of the parties to the process, their details and contact information;
an indication of the changes being made.

Wording example: State the paragraph (paragraph number) of the lease agreement No. (contract number) in the following wording: The Landlord provides the Tenant with a living space with a total area of 45 sq. m., located at: (indicate the address of the location of the premises) for temporary possession and use for a period from (indicate the start date of the contract) to (indicate the expiration date of the contract). At the end of the add. agreement, the parties need to sign and, if necessary, certify the document with the seals of organizations.

The term of the lease agreement

N 59 "Review of the practice of resolving disputes related to the application of the Federal Law" On State Registration of Rights to Real Estate and Transactions with It ", hereinafter - information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation N 59). Contracted term less than one year. A lease agreement for non-residential premises concluded for a period of less than a year is not subject to state registration.

When extending a lease agreement concluded for a period of less than a year, for the same period after the end of the initial lease period, the agreement is also not subject to state registration. Similarly, a lease agreement concluded for a period of less than a year is not subject to state registration, in which the parties have provided for a condition on the automatic extension (prolongation) of the agreement after the end of the initial lease period for the same period in the absence of objections from the parties

paragraph 10 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation N 59).
A similar danger threatens the landlord if the tenant suddenly decides to change the leased object or finds a cheaper option. Therefore, the most convenient and safe way sign an agreement to extend the contract. However, there are a few things to keep in mind when designing it. important points. Checkpoints during registration 1. The renewal agreement can be signed both on the day the lease expires under the contract, and on a later date.
If some time has passed between the end of the contract and the signing of the agreement on its extension, then the relations of the parties that existed at that time are still regulated by the contract. Since the tenant continues to use the property after the expiration of the contract in the absence of objections from the lessor, the contract is considered renewed on the same conditions for an indefinite period on the basis of paragraph 2 of Article 621 of the Civil Code.
A period of one year or more specified in the contract. A lease agreement for non-residential premises (part of non-residential premises), concluded for a period of one year or more, is subject to state registration and is considered concluded from the moment of such registration (clause 2, article 651 of the Civil Code of the Russian Federation, information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 1, 2000 No. 53). In the absence of state registration, such a lease agreement for non-residential premises is not concluded. However, if one of the parties to such an agreement evades its state registration, the other party has the right, on the basis of paragraph 3 of Art. 165 of the Civil Code of the Russian Federation to file a claim for the obligation to register the contract (see clause 7 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation N 59). For the purposes of applying paragraph 2 of Art.

Indefinite term of the lease agreement how to register

However, depending on the circumstances and terms of the agreement, after the expiration of the period for which it was concluded, the relations of its parties related to the use (possession and use) of the leased object may continue. At the same time, it is not required to return the leased property and conclude a new lease agreement, although the parties are not deprived of the opportunity to formalize relations in this way. According to paragraph 2 of Art. 621 of the Civil Code of the Russian Federation, if the tenant continues to use the property after the expiration of the contract in the absence of objections from the lessor, the contract is considered renewed on the same terms for an indefinite period.
Information Letter of the Supreme Arbitration Court dated February 16, 2001 No. 59 “REVIEW OF THE PRACTICE OF RESOLUTION OF DISPUTES RELATED TO THE APPLICATION OF THE FEDERAL LAW “ON THE STATE REGISTRATION OF RIGHTS TO REAL PROPERTY AND TRANSACTIONS WITH IT”). And what are bad? Yes, because if it is necessary to tighten the conditions for the counterparty (to increase prices there due to inflation or some other need), then it will not be possible to make changes without his consent, you will have to terminate it, and the possibility of its termination at the request of one of the parties should be provided for by this contract.

Another thing is when the contract has expired. Do you want to continue joint work- Please accept the new conditions. And even if the counterparty accepts the changes, then for a long period there can be so many of them that you get confused in additional agreements.

Civil Code of the Russian Federation (which provides for the mandatory state registration of only fixed-term contracts concluded for a period of at least a year) and is confirmed by arbitration practice (Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District of February 8, 2002 in case N A79-146-2001-SK2-170, Resolution FAS of the Moscow District of January 23, 2001 in case N KG-A40 / 6418-00, Resolution of the FAS Northwestern District dated May 13, 2004 in case N A56-27225 / 03, dated January 25, 2008 in case N A26-394 / 2007). Not subject to state registration is also a lease agreement renewed in accordance with paragraph 1 of Art.
2 tbsp. 621 of the Civil Code of the Russian Federation for an indefinite period after the end of the main period in the absence of objections from the parties (see clause 11 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 16, 2001

New edition Art. 610 of the Civil Code of the Russian Federation

1. The lease agreement is concluded for a period specified in the agreement.

2. If the lease term is not specified in the contract, the lease contract shall be considered concluded for an indefinite period.

In this case, each of the parties has the right to withdraw from the contract at any time by notifying the other party one month in advance, and in case of renting real estate, three months in advance. The law or the agreement may establish a different period for warning about the termination of a lease agreement concluded for an indefinite period.

