Contract for the lease of buildings and structures - Civil law. Lectures

Under a lease agreement for a building or structure (structure), the lessor undertakes to transfer the building or structure to the tenant for temporary possession and use or for temporary use (clause 1, article 650 of the Civil Code).

The need to allocate this type of lease agreement is due to the peculiarities legal regime buildings and structures (structures), i.e. buildings that are legally firmly connected with the land. Therefore, the lease of a building or structure is impossible without determining the tenant's rights to the land plot occupied by the building and necessary for its intended use. By Russian legislation a building on a foreign land is also recognized as real estate, in connection with which this agreement also regulates the lease of such buildings (clause 3 of article 652 of the Civil Code).

The subject of this lease may be only the building or the structure as a whole. If a part of a building or structure (so-called non-residential premises) is rented out, the relationship between the lessor and the tenant should be governed by the general rules on the lease agreement. When renting non-residential premises the rights of the tenant to the land plot can be determined only in the contract. When renting a building or structure as a whole, the type of tenant's right to a land plot, its volume can be determined not only by the contract, but also by law (paragraph 2 of article 652 of the Civil Code).

Only non-residential buildings can be the subject of a lease agreement for buildings and structures. The rental of residential buildings (Article 673 of the Civil Code) is regulated by the rules on the contract for the rental of residential premises.

In accordance with paragraph 1 of Art. 651 of the Civil Code, a lease agreement for a building or structure must be concluded in writing by drawing up one document signed by the parties. Failure to comply with the form of the lease agreement for a building or structure shall entail its invalidity.

A lease agreement for a building or structure concluded for a period of at least one year is subject to state registration and is considered concluded from the moment of such registration (paragraph 2 of article 651 of the Civil Code). Therefore, a lease agreement for a building or structure for a period of up to one year should be considered concluded even without state registration if there is an appropriate written form.

The nature of the relationship between the rights of the tenant of the building with the rights to the land plot is expressed in paragraph 1 of Art. 652 of the Civil Code, according to which, under a lease agreement for a building (structure), the tenant simultaneously with the transfer of the rights to own and use such real estate is transferred the rights to the land plot that is occupied by this real estate and is necessary for its use. In other words, by hiring a building, the tenant acquires the rights to the land plot, which functionally serves him (paragraph 1 of article 652 of the Civil Code). The nature of the rights of the tenant of the building to the land plot depends on the nature and type of the right to the land plot, which the lessor has.

When the landlord of the building has the right to lease land plot on which the leased building is located, the lessee may obtain the right to sublease the land plot occupied by the building and necessary for its use. The fate of a land plot that does not belong to the lessor of the building on the right of ownership is decided regardless of the will of the owner of this plot. In accordance with the rule of paragraph 3 of Art. 652 of the Civil Code, the lease of a building or structure located on a land plot that is not owned by the lessor by right of ownership is allowed without the consent of the owner of this plot, unless this contradicts the conditions for using such a plot established by law or an agreement with the owner of the land plot.

In cases where the lessor is the owner of the land plot on which the building or structure being leased is located, the lessee is granted the right to lease or stipulated by the agreement lease of a building or structure, other right to a land plot (clause 2, article 652 of the Civil Code). Another right to a land plot may be stipulated by the parties to the building lease agreement, taking into account the requirements of land legislation. Here we can talk about granting the tenant of the building, as another right, the possibility of gratuitous urgent use of the land plot (Article 24 of the Land Code). The possibility of granting the tenant of the building, by agreement with the lessor - the owner of the land plot, other limited real rights to the land is excluded by the current land legislation.

The right to use the land plot is retained by the tenant of the building when it is sold, i.e. follows the plot (Article 653 of the Civil Code).

The essential terms of the building lease agreement include the terms on the subject of the lease and on the amount of the rent.

In accordance with paragraph 3 of Art. 607 of the Civil Code, the lease agreement for a building or structure must contain data that makes it possible to definitely determine which building (structure) is to be transferred to the tenant as an object of lease. In the absence of these data, the condition on the subject of the lease is considered inconsistent, and the contract is considered not concluded.

In this regard, documents identifying a separate building (structure) must be attached to the lease agreement for a building or structure: a plan of the land plot and (or) a plan of the real estate object indicating the cadastral number of the land plot, the rights to which the lessor - owner of the building (structure) has . For each building and structure there are technical passports with their plans and indicating the intended purpose of these objects. At the same time, garages, boiler rooms, viaducts and similar buildings and structures of a service nature, registered as independent real estate objects, but not indicated as the subject of the contract, cannot be considered as included in its composition according to the rule on the legal fate of things - accessories of the main thing. Norm Art. 135 of the Civil Code is not applicable here.