3. The law may establish maximum (limit) terms of the contract for certain types lease, as well as for the lease of certain types of property. In these cases, if the lease term is not specified in the contract and neither party has canceled the contract before the expiration deadline established by law, the contract terminates upon expiration of the deadline.

A lease agreement concluded for a period exceeding the limit period established by law is considered concluded for a period equal to the limit.

Commentary on Art. 610 of the Civil Code of the Russian Federation

An indication of the term in the contract is necessary, therefore this omission of it will be interpreted according to the temporary nature of the use, not in the sense of its eternity, but in the sense of the possibility of ending it at any time.

G.F. Shershenevich

Arbitrage practice.

Early release of the leased premises (before the termination of the lease agreement in accordance with the established procedure) is not a basis for terminating the tenant's obligation to pay rent. The lessor's demand for the collection of rent until the termination of the contract is lawful (attachment to the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 11.01.2002 N 66).

Another commentary on Art. 610 of the Civil Code of the Russian Federation

1. The property is provided to the lessee, as a rule, for a certain term exactly specified in the contract (contractual term). It can be determined by a calendar date, the expiration of a period of time, or an indication of an event that should occur (see Article 190 of the Civil Code of the Russian Federation). Leases for up to one year are considered short-term.

2. If the lease term is not indicated in the contract at all or the method of its determination is not named, or it is made dependent on the discretion of the parties, then we are talking about an indefinite period.

When concluding a contract for an indefinite period, each of the parties is supposed to have the right to unilaterally, at any time, without going to court to withdraw from the contract. In other words, a warning about the refusal of a lease agreement concluded without specifying a period may come from the tenant or landlord. IN this case It does not matter what circumstances predetermined the intention of the parties to withdraw from the contract. It is enough to notify the counterparty about this one month in advance, and when renting real estate - three months in advance. However, the law or the agreement may establish a different period for warning about the termination of a lease agreement concluded for an indefinite period. In particular, the tenant (but not the landlord) under the rental agreement is obliged to notify about the refusal in writing at least 10 days in advance (clause 3 of article 627 of the Civil Code of the Russian Federation).

The obligations of the parties arising from the lease agreement remain valid until the expiration of the notice period.

The law does not provide for the form in which a warning must be given about the cancellation of an agreement concluded without specifying a period. It must be assumed that it must be made in the form in which the treaty itself was made.

3. According to clause 3 of the commented article, the lease term can be not only contractual, but also normative, established directly in the law. The normative terms established for certain types of lease, as well as for the lease of certain types of property, can only be maximum (limit). There is no provision for establishing minimum standard lease periods for GCs. Maximum rental periods vary in duration. When establishing them, the legislator takes into account in some cases the composition of the participants, in others - the object of the lease or the purpose of the property or the purpose of its use, and so on. For example, the deadline for a rental agreement, taking into account its predominantly consumer nature, is 1 year (Article 627 of the Civil Code of the Russian Federation). Taking into account the features of the object, the normative terms for the lease of natural objects have been established. Thus, a period of 49 years is the limit for the lease of forest fund plots (Article 31 of the LC). For water bodies, the maximum terms are set up to 3 years (short-term lease) and up to 25 years (long-term lease) (Article 42 of the VC). For rent to government or municipal needs or for survey work land plot can be transferred for a period of not more than 1 year (clause 7, article 22 of the Land Code).

4. The admissibility of establishing normative maximum lease periods is connected with the consequences of concluding a lease agreement for an indefinite period or exceeding the deadline established by law. In the first case, if neither party has withdrawn from the contract before the expiration of the deadline, the contract is terminated after the expiration of the deadline.

The term of the contract (term of the contract) is the period of time during which the terms of the contract are valid and the obligations of the parties established by it are fulfilled (Articles 425, 610 of the Civil Code of the Russian Federation).

The lease term is the period of time during which the tenant has the right to use (or own and use) the property (Article 610 of the Civil Code of the Russian Federation).

Article 610 of the Civil Code of the Russian Federation does not separate the concepts of "term of a lease agreement" and "term of lease".

However, some courts directly indicate that these concepts are not identical and the indicated terms may not coincide.

The term of the lease and the term of the contract in practice, indeed, can coincide in time. For example, if the property is transferred to the tenant simultaneously with the conclusion of the lease agreement and returned with its termination, the lease term will be equal to the term of the agreement.

However, the starting times for these dates may vary. For example, if the property is transferred a few days after the signing of the contract by the parties, then the term of the contract will begin to run from the moment it is signed, and the lease term will begin to run from the moment the property is transferred. This situation is possible, since the lease agreement is recognized by most courts as consensual and, in accordance with paragraph 1 of Art. 425, paragraph 1 of Art. 433 of the Civil Code of the Russian Federation is considered concluded from the moment the acceptance is received by the person who sent the offer, in particular, from the moment the contract is signed by both parties.

However, it should be taken into account that in judicial practice there is a position according to which a lease agreement is recognized as concluded from the moment the property is transferred (clause 2 of article 433 of the Civil Code of the Russian Federation) and is called a real agreement. With this approach, the beginning of the term of the contract will coincide with the beginning of the lease term. However, the position on the consensuality of the lease agreement can be considered more common.

Thus, based on judicial practice, as well as Art. Art. 425, 433, paragraph 3 of Art. 611 of the Civil Code of the Russian Federation, it can be concluded that both of these terms can be established in the contract:

- lease term;

- contract time.

According to paragraph 2 of Art. 609 of the Civil Code of the Russian Federation, a real estate lease agreement is subject to state registration, unless otherwise provided by law. In particular, it is necessary to register a lease agreement for buildings or structures for a period of at least a year (clause 2, article 651 of the Civil Code of the Russian Federation). Such an agreement is considered concluded from the moment of registration (clause 3, article 433 of the Civil Code of the Russian Federation). At the same time, part 8 of Art. 2 of the Federal Law of December 30, 2012 N 302-FZ "On Amendments to Chapters 1, 2, 3 and 4 of Part One of the Civil Code Russian Federation"It was found that the rules of art. Art. 609, 651 of the Civil Code of the Russian Federation are not subject to application to contracts concluded after the day the said Law enters into force (after March 1, 2013). Subsequently, Art. 3 of the Federal Law of March 4, 2013 N 21-FZ "On Amendments to Certain legislative acts of the Russian Federation and the invalidation of certain provisions of the legislative acts of the Russian Federation” these changes were canceled.

Articles 314, 425, 610, 621 of the Civil Code of the Russian Federation

Contract time(term of the contract) is the period of time during which the terms of the contract are valid and the obligations of the parties established by it are fulfilled (Articles 425, 610 of the Civil Code of the Russian Federation).

Rental period- the period of time during which the tenant has the right to use (or own and use) the property (Article 610 of the Civil Code of the Russian Federation).

Article 610 of the Civil Code of the Russian Federation does not separate the concepts of “term of a lease agreement” and “term of lease”.

However, some courts directly indicate that these concepts are not identical and the indicated terms may not coincide.

However, the starting times for these dates may vary. For example, if the property is transferred a few days after the signing of the agreement by the parties, then the term of the agreement will begin to run from the moment it is signed, and the lease term - from the moment the property is transferred. This situation is possible, since the lease agreement is recognized by most courts as consensual and, in accordance with paragraph 1 of Art. 425, paragraph 1 of Art. 433 of the Civil Code of the Russian Federation is considered concluded from the moment the acceptance is received by the person who sent the offer, in particular, from the moment the contract is signed by both parties.

Nevertheless, it should be borne in mind that in judicial practice there is a position according to which a lease agreement is recognized as concluded from the moment the property is transferred (clause 2 of article 433 of the Civil Code of the Russian Federation) and is called a real contract. With this approach, the beginning of the term of the contract will coincide with the beginning of the lease term. However, the position on the consensuality of the lease agreement can be considered more common.

In addition, from paragraph 3 of Art. 611 of the Civil Code of the Russian Federation also follows that the contract may establish a period for the transfer of property, coming after the conclusion of the contract. For more details on agreeing on the term for the transfer of property, see clause 4.1.1 of these Recommendations, on the term for the return of property upon termination of the contract, see clause 4.2.4.

- the term of the lease;

- contract time.

According to paragraph 2 of Art. 609 of the Civil Code of the Russian Federation, a real estate lease agreement is subject to state registration, unless otherwise provided by law. In particular, it is necessary to register a lease agreement for buildings or structures for a period of at least one year. Such an agreement is considered concluded from the moment of registration (clause 2, article 651 of the Civil Code of the Russian Federation). At the same time, part 8 of Art. 2 of the Federal Law of December 30, 2012 N 302-FZ “On Amending Chapters 1, 2, 3 and 4 of Part One of the Civil Code of the Russian Federation” it was established that the rules of Art. Art. 609, 651 of the Civil Code of the Russian Federation are not subject to application to contracts concluded after the day the said Law enters into force (after March 1, 2013). Subsequently, Art. 3 of Federal Law No. 21-FZ of 04.03.2013 “On Amending Certain Legislative Acts of the Russian Federation and Recognizing Certain Provisions of Legislative Acts of the Russian Federation as Invalid” these changes were cancelled.

3.1. RENTAL TERM

Article 610 of the Civil Code of the Russian Federation

Terms of lease within the meaning of Part 1 of Art. 606, Art. 610 of the Civil Code of the Russian Federation determines during what time the tenant has the right to use or possess and use the leased object. It is for this period that the tenant pays rent (clause 1, article 614 of the Civil Code of the Russian Federation).

Agreement on the terms of the lease

The initial lease term determines when the property must be provided to the tenant for temporary possession and (or) use.

For more information on agreeing on the term for the transfer of property for rent, see clause 4.1.1 of these Recommendations.