In accordance with paragraph 1 of Art. 654 of the Civil Code, the lease agreement for a building or structure must provide for the amount of rent. In the absence of a condition on the amount of rent agreed upon by the parties in writing, the lease agreement for a building or structure is considered not concluded. At the same time, the rules for determining the price provided for in paragraph 3 of Art. 424 of the Civil Code, do not apply. The payment for the use of the building or structure established in the lease agreement for a building or structure includes payment for the use of the land plot on which it is located, or the corresponding part of the land plot transferred together with it. This rule can be changed by agreement of the parties or by the prescription of the law (clause 2 of article 654 of the Civil Code). Methods for determining the amount of rent may be different. But in cases where the payment for the lease of a building or structure is established in the contract per unit area of ​​the building (structure) or another indicator of its size, rent is determined based on the actual size of the building or structure transferred to the tenant (clause 3 of article 654 of the Civil Code).

The transfer of a building (structure) by the lessor and its acceptance by the tenant must be carried out according to the transfer act or other transfer document signed by the parties (clause 1 of article 655 of the Civil Code). A deed of transfer or other document of transfer is required in practice as a mandatory registration of the right to lease and, accordingly, the lease agreement. The evasion of one of the parties from signing the document on the transfer of the building (structure) on the terms stipulated by the contract is considered the refusal of the lessor, respectively, from the obligation to transfer the property, and the lessee - from the obligation to accept the property. The signing by the parties of a transfer deed or other transfer document, along with the actual transfer of a building (structure), is prerequisite, which allows us to talk about the proper fulfillment of the obligation to transfer and accept the building (structure) for rent.

Upon termination of the contract, the leased building must be returned to the lessor in a manner similar to the procedure for transferring the building or structure to the lessee, i.e. it is necessary to draw up and sign an act of transfer or other document on the transfer. Additional actions are also possible to check the quality of buildings and structures, etc. The refusal of any party to sign the act of transfer or other document evidencing the return of the building or structure will be considered as a refusal to fulfill obligations to return the subject of lease.

Enterprise lease agreement

Under the lease agreement for the enterprise as a whole as a property complex used for entrepreneurial activity, the lessor undertakes to provide the lessee for a fee for temporary possession and use of land plots, buildings, structures, equipment and other fixed assets included in the enterprise, to transfer in the manner, on the terms and within the limits determined by the contract, stocks of raw materials, fuel, materials and other working capital, rights to use land, water and other natural resources, buildings, structures and equipment, other property rights of the lessor associated with the enterprise, the rights to designations that individualize the activities of the enterprise, and other exclusive rights, as well as to assign the right of claim to him and transfer to him debts related to the enterprise (clause 1 of article 656 of the Civil Code).

The agreement in question is bilateral, mutual and reciprocal.

The subject of the lease agreement is the enterprise as a whole, i.e. the entire property complex used for business activities. As in the contract for the sale of an enterprise, we are talking about the lease of a living entrepreneurial business - a business.

The composition of property and non-property assets transferred by the lessor to the lessee under the enterprise lease agreement allows us to speak of it as a complex contractual formation. It takes place:

a) elements of a classic lease agreement (transfer of individually defined non-consumable items as part of the fixed assets of an enterprise: buildings, structures, land plots, equipment);

b) elements of a loan agreement (transfer of working capital as part of an enterprise: raw materials, materials, Money and so on. - things defined by generic characteristics);

c) elements of the assignment agreement and the transfer of debt (transfer to the lessee of the rights of claim and debts of the lessor);

d) elements of a commercial concession - franchising agreement (granting the tenant the right to use exclusive rights).

At the same time, the enterprise lease agreement is not a mixed agreement, but a special one, independent view lease agreements. In accordance with paragraph 2 of Art. 650 of the Civil Code, the rules on the lease of buildings and structures are applied to the lease of an enterprise, unless otherwise provided by the rules on the lease of an enterprise. The general rules on leasing apply to the leasing of an enterprise to the extent that it does not contradict the regulations on leasing an enterprise and on leasing buildings and structures.

The lessor of an enterprise may be its owner - a legal entity or a citizen-entrepreneur. Unitary enterprises cannot make transactions for the lease of property complexes belonging to them on the basis of the right of economic management or operational management. The alienation of the entire property complex deprives unitary enterprises of the property that served as the basis of their special legal personality, leads to the impossibility of using the owner's property for its intended purpose. As a result, transactions made by unitary enterprises under the rules of an enterprise lease agreement are void in accordance with Art. 168 of the Civil Code, regardless of whether they are committed with the consent of the owner (the body authorized by him) or independently by the enterprise. Bodies that have the authority to dispose of state and municipal property and represent owners of property assigned to unitary enterprises cannot also be lessors under an enterprise lease agreement. They are not endowed with the right to dispose of property belonging to unitary enterprises on the basis of the right of economic management or the right of operational management.

The tenants of an enterprise can be entities that, in accordance with the current legislation, have the right to carry out commercial (entrepreneurial) activities, since the lease of an enterprise pursues entrepreneurial goals.

The main obligation of the lessor is to provide the lessee with the enterprise in a condition that meets the terms of the contract and gives the lessee the opportunity to achieve the commercial goals for which he acquires it for use. The proper condition of the enterprise, corresponding to the terms of the contract, is the result of the proper condition of its material elements, the validity of its property and exclusive rights, and an undiscredited reputation (not a discredited business reputation).

The main right of the landlord is the ability to receive rental payments. Determining the amount of lease payments is mandatory, since by virtue of paragraph 2 of Art. 650 and paragraph 1 of Art. 654 GK condition on rent payments is essential here. Therefore, in the absence of a condition on the amount of rent agreed upon by the parties in writing, the lease agreement for the enterprise is considered not concluded, and the price determination rules provided for in paragraph 3 of Art. 424 of the Civil Code, do not apply. Any form of payment and settlement provided for in Art. 614 GK.

The tenant is granted broad powers to use the property of the leased enterprise (Article 660 of the Civil Code). The tenant has the right, without the consent of the landlord:

a) sell, exchange, provide for temporary use or loan material assets that are part of the property of the leased enterprise;

b) sublease them and transfer their rights and obligations under the lease agreement in relation to such valuables to another person.

The specified administrative actions of the tenant should not entail a decrease in the value of the enterprise or violate other provisions of the enterprise lease agreement. Such actions are impossible in relation to land and other natural resources, as well as in relation to other property specified in the law.

The lessee, unless otherwise provided by the contract, has the right, without the consent of the lessor, to make changes to the composition of the leased property complex, to carry out its reconstruction, expansion, technical re-equipment, increasing its value. The powers of the tenant of the enterprise to dispose of the property that is part of it may be limited in the contract, for example, by a condition on the impossibility of alienating real estate that is part of the leased enterprise.

The main thing in the content of the rights of the tenant is the possibility of disposing of the property transferred to him as part of the leased enterprise. The limits of this right of disposal are limited by the need for the tenant to maintain the value of the enterprise and comply with the restrictions provided for in the contract. Therefore, the right to lease an enterprise according to its legal substance is the right to entrepreneurial use of the property complex, referred to as the enterprise.

The tenant of the enterprise, who has received the right to use the exclusive rights and business reputation of the lessor, may start the production of products, homogeneous products manufactured by the lessor and at the same time the worst quality. Therefore, the parties in the enterprise lease agreement may stipulate conditions that restrict the rights of the tenant, by analogy with the restrictions on the rights of the parties under a commercial concession agreement (Article 1033 of the Civil Code), in particular, provide for restrictions or prohibitions on competition with the lessor.

The lessee of the enterprise has the authority to make improvements to the leased enterprise. At the same time, his rights to receive compensation for the improvements made are much wider than the rights of tenants of other property provided for in Art. 623 GK. Unless otherwise provided by the enterprise lease agreement, the tenant has the right to reimbursement of the cost inseparable improvements leased property, regardless of the permission of the landlord for such improvements (Article 662 of the Civil Code). Under the improvement of a leased enterprise, the current law understands only a qualitative change in its material elements or their increment.

The lessee of the enterprise is obliged to pay rent to the lessor. In addition to this obligation, the tenant of the enterprise is responsible for maintaining the enterprise, paying the costs of its operation and returning the leased enterprise. According to Art. 661 of the Civil Code, the tenant of the enterprise is obliged to maintain the enterprise in proper technical condition during the entire term of the contract, including the implementation of its current and overhaul(i.e. repair of individually-defined things that are part of the enterprise). The obligation of the tenant to maintain the enterprise during the entire lease term in proper technical condition also means maintaining the functional integrity of the enterprise, its ability to function: to produce products, to provide services.

Before concluding this agreement, the parties must take mandatory preliminary steps to certify the composition of the transferred enterprise. We are talking about a complete inventory of the property of the enterprise (which is one of the grounds for determining the amount of rent). The act of inventory is supplemented by the conclusion of an independent auditor on the composition and financial condition of the enterprise, which confirms the reliability of the balance sheet of the enterprise. The distribution of responsibilities and costs for the inventory and audit should be based on the agreement of the parties.

As a result, the parties, before signing the lease agreement for the enterprise, must draw up or consider:

Act of inventory;

Balance sheet;

The conclusion of an independent auditor on the composition and value of the enterprise;

A list of debts (obligations) included in the composition of the enterprise, indicating creditors, the nature, size and timing of their claims.

In accordance with paragraph 1 of Art. 658 of the Civil Code, an enterprise lease agreement must be concluded in writing by drawing up one document signed by the parties (clause 2 of article 434). Failure to comply with the form of the enterprise lease agreement entails its invalidity (paragraph 3 of article 658 of the Civil Code).

An enterprise lease agreement as a transaction with real estate is subject to state registration and is considered concluded from the moment of such registration (Article 22 of the Law on Registration of Rights to Real Estate and Transactions with It).