The deadline sets the moment when the property is returned from temporary possession and use. For more information on agreeing on the term for the return of property, see clause 4.2.4 of these Recommendations.

Simultaneously with the end of the lease, the contract may end, unless a separate period of its validity is established or obligations are provided, the deadline for which occurs after the return of the property (clause 3, article 425 of the Civil Code of the Russian Federation). See clause 3.2 of these Recommendations for details on agreeing on the term of the contract.

The initial and final terms of the lease must be determined according to the rules of Art. Art. 190 - 194 of the Civil Code of the Russian Federation, namely:

- calendar date;

– the expiration of a period of time;

- an indication of an event that must inevitably occur.

If the contract does not specify the term of the lease

In this case, the lease agreement is considered concluded, since the lease term is not an essential condition of the lease agreement (Article 606 of the Civil Code of the Russian Federation). If there is no lease term in the contract, it will be equal to the term of the contract. If at the same time the term of the contract is not agreed upon, the contract will be considered concluded for an indefinite period (clause 2 of article 610 of the Civil Code of the Russian Federation). This means that either party may at any time withdraw from the lease agreement by giving the other party one month's notice, and in the case of a real estate lease, three months' notice (see, in particular, Lessee's Risk 3.1.1).

3.1.1. Determination of the lease term by calendar dates

If the transfer of the object for rent is not due to any events or circumstances and the parties know in advance the exact dates of the beginning and end of the use of the property, it is recommended to coordinate the initial and final terms of the lease by indicating calendar dates.

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Condition statement example:

“The start of the lease is “___”.______________.20__

The end of the lease is “____”.____________.20__”.

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In practice, the lease term is often determined by indicating a period of time limited by calendar dates (for example, “from January 01, 2015 By March 31, 2016 or from January 01, 2015 before February 15, 2016). Agreeing the term in this way affects the determination of the length of the lease term, including the calculation of the rent.

A lease term condition formulated using the preposition “until” or “until” may raise the question: is the end date of the lease term included in the lease term itself?

Pretext before in one of its meanings “used when specifying the time limit of the action”; pretext By with the accusative case in one of the meanings “corresponds in meaning to the preposition before”(Dictionary of the Russian language in 4 volumes / Edited by A.P. Evgenieva).

Judicial practice on the issue of interpreting whether the date indicated after the preposition “before” is on time is ambiguous. For more details, see clause 4.2.1 “Determining the term of the lease agreement for a building (structure, premises) according to the rules of Art. Art. 190 - 194 of the Civil Code of the Russian Federation ”Recommendations on the conclusion of a lease agreement for buildings and structures.

To avoid controversy about including the end date in the lease term, it is recommended to use the adverb “ inclusive“. The indication of this word when determining the end of the lease term will unambiguously indicate the inclusion of the date of its expiration in the lease term.

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“The property lease period is set from January 01, 2015 to March 31, 2016 inclusive.”

“The property lease term is set from January 01, 2015 to February 15, 2016 inclusive.”

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3.1.2. Determining the lease term by the expiration of a period of time

The initial and (or) final terms of the lease in accordance with Art. 190 of the Civil Code of the Russian Federation can be determined by the expiration of a period of time calculated in years, months, weeks, days or hours.

With this method of coordination, it is necessary to specify the period itself and its beginning.

The beginning of the period can be a calendar date or the occurrence of an event (Article 191 of the Civil Code of the Russian Federation).

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Condition statement examples:

“The lease term of the property starts from “_____”.____________.20__ and ends after 11 (eleven) months.”

“The lease term of the property is 11 (eleven) months from the date of conclusion of the lease agreement.”

“The lease term of the property is 11 (eleven) months from the date of signing the acceptance certificate.”

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According to Art. 191 of the Civil Code of the Russian Federation, when determining it as a period of time, it begins to run not from the calendar date specified in the contract, or from the moment an event occurs, but the next day after this date or event.

Accordingly, if the tenant needs to start using the property, for example, from June 1, the contract should specify May 31 as the start date for the lease term. The parties may set a transfer date of May 31, so that the tenant can fully use the property from June 1. In this case, the transfer of property must be made before the end of the day on May 31. If the parties to the contract are legal entities, then according to the rules of par. 2 p. 1 art. 194 of the Civil Code of the Russian Federation, the expiration of the transfer of property will come at the hour when the corresponding operations are terminated in the organization that is the tenant.

The end of the lease term, determined by the period of time, is calculated according to the rules of Art. 192 of the Civil Code of the Russian Federation.

Thus, a period calculated in years expires on the corresponding month and date. last year term. For example, if the start date for the lease is June 2, 2015, then a one-year lease would begin on June 3, 2015 and end on June 2, 2016.

3.1.3. Determining the lease term by pointing to an inevitable event

The use of property is sometimes expedient only under certain circumstances or after the occurrence of an event (for example, the beginning of an ice drift or a sowing season). But it is possible to agree on the start and (or) end of the lease by indicating the event only if its occurrence is inevitable (Article 190 of the Civil Code of the Russian Federation). This means that it does not depend on the will and actions of the parties (clause 4 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 11, 2002 N 66).

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Condition statement example:

“The equipment specified in clause 1.1 of this agreement is transferred to the tenant for temporary possession and use from the day navigation begins on the Amur River near Khabarovsk in 20__ until the day following the end of this navigation.”

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3.2. TERM OF THE LEASE

Articles 425, 433, 610, 621 of the Civil Code of the Russian Federation

The duration of the lease agreement this is the period of time during which the terms of the contract are valid and the obligations of the parties established by it are fulfilled (Article 425 of the Civil Code of the Russian Federation).

The beginning of the term of the lease agreement by virtue of the law is determined by the moment the agreement is concluded (clause 1, article 425 of the Civil Code of the Russian Federation). From this moment, the parties have obligations and the terms of the contract begin to operate. The parties do not have the right to voluntarily change the beginning of the lease agreement (clause 1, article 433 of the Civil Code of the Russian Federation). For the validity period of a lease agreement subject to state registration, see clause 4.2 of the Recommendations for Concluding a Lease Agreement for Buildings and Structures.

The expiration of the lease agreement may be determined at the discretion of the parties.

Negotiation of the term of the lease agreement

Upon agreement given condition parties are encouraged to:

– determine the duration of the contract;

- provide for the application of the terms of the lease agreement to relations that arose before its conclusion (if necessary);

- indicate whether the tenant is granted the pre-emptive right to conclude an agreement for a new term;

– determine whether the lease agreement will be renewed for a new term with the same tenant.

If the term of the lease agreement is not defined

In this case, the contract continues to be valid until the moment specified in it when the parties fulfill their obligations (paragraph 2, clause 3, article 425 of the Civil Code of the Russian Federation). For a lease agreement, this moment is the return of the property to the lessor at the end of a certain lease term or the payment by the tenant of the rent for the entire lease term, if, under the terms of the contract, it is paid after the end of the use of the lease object. If at the same time the lease term is not specified in the contract, the contract will be considered concluded for an indefinite period (clause 2, article 610 of the Civil Code of the Russian Federation).

3.2.1. Determination of the term of the lease agreement

The term of the contract, as well as the term of the lease, is established according to the rules of Art. Art. 190, 191 of the Civil Code of the Russian Federation. In this case, in fact, the parties agree only on the final term of the contract, since the initial term is determined by the moment of its conclusion (clause 1, article 425 of the Civil Code of the Russian Federation).

The term may be indicated by a calendar date. For details on this method of indication, see clause 3.1.1 of these Recommendations.

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Condition statement example:

“This agreement is valid until “_____” ____________ 201_ inclusive.”

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You can determine the expiration date for a period that is calculated in years, months, weeks, days or hours and the beginning of which is a calendar date or the occurrence of an event (part 1 of article 190, article 191 of the Civil Code of the Russian Federation).

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Condition statement example:

“This Agreement shall terminate within ______ days after ______________.”

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The term can be determined by an indication of an event that must inevitably occur (part 2 of article 190 of the Civil Code of the Russian Federation). An event is recognized as such, the occurrence of which does not depend on the will and actions of the parties. At the same time, it is not recommended to establish the term of the contract by indicating the actions of the parties (for example, to agree that the contract is valid until the start of the reconstruction of the leased property). In this case, the contract may be recognized as concluded for an indefinite period (clause 4 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 11, 2002 N 66).

If the term of the contract is not determined according to the rules of Part 2 of Art. 190 of the Civil Code of the Russian Federation

The condition on the duration of the contract, which is determined by an event that does not have the sign of inevitability, the court may recognize as inconsistent. As a result, the contract will be considered concluded for an indefinite period in accordance with paragraph 2 of Art. 610 of the Civil Code of the Russian Federation.

The lessor will have the right to cancel the contract at any time by notifying the lessee within the time limits established by this article and claim the property (see Lessee's risk 3.2.1, Lessee's risk 3.2.2).

3.2.2. Application of the terms of the lease agreement to relations that arose before its conclusion

Article 425 of the Civil Code of the Russian Federation

The parties may provide that the terms of the lease agreement apply to relations that arose before its conclusion (clause 2, article 425 of the Civil Code of the Russian Federation).

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Condition statement example:

“The terms of this agreement shall apply to relations on the lease of property that arose between the parties before the conclusion of this agreement.”

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Attention! The condition under consideration does not mean that the obligations of the parties to fulfill the contract arise before the conclusion of the contract (clause 1, article 425 of the Civil Code of the Russian Federation).

In this regard, the parties are not entitled to apply liability measures to each other (in particular, to demand the collection of a contractual penalty) for the period before the conclusion of the contract (clause 6 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 11.01.2002 N 66).

The parties may agree on the condition on the extension of the contract to actual relations before its conclusion by indicating the date from which these relations arose.