Execution and termination of the enterprise lease agreement

The transfer of the leased enterprise from the lessor to the tenant is carried out according to the deed of transfer (Article 659 of the Civil Code). From the essence of the transaction itself, it follows that the deed of transfer must be accompanied by an inventory act, a balance sheet, an independent auditor's report on the composition and value of the enterprise, as well as a list of debts (obligations) included in the enterprise. Preparation of the enterprise for transfer, including the preparation and submission for signing of the deed of transfer, is the responsibility of the lessor and is carried out at his expense, unless otherwise provided by the enterprise lease agreement (Article 659 of the Civil Code). The transfer of the enterprise for rent is considered completed only after the signing of the deed of transfer by the lessee and the lessor.

In addition to the deed of transfer, the parties to the lease of an enterprise must properly execute the transfer of a number of individual elements, constituting the enterprise as a property complex. As a result, the transfer of an enterprise must be complex. The provisions set forth in § 10 Ch. 33 of this volume of the textbook and relating to the nature and procedure for the complex alienation of an enterprise in the performance of an enterprise sale agreement, are also valid for a lease agreement.

The transfer of real estate as part of a leased enterprise must be formalized by the relevant documents on the transfer of a specific property for rent. In accordance with paragraph 2 of Art. 22 of the Law on Registration of Rights to Real Estate, the registered right to lease an enterprise is the basis for making entries on the encumbrance of the right to each object of real estate that is part of the enterprise as a property complex.

The transfer of exclusive rights as part of a leased enterprise requires registration of the relevant license agreements and other agreements with their subsequent state registration. It is in these agreements that the limits of the rights of the tenant of the enterprise to use the exclusive rights that are part of the enterprise should be determined. The exception is the commercial designation of the enterprise, the procedure and conditions for granting the right to use which can be fixed in the enterprise lease agreement itself (clause 5 of article 1539 of the Civil Code).

The transfer of debts that are part of the leased enterprise is carried out in compliance with the rights of creditors, defined in Art. 657 of the Civil Code is similar to the rights of creditors in the sale and purchase of an enterprise (Article 562 of the Civil Code):

Mandatory written notice to the landlord;

The right to demand the termination or early performance of the obligation and compensation for the losses caused by this;

Joint and several liability of the lessor and lessee for debts included in the transferred enterprise, which were transferred to the lessee without the consent of the creditor.

Upon termination of the enterprise lease agreement, the leased property complex must be returned to the lessor (Article 664 of the Civil Code). The return of the enterprise by the lessee to the lessor requires a number of special actions. The rights of possession and use of property owned by other persons, including land and other natural resources, transferred to the lessee by the lessor, must be transferred to the lessor in the manner prescribed by law or other legal acts (clause 1 of article 656 of the Civil Code). The tenant, unless otherwise provided by the contract, is also obliged to take actions to prepare the enterprise for transfer to the lessor, including the preparation and submission for signing of the deed of transfer.

Prior to the transfer of the enterprise to be returned to the lessor, creditors under the obligations that are part of the enterprise must be notified by the lessee of the return of the enterprise to the lessor. At the same time, the rights of creditors are regulated by the norms of Art. 657 GK.

Legal regulation of the contract for the lease of buildings and structures. The rules governing relations arising from the lease of buildings and structures are enshrined in § 4 of Chapter 34 of the Civil Code of the Russian Federation.

Since the contract for the lease of buildings and structures is a type of lease agreement, the general provisions on lease contained in § 1 of Chapter 34 of the Civil Code of the Russian Federation apply subsidiarily to this contract, unless otherwise provided by the rules of the Civil Code of the Russian Federation on the contract for the lease of buildings and structures.

Subjects of the right of economic management (state and municipal unitary enterprises) have the right to lease real estate with the consent of the owner of this property (Russian Federation, subjects Russian Federation, municipalities).

State and municipal enterprises based on the right of operational management (state-owned enterprises) have the right to lease out both movable and immovable property assigned to them, only with the consent of the owner of this property.

Institutions to which property is assigned on the basis of the right of operational management may lease property subject to a number of conditions.

If a building or structure that is state or municipal property and is not assigned to state and municipal enterprises and institutions is rented out, then the lessors under this agreement are state authorities and local governments within their competence established by acts defining the status of these bodies .

The tenant may be capable subjects of civil law.

Form of the contract for the lease of buildings and structures.

Special requirements are imposed on the form of a lease agreement for buildings and structures.

According to paragraph 1 of Art. 651 of the Civil Code of the Russian Federation, a lease agreement for a building or structure is concluded in writing.

At the same time, it is established that of all the ways to conclude an agreement in a simple written form, provided for in Art. 434 of the Civil Code of the Russian Federation, only one is applicable to a lease agreement for a building or structure - drawing up one document signed by the parties.

Failure to comply with the form of a lease agreement for a building or structure entails its invalidity (Article 651 of the Civil Code of the Russian Federation). This is another feature of the form of the contract.

In addition, if the term of the lease agreement for a building and structure is at least one year, the agreement 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). Failure to comply with the requirement for state registration of a building or structure lease agreement shall entail its non-conclusion.

The norm establishing the need for state registration of an agreement concluded for a period of at least a year, as a condition for the validity of the agreement, was considered by the Constitutional Court of the Russian Federation for its compliance with the Constitution of Russia.

According to the applicant, who applied to the Constitutional Court of the Russian Federation, paragraph 1 of Art. 165 and paragraph 3 of Art. 433, paragraph 2 of Art. 651 of the Civil Code of the Russian Federation deprive interested parties of the opportunity to conclude an agreement on the basis of free will and acquire rights and obligations under the transaction without authorization from the state authority that registers the agreement, and thereby unreasonably restrict the constitutional right of everyone to freely use their abilities and property for entrepreneurial and other economic activity not prohibited by law (part 1 of article 35 of the Constitution of the Russian Federation), and if the contract is not registered, deprive the party in the contract of the right to judicial protection (part 1 of article 46 of the Constitution of the Russian Federation).

In refusing to accept the application, the Constitutional Court of the Russian Federation indicated that the right of a person to rent a particular premises arises by virtue of civil contract; any party to the lease agreement may register this agreement; at the same time, the registration of the contract cannot be refused if it is drawn up in the proper form (in writing by drawing up one document) and documents are attached to it, the list of which is established by law. Thus, the state registration of the lease agreement for a building or structure, as well as the state registration of the right to lease it, carried out by the relevant institution, cannot replace the lease agreement as the basis for the emergence, change and termination of the right to lease, interfere with the content of the agreement.

State registration is intended only to certify the legal force of the relevant title documents on the part of the state. Thus, state registration creates guarantees for the proper fulfillment of obligations by the parties and, therefore, contributes to the strengthening and stability of civil circulation as a whole. It does not affect the very content of this civil law, does not restrict the freedom of contract, the legal equality of the parties, the autonomy of their will and property independence, and therefore cannot be considered as unacceptable arbitrary state interference in private affairs or restriction of human and citizen rights, including those guaranteed by the Constitution of the Russian Federation. Federation of the right to own, use and dispose of property legally owned by a person, as well as freedom of economic activity.

Despite the fact that state registration of a lease agreement for a building or structure concluded for a period of at least a year is mandatory, its absence, within the meaning of these legal provisions, does not in itself deprive the applicant of the right to judicial protection.

Position Constitutional Court Russian Federation seems reasonable.

IN judicial practice often questions arise regarding the rules for calculating the term of the contract in order to determine whether it is subject to state registration, as well as regarding the need to register individual lease agreements for buildings and structures.

The Supreme Arbitration Court of the Russian Federation has developed the following positions on these issues.

The validity period of the building (structure) lease agreement, determined from the 1st day of any month of the current year to the 30th (31st) day of the previous month of the next year, in order to apply paragraph 2 of Art. 651 of the Civil Code of the Russian Federation is equal to a year.

If the parties have established that the terms of the building lease agreement concluded by them apply to their relations that existed for a certain period of time before its conclusion, then when calculating the term of the building lease in order to determine whether the agreement is subject to state registration or not, such a period of time is not included in the term rent.

Not subject to state registration:

1) preliminary agreement, according to which the parties undertake to conclude a lease agreement subject to state registration in the future;

2) a building lease agreement renewed for indefinite term, since according to paragraph 2 of Art. 651 of the Civil Code of the Russian Federation subject to state registration is a building lease agreement concluded only for a period of at least one year;

3) a new lease agreement, which governs the relationship of the parties, when the lease agreement for a building concluded for a period of less than one year is extended for the same period after the end of the initial lease period;

4) encumbrances in the form of tenant's rights arising on the basis of a building lease agreement concluded for a period of less than one year.

Subject to state registration:

1) agreement of the parties to change the amount of the rent specified by them in the lease agreement for real estate subject to state registration, since such an agreement is an integral part of the lease agreement and changes the content and conditions of the encumbrance generated by the lease agreement;

2) an agreement on the transfer of debt under a building lease agreement subject to state registration.

Obligations of the lessor under the lease agreement for buildings and structures.

Under a lease agreement for buildings and structures, the lessor is obliged to:

1. Transfer the building or structure to the tenant.

According to Art. 655 of the Civil Code of the Russian Federation, the transfer of a building or structure by the lessor and its acceptance by the tenant is carried out according to the transfer act or other transfer document signed by the parties.

At the same time, unless otherwise provided by law or the lease agreement for a building or structure, the obligation of the lessor to transfer the building or structure to the lessee is considered fulfilled after it is provided to the lessee for possession or use and the parties sign the relevant transfer document.

That is, until the actual transfer of the building or structure to the tenant and the signing by the parties of the deed of transfer or other relevant document, the lease agreement for the building or structure cannot be considered executed.

The legislator considers the lessor's evasion from signing a document on the transfer of a building or structure on the terms stipulated by the contract as a refusal to fulfill the obligation to transfer property.

If the lessor fails to fulfill the obligation to transfer the building or structure, the lessee has the right to present the same requirements as under the general provisions on the lease agreement (see Chapter 12).

2. Transfer the building or structure along with all accessories and documents.

3. Transfer the building or structure in a condition that complies with the terms of the contract and the purpose of the property.