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Condition statement example:

“The terms of this agreement apply to relations that have arisen between the parties since May 1, 2012.”.

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However, in the absence of evidence of the transfer of property on the specified date (for example, a transfer and acceptance certificate), the lessor will not be able to require the tenant to pay rent for the period from the specified date until the moment when the property was actually transferred (see Lessor's risk 3.2.1).

If the application of the terms of the lease agreement to relations that arose before its conclusion is not agreed

In this case, the parties are not entitled to demand the fulfillment of obligations under the lease relations that have arisen earlier in accordance with the terms of the concluded agreement. In particular, the landlord is not entitled to require the tenant to pay rent in the amount specified in the contract (see Lessor's risk 3.2.2).

However, from paragraph 1 of Art. 1102, paragraph 2 of Art. 1105 of the Civil Code of the Russian Federation it follows that unjust enrichment in the amount corresponding to the fee saved as a result of such use may be recovered for the use of property before the conclusion of a lease agreement. Its size is determined on the basis of the price that existed at the time when the use ended, in the place where it took place. When calculating unjust enrichment for the use of, for example, real estate, the court may take into account the opinion of the appraiser on the market rent for this object (Determination of the Supreme Arbitration Court of the Russian Federation dated January 22, 2014 N VAC-109/14).

3.2.3. Preferential right to conclude a lease agreement for a new term

Article 621 of the Civil Code of the Russian Federation

The tenant, who duly fulfilled his obligations under the contract, has a priority right over third parties to conclude a lease agreement for a new term (clause 1, article 621 of the Civil Code of the Russian Federation), unless otherwise provided by the lease agreement.

This right applies only to the lease of the same object.

The tenant may exercise the pre-emptive right only if the following conditions are simultaneously met:

- if he notified the lessor of his desire to exercise the pre-emptive right to conclude an agreement for a new term (Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District of March 30, 2009 in case N A79-5631 / 2008 (Determination of the Supreme Arbitration Court of the Russian Federation of June 24, 2009 N VAC-1683 / 09 refused to transfer this case to the Presidium of the Supreme Arbitration Court of the Russian Federation for review by way of supervision));

- if he conscientiously fulfilled the obligations under the contract. Otherwise, the tenant loses the pre-emptive right to conclude a contract for a new term, while the materiality of the violation does not affect the decision of the issue of his good faith.

Unfair performance of obligations under the contract, in which the tenant is deprived of the pre-emptive right to conclude the contract, is, in particular, violation of the deadline for paying rent;

– if the contract has not been renewed for an indefinite period. Otherwise, the court may recognize that the tenant loses the pre-emptive right to conclude a contract for a new term. At the same time, there is an opposite judicial practice, according to which the tenant is not deprived of the pre-emptive right in case of renewal of the lease agreement for an indefinite period;

- if there is no agreement between the parties to terminate the contract after the tenant sends the lessor an application for the conclusion of the contract for a new term.

The presence of a pre-emptive right does not mean that the lessee can require the lessor to conclude a new contract on the same terms. In this case, the landlord is not bound by the terms of the previous contract. He has the right to offer the tenant and third parties other conditions for the lease of property or refuse to lease the property. Preemptive right means only the right of the tenant to conclude a lease agreement with the landlord in respect of the same property as a matter of priority.

At the same time, the consequences of a violation by the lessor of the pre-emptive right of the tenant can be applied by the court only if an agreement is concluded between the lessor and a third party. However, there is another position in judicial practice, according to which, when filing a claim for the protection of the pre-emptive right, it is enough for the tenant to prove the intention of the lessor to conclude a lease agreement for the same property with a third party.

The parties may agree on a condition to limit the tenant's pre-emptive right. This allows the landlord to freely conclude an agreement with third parties.

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Condition statement example:

“The tenant does not have a priority right to conclude a lease agreement for a new term.”

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It should be borne in mind that the lease of state or municipal property is associated with the peculiarities of the tenant's exercise of the pre-emptive right to conclude an agreement for a new term. For more details, see clause 14.1 of these Recommendations.

If the condition on the exclusion of the pre-emptive right of the tenant to conclude an agreement for a new term is not agreed

In this case, the tenant will be able to exercise the pre-emptive right (clause 1, article 621 of the Civil Code of the Russian Federation). If the landlord refuses to conclude an agreement for a new term and concludes an agreement with a third party within a year from the date of expiration of the lease agreement, the tenant, in accordance with paragraph 1 of Art. 621 of the Civil Code of the Russian Federation, will have the right to demand the transfer of rights and obligations under an agreement concluded with a third party and compensation for losses or only compensation for losses (see Lessor's risk 3.2.3).

3.2.4. Renewal of the lease agreement, extension (prolongation) of the agreement

Article 621 of the Civil Code of the Russian Federation

Renewal of the contract lease means the extension of its terms for an indefinite period by virtue of paragraph 2 of Art. 621 of the Civil Code of the Russian Federation.