4. Warn the tenant of all rights of third parties to the building or structure being leased.

5. To carry out major repairs of the leased building or structure at its own expense.

6. Reimburse the tenant for the cost of inseparable property improvements.

7. Do not conclude a lease agreement with another person within a year from the date of expiration of the agreement with the tenant, to whom the landlord refused to conclude an agreement for a new term.

Obligations of the tenant under the lease agreement for buildings and structures.

A tenant under a lease agreement for buildings and structures has the same obligations as a tenant under the general provisions of a lease agreement (see Chapter 12). Therefore, we will only list the relevant responsibilities. So, under the lease agreement for buildings and structures, the tenant is obliged:

1. Use the rented building or structure in accordance with the terms of the contract.

2. Timely pay the rent for the use of the building or structure.

3. Maintain the rented building or structure in proper condition, carry out current repairs at its own expense and bear the costs of maintaining the building or structure.

4. Upon termination of the lease agreement, return the building or structure to the lessor.

As already noted, the transfer and acceptance of real estate are carried out according to the transfer act signed by the parties or another document on the transfer.

The legislator considers the tenant's evasion from signing a document on the transfer of a building or structure on the terms stipulated by the contract as a refusal to fulfill the obligation to return the property (Article 655 of the Civil Code of the Russian Federation).

5. Do not transfer your rights and obligations under the lease agreement and the leased property to third parties without the consent of the lessor.

A lease agreement for buildings and structures is a documentary agreement according to which the lessor transfers real estate (structure or building) to the tenant for temporary use for further operation. Such a transaction is regulated by article 650, paragraph 1 of the Civil Code.

Basic concepts

Under construction V this document imply the result of construction, which is presented in the form of a volumetric, linear or planar building system, having underground and ground parts, as well as consisting of load-bearing and enclosing (in some cases) structures. This form of structure is designed to organize production processes various types or storage of products and goods, as well as the temporary stay of people.

Under building it is necessary to understand a different result of construction, which is expressed in the form of a three-dimensional building system that has ground and underground parts, including various types of premises, networks and engineering support systems. This form is intended for people living and working, storing products, placing animals or organizing production.

aim The lease agreement is to ensure the transfer of property for temporary use or possession, in which both parties to the agreement are interested.

Interest of the landlord consists in the realization of his interests as an owner, namely, in deriving income from the production assets owned by him or recently acquired for this purpose.

Interest of the tenant in the fact of using leased real estate lies in the possibility of effective use of temporarily hired and operated property for production purposes, without a strong financial burden in terms of acquisition costs.

The concept of a lease agreement

Lease contract real estate is consensual (that is, it is concluded at the time of signing), mutual (both parties have rights and obligations in relation to each other), paid (involves payment for the use of the subject of the agreement). If the landlord is not the owner of real estate transferred for temporary use, then this type of transaction is possible only if all necessary restrictions stipulated by the owner by virtue of law.

The document is concluded strictly in writing in accordance with Article 651 of the Civil Code of the Russian Federation, where a separate copy is drawn up for each interested party and signed by all participants in the transaction. Failure to comply with this paragraph entails the invalidity of the agreement from a legal point of view.

In the lease agreement for buildings (structures) in without fail information about the property transferred for temporary use is prescribed. Namely:

• Name;
• short description;
• location;
• the amount of rent for a period of time (month, quarter, half year or year);
• payment schedule, including the first one.

As a second clause, an addendum called a “Property Description” may be attached to the agreement. In addition, copies of the following documents are also attached to the document:

• certificate of registration of ownership in a state body;
• another document, according to which the lessor has the right to lease the building (structure);
• technical passport of the object.

After signing by both parties, an agreement lasting more than a year is subject to mandatory registration. After that, it officially enters into force and becomes a legally justified document. Otherwise, the agreement will have no legal effect.

An obligatory part of the concluded lease contract is the form of an additional agreement, which specifies the conditions for providing the object for use. This document officially confirms its acceptance and transfer from the landlord to the tenant, which both parties agree with their signatures and seals.

Contract form

An agreement on the lease of buildings or structures is a rather serious document, therefore it must be drawn up in accordance with the relevant requirements and include all the most important points and points. It must contain:

• Title of the document;
• date and locality. They are indicated opposite each other a little below the name of the form;
• The name of the parties to the agreement, namely: the name of the organization of the lessor, in whose person it is represented, on the basis of which constituent documents it operates. The tenant is listed in the same way.
• The main part of the form. Subject of the contract. One of the largest in terms of volume and importance of the paragraphs of the form.