Extension of the contract (prolongation)- extension of its validity for a definite or indefinite period by agreement of the parties.

The term "prolongation" is not used in Civil Code RF, however, is often used in legal practice when drafting contracts as a synonym for the term “renewal”. Prolongation is an extension of the term of a contract, bill, loan, loan (Raizberg B.A., Lozovsky L.Sh., Starodubtseva E.B. “Modern Economic Dictionary” (INFRA-M, 2011)).

Renewal of the contract by force of law

According to paragraph 2 of Art. 621 of the Civil Code of the Russian Federation, in order to renew a lease for an indefinite period, by virtue of the law, the simultaneous presence of two conditions is necessary:

- use of property after the expiration of the contract;

– no objections from the landlord.

When renewing for a new term a lease agreement for state or municipal property, it is necessary to take into account the specifics associated with the need to conduct tenders to conclude an agreement. For more details, see clause 14.2 of these Recommendations.

Validity of an agreement renewed for an indefinite period upon conclusion of a new agreement

Sometimes in practice, after the renewal of the contract for an indefinite period, the parties nevertheless conclude a new contract with similar conditions. If the new treaty is subsequently recognized as not concluded, the question arises: does the renewed treaty still apply in this case? The answer to this question is important, in particular, when determining the continuous period of possession and use of leased property by a small and medium-sized business entity for the further implementation of its pre-emptive right to acquire property into ownership (for more details, see clause 14.3.2 of these Recommendations). In addition, the solution said question it is important, for example, if, upon recognizing a new contract as not concluded, the landlord sues the tenant for the return of property due to the lack of grounds for possession and use of it. If the renewed contract is found to be valid, the claim for the return of the property must be denied.

In judicial practice, an approach has been developed according to which, if the contract is renewed for an indefinite period, after which a new contract is signed, later recognized as not concluded, the original contract continues to operate.

It may be convenient for a landlord who leases property that is in demand to exclude the possibility of renewing a lease agreement in accordance with paragraph 2 of Art. 621 of the Civil Code of the Russian Federation. Termination of the contract after its expiration allows the lessor to start negotiations with the same tenant to agree on new terms of the contract, including conditions on the price. Upon renewal, the contract is extended under the same conditions, and price changes are possible only under certain conditions. For more information about changing the amount of rent by agreement of the parties, see clause 7.1 of these Recommendations, for changing the amount of rent unilaterally out of court, see clause 7.2 of these Recommendations.

The courts generally allow the possibility of negotiating in the contract a prohibition to renew the contract for an indefinite period. At the same time, there is a judicial act in which the court pointed out the imperative nature of the norm of Art. 621 of the Civil Code of the Russian Federation and the inability to establish in the contract a condition on a ban on its renewal.

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Condition statement example:

“After the expiration of the term of the agreement, this agreement is not subject to renewal for an indefinite period.”

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The question of whether a contract containing a condition for its termination upon expiration is subject to renewal is decided in different ways. Some courts indicate that the provision of paragraph 2 of Art. 621 of the Civil Code of the Russian Federation is imperative and cannot be changed by agreement of the parties. Therefore, if there are no objections from the landlord against the fact that the tenant continues to use the property, the contract is considered to be renewed for an indefinite period. Others believe that the named norm is dispositive. In this regard, the condition according to which the lease agreement terminates at the end of its validity period prevents the renewal of the agreement.

According to paragraph 2 of Art. 621 of the Civil Code of the Russian Federation, renewal of the contract is possible only if there are no objections from the landlord. It seems that objections can be expressed by the lessor not only at the end of the contract, but also at its conclusion by agreeing on the appropriate conditions. There is a possibility that if there is such a condition in the contract, the courts will consider it as provided for in paragraph 2 of Art. 621 of the Civil Code of the Russian Federation an obstacle to the renewal of the contract. To agree on the conditions, it is recommended to indicate the termination of the contract upon its expiration and the presence of objections from the lessor in accordance with the named norm.

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Condition statement example:

“The contract terminates upon its expiration. The landlord on the basis of paragraph 2 of Art. 621 of the Civil Code of the Russian Federation objects to the tenant continuing to use the property after the expiration of its validity period without concluding a new contract.

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3.2.4.2. Extension (prolongation) of the lease agreement for a new term

If the parties want to immediately determine their relationship for the future period, the contract can include a condition for its extension (prolongation) for a new period.

The condition that the contract is extended for the same period and under the same conditions does not mean that after the extension it is considered concluded for an indefinite period. None of the parties in the presence of such a condition will be able to withdraw from the contract on the basis of par. 2 p. 2 art. 610 of the Civil Code of the Russian Federation (see Lessor Risk 3.2.4).

If the parties stipulate that the contract is extended for a certain period, and do not indicate the number of times for which prolongation is possible, the extension of the contract will be considered one-time, after which it can be renewed for an indefinite period in accordance with paragraph 2 of Art. 621 of the Civil Code of the Russian Federation.