1. It is noted here that the landlord transfers a building or structure into temporary possession for the purpose of use with the obligatory indication of the address, ownership rights (with information about the supporting document) and that part of the rights that is transferred to the tenant along with the property. In addition, this section contains detailed information about the object of the contract: general characteristics, purpose, area and number of storeys, shortcomings and other parameters. A note is also made on the technical characteristics based on an extract from technical passport building.
2. Further, all information about the land plot adjacent to the leased object and transferred along with it is prescribed. Namely: cadastral number, location, purpose of use, land category, total area, cadastral plan.
3. Then the purpose for which the tenant needs the building is indicated;
4. The next point is market price the object of the contract, taking into account the revaluation coefficients and depreciation rates as of the date of drawing up and signing the form;
5. Without fail, the document specifies the water supply and sewerage systems, electrical equipment, telephone lines and other property transferred along with the construction. This is listed in additional agreement, and a note is made in the contract itself;
6. The next item determines at whose expense the building will be equipped with fire and security systems;
7. Then a note is made about the tenant's right to buy the building if the landlord wants to put it up for sale.

• Procedure for the transfer of real estate. No less significant section of the contract, although smaller in volume than the previous one. This specifies the period during which the lessor is obliged to transfer the object of the agreement to the other party after its conclusion. A note is made about the condition of the building itself, as well as about technical specifications property transferred with it. Be sure to indicate all the shortcomings and disadvantages in order to avoid further disputes.
• Rights and obligations of the parties. This section governs all issues related to the liability of the parties under this agreement and the rental object.

1. The rights of the landlord are: control over compliance with the terms of the document by the tenant; freely visiting the leased building in order to check the condition of their property; exercising other powers available to him as the owner and not limited by this agreement. Obligations mean: providing the tenant with the specified building, in accordance with all clauses of the contract; reception necessary measures to eliminate the consequences of accidents that arose through no fault of the other party; timely overhaul; informing the client about the rights of third parties to property or about the alienation of property rights;
2. The tenant's rights are: transfer of the accepted building to sublease with the written consent of the owner; seizure of produced on their own and means of improvement (without damage to the main property) in case of early termination of the contract or its termination; receiving from the lessor the cost of inseparable changes (if they were made with the consent of the copyright holder); carrying out reorganization, redevelopment or repair with the consent of the owner. The obligations of the tenant include: taking possession of the agreed property and using it in accordance with the specified purposes; maintenance in fit condition and the product of small current repair; timely payment of the amount agreed upon under the contract; compliance with all safety standards (technical, fire, sanitary and others); providing access to the object to the right holder and inspection services; timely notification of the desire to terminate or extend the agreement.

• The validity period of the document. This section discusses the date of entry into force of the agreements between the parties, as well as the end of their validity. In addition, in many similar contracts there is a clause that refers to automatic renewal if, after the expiration of the term, none of the parties wished to terminate it;
• Rent and payments. This section of the form is dedicated to financial matters. First of all, the amount of payment per square meter of area is discussed, as well as total cost for the entire object. The emphasis is on the fact that the amount is fixed and cannot be changed until the end of the contract. In addition, the payment schedule is detailed - the first and subsequent, as well as the method of transferring funds.
• Liability of the parties and disputes. This section is intended to resolve all possible disputes that may arise in the course of the contract. In particular, for non-fulfillment or evasion of obligations under the document, the parties bear civil liability in accordance with the legislation of the country. Disputable issues can be resolved through joint negotiations, pre-trial services or in court. It also discusses the amount of the penalty that the landlord has the right to demand from the second party in case of late payment of the rent.
• Termination of an agreement. In order to avoid various omissions, this paragraph details the reasons for which early termination of the agreement is possible. Since both parties can demand it, the list of reasons also differs. The owner of the building may terminate the contract if the object is used in an inappropriate way or its condition has deteriorated significantly due to the fault of the tenant, as well as in case of a prolonged violation of the payment procedure. The second party may ask to terminate the contract if the property was not provided on time or it is not suitable for use for legal or technical reasons.
• Final provisions. Additional points under the agreement are indicated here, which were not included in the remaining paragraphs. For example, that the right of ownership passes to the successor of a legal entity in the event of its reorganization or liquidation. It will not be superfluous to point out the timely notification of the second party in case of changes in details or contact details. In addition, a note is made about the number of copies (according to the number of interested parties) and their equal legal force. Immediately put a notice of the attached additions to the contract and their number.
• Addresses and details. Both parties to the agreement are of equal importance, therefore their name and details are placed in two columns opposite each other. The seals and signatures of representatives of organizations are also put here.

Application form to the contract

The continuation of the lease agreement for a building (structure) is a deed of transfer, according to which the property is transferred to the tenant for the purpose of further operation. It must contain the following lines:

• Title of the document;
• Date and location. These entries are made on the same line opposite each other, but below the heading;
• Information about the parties to the agreement. It is prescribed, as in the contract itself - indicating the persons-representatives and the documents on the basis of which they act;
• Main part. It makes a reference to the property lease agreement, on the basis of which the act is drawn up, as well as a message that the landlord transfers it, and the tenant accepts it together with the property included in it and partial ownership.
• Next, a note is made about the number of copies, as well as who keeps them;
• Signatures of both parties, endorsed by the seals of organizations. They are also located opposite each other, as equal partners.

Under a lease agreement for a building or structure, the lessor undertakes to transfer the building or structure to the tenant for temporary possession and use or for temporary use.

Any individual or legal entity having the title of both the owner of the building or structure, and the person authorized by law or the owner to lease these objects may act as a lessor under a lease agreement for buildings and structures. If a building or structure that is state or municipal property and is not assigned to state and municipal enterprises and institutions is leased, then the lessors under this agreement are state authorities and local self-government bodies within their competence established by acts defining the status of these bodies.

Other persons entitled to be lessors by virtue of law may include: subjects of the right of economic management - unitary state and municipal enterprises; state-owned enterprise as a subject of the right of operational management; an institution in relation to buildings and structures acquired by it as a result of entrepreneurial activity permitted to the institution by its constituent documents. At the same time, state and municipal unitary enterprises lease buildings and structures with the consent of the owner.

Tenants can be citizens and legal entities, but, as a rule, commercial and non-commercial organizations act as tenants, renting buildings and structures either for business activities or (in relation to buildings) to ensure their activities as an organization (for example, to accommodate an office). Only legal entities can be tenants of residential buildings.

Article 651 of the Civil Code establishes that the contract is concluded in writing by drawing up one document signed by the parties. Its conclusion through the exchange of means of written communication or in the form of acceptance by actions is unacceptable. Failure to comply with the form of this agreement entails its invalidity. A lease agreement for buildings or structures is subject to state registration if it is concluded for a period of at least one year. At the same time, registration of a lease is possible only if there is state registration of previously arisen rights to this object in the Unified State Register of Rights to Real Estate. In accordance with general rule on the procedure for concluding transactions, a lease agreement for a building or structure for a period of more than one year is considered concluded only from the moment of its state registration.

Among the essential terms of the contract for the lease of buildings and structures are the terms on the subject of the contract and on the amount of rent. The subject of the contract are buildings and structures, i.e. a kind of real estate of special value and significance, which is inextricably linked with the land plot occupied by this real estate and necessary for its use.

The rent refers to essential conditions of this agreement and in the absence of a condition on its size agreed by the parties in writing, the lease agreement for a building or structure is considered not concluded. At the same time, the rules for determining the price provided for in paragraph 3 of Art. 424 of the Civil Code, do not apply.

The rent for a building or structure includes a fee for the use of a land plot. This rule is dispositive, and a separate payment for land along with the payment for the lease of a building or structure may be provided for by law or an agreement. If the payment for the lease of a building or structure is established in the contract per unit area of ​​the building (structure) or another indicator of its size (for example, 1 cubic meter), the rent is determined based on the actual size of the building or structure transferred to the tenant.

Payment is usually made monthly or quarterly. Pre-payment is widely used.

The contract for the lease of a building and structure can be concluded both for a fixed period (it can be both a short-term lease and a long-term one), or for an indefinite one. Single deadline lease of buildings and structures is not established by law. Maximum terms can be established by legal acts only for individual cases of leasing buildings and structures.

The rights and obligations of the parties under the lease agreement for buildings and structures in comparison with the rights and obligations under the agreement concluded on the basis of general provisions about rent, were not subjected to cardinal changes.

The transfer of the building and structure and its return constitute one of the main obligations of the parties. Considering the complexity and high cost of such objects as buildings and structures, their particular importance for civil circulation, it is very important to accurately determine the moment of transfer, at the onset of which the parties' rights and obligations arise and terminate, and on which their content depends.

The transfer of a building or structure includes not only the provision of a building or structure to the tenant for possession or use, but also the signing by the parties of a deed of transfer or other transfer document signed by the parties. This document fixes the sanitary and technical condition leased building or structure. The transfer of a building or structure, as a rule, takes place after a certain time has elapsed from the date of conclusion of the contract (within 10 days, one month, etc.).

The conditions for the lease of a land plot are predetermined by the nature of the rights of the lessor to him and must be determined by agreement of the parties. In the Civil Code, these rights are indicated only in relation to a situation where the lessor of a building or structure is the owner of the land plot on which the leased object is located. In this case, the tenant is granted the right to lease or another right provided for by the contract to the relevant part of the land plot (the right of urgent use, for example). If the contract of lease of a building or structure does not contain any indications of the tenant's right to the land plot, it is considered that the tenant shall transfer the right to use the corresponding part of the land plot for the term of the lease of the building or structure.

When selling a land plot on which a leased building or structure is located, to another person, the tenant retains the right to use the part of the land plot that is occupied by the building or structure. The terms of such use remain the same as they existed before the alienation of the land plot.

The consequences of the transfer by the lessor and the acceptance by the lessee under the deed of transfer of a building or structure with defects are determined on the basis of the general rules on the consequences of the transfer of property with defects by the lessor.

Based on the general provisions on lease, the consequences associated with the violation by the lessor of the obligation to warn the tenant about the rights of third parties to the leased objects are also determined.

Termination of the contract for the lease of buildings and structures, liability for its performance or improper performance are also based on the general provisions on the lease.