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Condition statement example:

“After the expiration of the contract, if neither party has declared its termination, the contract is considered extended for six months.”

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It is recommended to establish in the contract that the condition for its extension is the absence of objections from both parties regarding the further continuation of the contractual relationship, and to determine the period before the expiration of the contract, during which such objections can be sent.

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Condition statement example:

“This agreement comes into force on 02/01/20__ and is valid until 12/31/20__. If a month before the expiration of the contract, the parties have not filed objections, it is considered extended for the next calendar year on the same terms.

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If the condition for the extension (prolongation) of the contract is not agreed

In this case, the tenant will not be able to use the property after the expiration of the contract if the landlord objects to the extension lease relations(Article 621 of the Civil Code of the Russian Federation).

It is allowed for legal entities to conclude a lease agreement for non-residential premises, provided that it is used for commercial purposes. The parties to the agreement are the Lessee and the Lessor

The procedure for drawing up a lease agreement is determined by law and obliges to contain the following information:

Parties to the transaction;
Information about the Lessee and the Lessor;
Name of the leased premises;
Description of the property;
The address of the premises;
How long is the space for rent?
Amount of payment;
Procedure and frequency of payment;

The lease agreement for commercial premises begins with filling in the information of the parties to the transaction. For legal entity This:

Full and short name of the organization;
Number and series of registration certificate;
Actual and legal address;
Bank details;
Surname, name and patronymic of the head who will sign the contract.

The next not unimportant item will be a description of the premises for rent. It must be indicated here:

The condition of the premises before the signing of the contract;
Existing deficiencies and damage;
What land is the property on?
Conditions of maintenance of the adjacent territory.
The area of the leased premises;
The presence of connected communications;
Payment rules utilities.

It is also allowed to attach to the contract not only a description of the object, but also its photographs taken inside and outside.

Important is the information that must be indicated in the document before signing it - this is payment for utilities, payment for places common use; current and overhaul and etc.

The parties under the lease agreement must indicate for what purposes the organization rents the premises, what type of activity it plans to do there.

Term of the lease agreement

The lease agreement for non-residential premises has no fixed terms. It is concluded for an indefinite time or for a period specified in the contract. From which it follows that maximum term there is no lease agreement for non-residential property.

The lease agreement is extended:

When signing a new contract;
The old contract is prolonged (if there is no fact of its termination);
By signing an additional agreement (if the terms of the lease are changed).

An agreement drawn up for a period of up to one year (eleven months) does not pass state registration. Such an agreement is extended automatically, unless the parties decide otherwise. The term of the extended contract is also eleven months.

Land lease

Lease of a land plot can be concluded between legal entities and individuals.

The term of the land lease agreement can be short-term and long-term.

Short-term contracts are drawn up for a period of five years.
Long-term - from five to forty-nine years.

Short-term lease is most often concluded for construction, reconstruction, erection of monuments and laying out of the park, placement of parking lots, parking lots, playgrounds with the installation of small architectural forms, etc.

Long term rental land is needed for its long-term operation, for objects of industrial complexes or for growing agricultural products. Long-term leased lands can subsequently be registered or bought into ownership by its tenant.

Lease of land for a period of less than one year, as well as the lease of non-residential real estate does not require state registration.

Land leased to long terms must be registered with the Registry. The registration of leased land confirms the tenant's ownership of the land. He is also a payer of taxes on property, which includes the land.

Features of concluding a land lease agreement

TO general requirements when concluding a deal with land, include:

It is allowed to lease land to all persons residing on the territory of the Russian Federation;

The law does not oblige the tenant to have a residence permit or temporary registration in Russia;

It is forbidden to lease land located in the coastal or protected area.

The land lease agreement must contain the following information:

Assigned cadastral number;
Location of the site;
Square;
terms of the contract;
Rent price;
Payment order;
Conditions for the exploitation of the land;
Details and signatures of both parties.

The following clauses must be included in the contract:

Responsibility of the parties;
Unexpected situations;
Dispute resolution procedure;
Making changes to the document;
Additional terms.

It should be noted that land owned by the state or municipality can only be leased through participation in an auction.

If the land belongs to an individual or a commercial organization, its lease is more simplified. For such a transaction, only the consent of two parties is needed - the tenant and the landlord, who sign the contract.

It is not uncommon to lease a share owned by an individual. In this case, the Share Certificate serves as the basis for such a transaction.

In any transaction, both between commercial structures and with authorities, land owners, the transfer of the object takes place by signing the Transfer and Acceptance Act.

You can extend the land lease agreement by concluding an additional agreement indicating the new terms of its use.

Termination of an agreement

Terminating land lease relationships is very difficult. This requires a number of facts indicating a violation of the contract by one of the parties. If the tenant or landlord decides to terminate the contract, they are obliged to notify the other party within thirty days, unless other terms are specified in the contract.

It is very difficult to challenge an already signed contract in court, so you should make all the necessary nuances in the execution of the contract. Better decoration and drawing up a land lease agreement to entrust a qualified specialist.